Development Aggression
Observations on Human Rights Conditions
in the PT Freeport Indonesia Contract of Work Areas
With
Recommendations
Prepared by Abigail
Abrash, Consultant
For the Robert F.
Kennedy Memorial Center for Human Rights
July 2002
Development Aggression: Observations on Human Rights
Conditions in the PT Freeport Indonesia Contract of Work Areas With
Recommendations, July 2002.
This document was prepared with the generous financial
support of the Richard and Rhoda Goldman Fund and the support and good will of
many people in Papua and Indonesia.
“Development is development aggression when the people
become the victims, not the beneficiaries; when the people are set aside in
development planning, not partners in development; and when people are
considered mere resources for profit-oriented development, not the center of
development . . . . Development aggression violates the human rights of our
people in all their dimensions—economic, social, cultural, civil and political.”
The Philippine Alliance of Human Rights Advocates, as
quoted in Ramon C. Casiple, “Human Rights vs. Development Aggression: Can
Development Violate Human Rights?” Human Rights Forum: Focus on
Development Aggression. Quezon City: Philippine Human Rights Information
Center, 1996.
Project Background............ 4
Information Collected................... 6
Historical and Political Context. 6
Papua’s Integration into the Republic of Indonesia..... 8
Freeport’s Contract of Work with
the Indonesian Government 10
Human Rights Violations............ 11
Support to the Indonesian Military. 13
Cultural/Environmental Impact and Development Aggression 16
Community Actions
Seeking Redress....... 22
Recommendations................. 23
Further Investigation
Needed............ 23
Recommendations to Freeport 24
Recommendations to the Government of Indonesia............ 25
Terms of Reference............ 36
Team Member Biographies.......... 41
This paper is a presentation of observations,
conclusions, and recommendations regarding human rights conditions in the PT
Freeport Indonesia (“PTFI”) Contract of Work (“COW”) areas in Papua,[1]
Indonesia. PTFI is majority owned and controlled by US‑based mining
company Freeport-McMoRan Copper & Gold Inc. (“Freeport”),[2]
and it operates the world’s largest copper and gold mining enterprise in the
Papuan subdistrict (kabupaten) of Mimika. This mining operation, located primarily on the southern slopes
of the Jayawijaya mountains, includes a project area (e.g. mine site, mill) and
transportation, administrative, and other infrastructure, as well as extensive
exploration concessions throughout other parts of the mountain range.
This paper is based, in part, on the Robert F. Kennedy
Memorial Center for Human Rights’ (“RFK Center”) role as co-sponsor of a joint
Indonesian-international team[3]
that attempted to carry out an independent examination of human rights
conditions in PTFI’s COW areas, described above. The assessment team’s remaining co-sponsors were the
Jakarta-based Indonesian Legal Aid Foundation (Yayasan Lembaga Bantuan Hukum
Indonesia or “YLBHI”) and the Jayapura-based Institute for Human Rights
Studies and Advocacy (Lembaga Studi dan Advokasi Hak Asasi Manusia or “ELSHAM”). This paper draws upon the team’s
observations during the assessment’s preliminary phase in September 1999, and
on additional fact-finding and analysis conducted by team members and RFK
Center staff before and since that time.
The observations, conclusions, and recommendations presented here are
solely those of the author.
The presentation below has been circumscribed by
Freeport’s lack of cooperation and other interference with the assessment
process.[4] Due to political sensitivities on the part
of Indonesia’s National Commission on Human Rights (“Komnas HAM”) and the
Indonesian provincial police in Papua, it has not been possible to carry out
the on-site fact-finding necessary for completion of the proposed independent
assessment. This paper is therefore not
intended to serve as the report of a comprehensive independent human rights
assessment; instead, it presents information and analysis compiled and prepared
by the author with support from the RFK Center.
The RFK Center implements the vision of Robert F.
Kennedy by promoting the full spectrum of human rights both in the United
States and globally. The RFK Center develops and carries out projects which
enhance and complement the work of the RFK Human Rights Award laureates and
that promote social change. Established
in 1984, the Human Rights Award honors creative individuals who are, often at
great personal risk, engaged in strategic and nonviolent efforts to overcome
serious human rights violations.
