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.

Introduction..... 4

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

Freeport’s Role....... 13

Support to the Indonesian Military. 13

Cultural/Environmental Impact and Development Aggression 16

Freeport’s Responses 19

Community Actions Seeking Redress....... 22

Recommendations................. 23

Further Investigation Needed............ 23

Recommendations to Freeport 24

Recommendations to the Government of Indonesia............ 25

Bibliography..... 26

Appendix A.............. 36

Terms of Reference............ 36

Team Members............ 40

Team Member Biographies.......... 41

Appendix B.............. 43

Introduction

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.

Project Background

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.

Information Collected

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.

Historical and Political Context

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 20^th 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.

Papua’s Integration into the Republic of Indonesia

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]

Freeport’s Contract of Work with the Indonesian Government

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]

Human Rights Violations

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.”