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The Study on Newmont Divestation 2008-2016) The Conflict of Private-National Interests in the Divestation of PT. Newmont Nusa Tenggara’s Shares (The Study on Newmont Divestation 2008-2016) Ferdi Hasiman, Julian Aldrian Pasha, Post-graduate Student of The University of Indonesia Abstract The 1945 Constitution mandates that strategic mining must be controlled by the state. Not by foreign corporations. Based on that mandate, Indonesian government is struggling for the shares divestment of Newmont Nusa Tenggara (NNT), an American based mining company. NNT operates the Batu Hijau and the Elang Dodo Rinti mine. NNT’s Contract of Work mandates NNT to divest shares of 51 percent. NNT disobeyed the divestment order. In the divestment process, there is a conflict of private-national interests. The divestment process becomes an event to seize the oligarchy. In some term, a new oligarchy regulates Newmont. Keywords: Newmont Nusa Tenggara, Constitution’s mandate, strategic mining, Contract of Work, divestment order, Law No.4 / 2009, Agus Martowardoyo, Bakrie Group, PT. Multi Daerah Bersaing, Oligarchy, Winters, state-owned company, foreign company, Medco, civil society, Arifin Panigoro. Halaman 55 INTRODUCTION However, until the appointed time, In this paper I only want to elaborate Newmont never divested 51 percent of the the divestment of PT Newmont Nusa shares to the state. Tenggara’s shares. The purpose of the On March 3, 2008, the Indonesian divestment is to restore the mandate of The government sued Newmont for 1945 Constitution of Republic of Indonesia. international arbitration in Geneva. The Constitution mandates that strategic mining International Arbitration Decision on must be controlled by the state for the March 31, 2009 finally won the Indonesian welfare of the people. Foreign corporations Government and ordered Newmont to may not be controlling shareholders of divest 51 percent of the shares to the mining companies. national party, the Central government or Newmont is a company from the the regional government.1 United States and operates copper mines in Batu Hijau and Elang Dodo Rinti, West Sumbawa, West Nusa Tenggara. Newmont METHODOLOGY controls the concession area of 97,200 The author combined three different hectares including Elang Dodo Rinti. This kinds of methods. First, the author made a company is the second largest copper and qualitative research. Second, the author gold mining company after Freeport interviewed some experts who have Indonesia. In 2014, gold production sufficient knowledge to elaborate this topic. reached 690,000 ounces. The Batu Hijau Third, the author conducted the research mine produced 542 pounds of copper and based on some literature. Some literature 737,000 ounces of gold in 2011. The Batu reviews are needed as a foundation and as Hijau mine has reached the peak of support for this paper. production in 2014, while Elang Dodo Rinti is estimated to have reserves of 25 million ounces of gold and 15 billion pounds of RESULTS OF RESEARCH AND copper. Based on this fact, the Batu Hijau DISCUSSION and Elang Dodo Rinti mines are potential The Conflict of Private-National mines in the future. (Annual Report Interests in Newmont’s Divestment Newmont Mining Corporation, 2014: 54) Process Newmont Nusa Tenggara is a 1. Newmont Divestment Becomes an Contract of Work signed by the government Event to Scramble Oligarchy in 1986. In Newmont CoW, which was Newmont Nusa Tenggara (NNT) is signed in 1986, there is a clause regarding a mining company from the United States the divestment order. Article 24 (b) in the that produces copper and gold in Batu CoW mandates Newmont to divest shares Hijau, West Sumbawa, West Nusa of 51 percent as of 5 years after the mining Tenggara (NTB). As much as 80 percent of operation period. Divestment is carried out NNT's shares are controlled by Newmont in stages for 5 years, from 2006-2010. Mining Corporation and 20 percent are 1 Arbitral Tribunal Session was held in Jakarta on 8 (UNCITRAL). On March 31th,2009 The Arbitral - 13 of December 2008. It was held in accordance Tribunal published the final decision. The with the arbitral procedure of United Nation government of Indonesia won the court arbitral Commission on International Trade Law session. Halaman 56 controlled by a local businessman, PT Newmont have disputed over the Pukuafu Indah. The composition of divestment of shares since 2008. Newmont's shares before the divestment is As the operationalization of Law presented in the chart below: No.4 / 2009, concerning minerals and coal (Minerba: mineral dan batu bara), the government has