The RFK Center’s Indonesia work began with the
presentation of the 1993 RFK Human Rights Award to Indonesian lawyer Bambang
Widjojanto. Mr. Widjojanto, honored for
his work defending the rights of indigenous peoples in Papua, served for seven
years as director of the Papua branch of YLBHI, Indonesia’s leading human
rights organization. Since 1993, the
RFK Center has developed a special focus on Papua, and it has monitored human
rights concerns specifically associated with Freeport.
The proposed human rights assessment was developed in
response to external requests for an independent and comprehensive human rights
inquiry into the Freeport COW areas.
These requests came from both US-based Freeport shareholders (the Interfaith
Center on Corporate Responsibility and the Seattle Mennonite Church) and local
indigenous communities (as represented by the Amungme Tribal Council—Lembaga
Musyawarah Adat Suku Amungme or “LEMASA”).
The RFK Center agreed to undertake the assessment with the partnership
of YLBHI and ELSHAM.
Following a two-year planning process, the RFK Center,
YLBHI, and ELSHAM organized and attempted to conduct a preliminary planning and
fact‑finding mission to Freeport’s mining operation in the Papuan kabupaten
of Mimika. This initial stage in
the assessment process included a series of meetings in Jakarta with Komnas HAM
and senior PTFI management.[5]
These were to be followed by team meetings in Jayapura and a visit to the
mining town of Timika. Team members
discussed the aforementioned meetings in Papua with both Komnas HAM and
PTFI/Freeport senior management and staff prior to traveling to the province,
and both parties conferred their formal approval. However, the meetings in Jayapura were interrupted, and a visit
to Timika prevented, when the provincial police interrogated and expelled two
of the international team members from Papua.[6] Immigration officials in Jakarta determined
that the police deportation and blacklisting order had no legal basis, and the
two individuals remained in Indonesia to finish out the assessment’s
preliminary phase. The second stay in
Jakarta was used for additional team meetings and appointments with Komnas HAM,
LEMASA, and senior staff and management of PTFI and Freeport. Komnas HAM also issued a public statement
reiterating its support for the assessment team’s activities.
After the blocked attempt to initiate the assessment
in September 1999, however, PTFI/Freeport posed new obstacles to the assessment
effort. Senior officials from both PTFI
and Freeport met with Komnas HAM members to challenge both the scope of the
assessment and the composition of the team.
Indicating that they could not support the assessment in its proposed
form, they persuaded Komnas HAM to withdraw its support for the initiative
until the concerns were resolved.
Following a series of meetings over several months between Freeport
officials, assessment team members, and RFK Center staff, Freeport agreed to
withdraw its objections and to allow a fully independent investigation to move
forward. Unfortunately, by this time
the situation on the ground in Papua had changed. In a September 2000 meeting in Jakarta, Komnas HAM officials
proposed that the assessment be delayed until the political tensions in Papua
decreased and the security of team members could be ensured. After encountering further delay, the RFK
Center and other partner organizations determined that an independent assessment
could not take place at that time.
Because the
assessment was not done, it was not possible to prepare a full report on the
findings of the independent investigation.
However, much information was collected in the process of developing the
assessment parameters, and several of the team members compiled documentation
from other sources. Because this
information is significant, it is appropriate to release this report in the hopes
that it will encourage further scrutiny of the human rights situation in Papua
in the future. This paper is intended
to convey the information available as well as recommendations to Freeport and
other actors in the hopes that it will support positive changes for the people
of Papua.
The relationship between
Freeport and the indigenous Papuan peoples has been influenced by a set of
interrelated dynamics, with explicit human rights dimensions, specifically: (1)
the flawed integration of Papua into the Republic of Indonesia and subsequent
Papuan resistance to Indonesian sovereignty; (2) the top-down, paternalistic,
and nonparticipatory economic and social development policies and practices of
the Indonesian government; (3) the counter-insurgency operations of the
Indonesian military which have been carried out in order to defend Freeport’s
mining operations and other investment projects externally imposed upon local
indigenous communities; (4) the corrupt governance practices of the Suharto
regime and overall lack of the rule of law in Indonesia; (5) and Freeport
management’s willingness to operate within such a framework[7]
as well as to introduce or allow particular terms in the company’s COWs.
The historical
and political context in which US-based Freeport established mining operations
in Papua is instructive and reveals the early seeds of conflict between the
corporation and indigenous Papuans.
The Amungme and Kamoro peoples[8]
are the original indigenous landowners of the areas that now comprise
Freeport’s COW A mining and infrastructure (e.g., port site, roads, airport)
zone. Other indigenous Papuan groups,
including the Moni and Nduga peoples, are the original landowners in Freeport’s
COW B exploration concession area.
In 1967, at the time of the establishment of
Freeport’s first base camps, the Amungme and Kamoro communities numbered
several thousand people,[9]
organized in clan-based village social and governance structures. With lands encompassing the area’s tropical
rainforest, coastal lowlands, glacial mountains, and river valleys, the Kamoro
(lowlanders) and Amungme (highlanders) practice a subsistence economy based
upon sustainable agriculture and forest products, fishing, and hunting. Their cultures and spiritual values are
intimately entwined with the surrounding landscape.
During the course of the 20th century,
British naturalist expeditions, mountaineering teams, Japanese troops, Catholic
and Protestant missionaries, and officials of the Dutch colonial administration
all visited Amungme and Kamoro lands.[10] What differentiates Freeport’s presence from
that of previous visitors to the area is that the mining operation has directly
and indirectly caused a massive, permanent, and escalating disruption to the
lives of the indigenous inhabitants. It
has initiated new and dominant economic, political, social, and cultural
paradigms that have not respected the economies, governance structures, laws
and customary practices, spiritual and ecological values, social arrangements,
or cultural traditions of the original indigenous landowners.
New arrivals swarming to the economic boomtown created
by the mine and its infrastructure include thousands of Javanese and Balinese
settlers sponsored by the Indonesian government’s problematic transmigration
program,[11] spontaneous
migrants such as traders from Sulawesi, thousands of Papuans from other parts
of the territory, and North American, Australian, New Zealand, and Javanese
employees of Freeport. By the 1990s,
the area’s population had exploded to more than 60,000 people, making Kabupaten
Mimika the fastest-growing subdistrict in the entire Indonesian
archipelago. As a result, the Amungme
and Kamoro—now minorities on their own lands—continually raise and seek
remedies for a variety of environmental and other human rights concerns.
Under international human rights law, all peoples
possess the right to self-determination and to sovereignty over their natural
resources.[12] This right applies, in particular, to
populations living under colonial domination.
In the case of Papua, serious questions remain about the legitimacy of
the territory’s integration into Indonesia and the validity of the Indonesian
central government’s authority over Papuan natural resources, including those
exploited by Freeport.
During the 1960s, the United Nations (“UN”)—in an
effort strongly supported by the US government—brokered the transfer of control
over Papua from the Dutch colonial administration to the Republic of
Indonesia. Indigenous Papuans were
excluded from the negotiations, which culminated in the bilateral New York
Agreement of 1962. The year before,
Papuans had elected representatives to the newly established New Guinea
Council, one purpose of which was to advise the Dutch colonial administration
on how Papuans might exercise their right of self-determination;[13]
however, these elected officials were not invited to participate in the
UN-sponsored sovereignty talks leading up to the 1962 Agreement.
Seven years later, after Indonesia had established
full control over Papua, the Act of Free Choice (“AFC”) was held to satisfy the
New York Agreement’s requirement of a formal “act of self-determination.”[14] In setting up the referendum on the AFC, the
Indonesian government declined to employ the mixed method of voting recommended
by the UN Representative in West Irian (Bolivian diplomat Fernando Ortiz Sanz),[15]
and instead created eight consultative assemblies totaling 1,026 Papuans, in
which each member was meant to represent approximately 750 inhabitants. These assemblies did not vote, relying
instead upon the process of musyawarah or “consultation”, which necessitates
consensus. This process prompted
protests from Ortiz Sanz and delegates to the UN General Assembly, who cited an
atmosphere of repression in which the Indonesian government violated Papuans’
rights of free speech, movement, and assembly, and continuously exercised
“tight political control over the population.”[16] Foreign journalists on site in Papua before
and during the Act of Free Choice reported that the Indonesian government
detained scores of Papuans to prevent them from disrupting the Act.[17]
Despite such obstacles, Ortiz Sanz reported on
numerous attempts by Papuans to communicate to UN personnel their desire for a
free Papuan state. The UN
Representative personally received 179 petitions from Papuans, roughly half of
which called for a free West Papuan state and/or outlined concerns about
military repression and the detention of political prisoners.[18] In one notable act of protest, a
2,000-strong group of Papuan demonstrators rallied peacefully outside of Ortiz
Sanz’s residence in Jayapura, calling for a genuine referendum; Indonesian
armed forces arrested and detained at least 43 of the participants.[19] Ortiz Sanz also noted the phenomenon of Papuans voting
with their feet by seeking refuge across the border in Papua New Guinea.[20]
Over a five-month period, Ortiz Sanz repeatedly
attempted to gain proper implementation of respect for the basic rights and
freedoms of Papuans so that the population would be able to freely express its
will in the AFC. Failing to achieve
this objective through his meetings with Indonesian Foreign Minister Adam Malik
and lower-level officials, Ortiz Sanz reported that “in a last attempt to have
article XXII of the Agreement properly implemented, I asked, on 10 June 1969,
for an audience with the President of the Republic of Indonesia, General
Suharto. Owing to his heavy schedule of
work, the President could not receive me before 12 August, ten days after the
completion of the act of free choice,” and more than two months after the UN
Secretary General’s Representative’s request.[21]
Though the UN General Assembly
eventually took note of the results of the Act of Free Choice, it did so
following contentious debate in which delegates argued that Papuans had not
been allowed to exercise their right of self-determination within the meaning
of the 1962 Agreement. Papuan community
leaders have repeatedly rejected the territory’s integration into Indonesia,
and a number of legal scholars have also questioned its validity, citing Papua
as a prominent example of a failed decolonization process because of the lack
of a legitimate exercise of self-determination by its indigenous peoples.[22]
In April 1967, two years before the AFC formally
initiated Indonesian sovereignty over Papua, Freeport signed its first COW with
Indonesia’s newly established New Order government, headed by Army General, and
later President, Suharto.[23]
Freeport management recognized that the mining
operation was a risky venture.
Indonesia was emerging from a violent military takeover in which an
estimated 500,000 people had been killed,[24]
and as a Freeport executive has noted, the “legal basis for a [mining]
agreement was vague,” presumably because of the uncertainty of Papua’s status.[25]
For the Kamoro and Amungme,
Freeport has represented a foothold of Indonesian control over their lands and
over Papua as a whole. Indeed, Suharto
chose the occasion of his 1973 inauguration of Tembagapura, Freeport’s main
mining town complex, to rename the province Irian Jaya or “Victorious Irian.”
According to local Papuans, the Indonesian government has used the name Irian
as a propagandistic acronym standing for “Integrate with the Republic of
Indonesia Against the Netherlands.”[26]
The 41-page COW, drafted by Freeport, was reportedly
the first contract entered into under the New Order’s Foreign Investment
Law. It provided the company with broad
powers over the local population and resources, including the right to take
land and other property and to resettle indigenous inhabitants while providing
“reasonable compensation” only for dwellings and other permanent improvements.[27] The terms of the COW disregarded Kamoro and
Amungme customary land rights and provided inadequate protection for those
communities’ rights to livelihood, to adequate housing, food, and health, and
to practice their culture. As local
community members have repeatedly pointed out, there was no requirement that
the company seek the agreement of or other input from local landowners, or compensate
them for the loss of their food gardens, hunting and fishing grounds, drinking
water, forest products, sacred sites, and other elements of the natural
environment upon which their cultures and livelihoods depend. The indigenous population had no legally
available rights of refusal, of informed consent, or to adequate
compensation. No social or
environmental impact assessment was required or conducted.
The contract gave Freeport the right “to take and
use,” on a tax-free basis, water, timber, soil, and other natural materials in
the project area and from other parts of the territory.[28] In the subsequent 1991 COW, in effect at the
time of writing, the contract also explicitly provides for flexibility on the
part of the Indonesian government in enforcing relevant environmental
protection laws and regulations.[29]
The Indonesian government has vigorously obstructed
international scrutiny of human rights violations in the Freeport area by
blocking access to Papua by UN and other monitors.[30] Freeport management asserts that it
requested the International Committee of the Red Cross (“ICRC”) to conduct an
investigation in 1995,[31]
but there is no independent evidence that such a study ever took place, and the
ICRC’s own rules prohibit the organization from releasing its findings in any
case. Inquiries undertaken by the
Australian and US Embassies in 1995 have also never been made public.[32] Since 1996, the US Embassy has reported
briefly on human rights concerns in the Freeport area in its annual “Country
Reports on Human Rights Practices.”