issued PP No. 24/2012, concerning the Implementation of Mineral and Coal Mining Business Activities. This PP mandates mining controlled by foreign corporations to divest 51 percent of shares gradually after five years of production to the central government, regional government, state-owned enterprises, regionally owned enterprises, or local In accordance with article 24 (b) in corporations through tenders. the Contract of Work, NNT must divest 51 However, in the 24 percent percent of its foreign shares to the national divestment of Newmont's shares, the party. Newmont then had to divest 31 central government received nothing. At percent of the shares to the national party, that time, The Minister of Finance led by because 20 percent of Newmont's shares Sri Mulyani, ordered that 24 percent of had been secured by a domestic Newmont's shares be purchased by the businessman, Jusuf Meruk, through PT central government. However, Sri Pukuafu Indah. Mulyani's efforts were strongly protested The process of divesting 31 percent by the House of representatives (DPR). For of the shares made in two stages. The first example, Sri Mulyani said that the central stage of shares divestment was 24 percent government was willing to buy Newmont with the deadline for the 2009 divestment shares through state-owned companies process. While the remaining 7 percent was (BUMN), such as PT Aneka Tambang and released no later than 2011, after Law No.4 PT Timah Tbk. Even so, the finances of the / 2009 took effect. two state-owned companies were Divesting 51 percent of Newmont's insufficient to buy 24 percent of Newmont's shares is slightly different from divesting shares worth 850 million dollars or Rp. other mining companies, such as Freeport 7,650 trillion. Indonesia and Vale Indonesia. It is different One way to cover that, Sri Mulyani because the shares divestment process has said, is by making a capital injection into a been going on since 2009. That is, the state-owned company. However, the House divestment coincides with the birth of Law of Representatives did not allow capital No.4 / 2009. This law orders the process of injection to state-owned companies at the renegotiating a one-year contract after the 2009 Budget Board meeting. The House of contract expires. Nevertheless, the Representativesactually supported if 24 Newmont divestment process is still in line percent of Newmont's shares were handed with the spirit of Law No.4 / 2009. The over to the NTB Provincial Government, divestment process was accelerated West Sumbawa Regional Government and because the Indonesian governments and Sumbawa Regional Government. However, Halaman 57 Sri Mulyani maintained that 24 percent of shares which are the allotment of the Newmont's shares must be submitted to the Regional Government consortium. And the central government. On the contrary, Sri remainder will be borne by Multi Capital. Mulyani did not want Newmont shares to DMB is then willing to share the dividend be bought by a subsidiary of Bakrie Group, yield on Newmont shares with a portion of Multi Capital. However, after Sri Mulyani 75% for Multi Capital and the remaining was replaced, the government then allowed 25% for DMB the regional government to buy 24 percent The completion of the 24 percent of Newmont's shares. divestment of Newmont's first phase shares The NTB Governor, Zainul Majdi has implications for the reduction of (carried by the Golkar-Hanura-Garinda Newmont Nusa Tenggara's shares in the coalition) for example, said that the NTB Batu Hijau and Elang Dodo Rinti mines. government was obliged to get a portion of Newmont Mining Corporation's shares then Newmont's shares, because the Newmont left 56 percent and if the 7 percent shares in operating area was in its territory. Majdi the second phase were completed, then the then coordinated with the Sumbawa Barat remaining Newmont Mining Corporation and Sumbawa district governments to buy shares became 49 percent. That means, Newmont shares. The NTB regional Newmont Mining Corporation is not a government then formed a joint venture controlling shareholder in NNT. company, PT Multi Daerah Maju Bersaing Nonetheless, NNT continues to try (MDB) to take over 24 percent of to become the controller of the Batu Hijau Newmont's shares. MDB is a joint venture mine. The indication was that on June 25, between the NTB provincial government, 2010, PT Indonesia Masbaga Investama, West Sumbawa district and Sumba district. owned by Suria Atmadja (Emtek Group), In March, 2009, MDB formed a bought 2.2 percent of PT Newmont Nusa consortium company with PT Multi Capital Tenggara's shares from PT Pukuafu Indah owned by the Bakrie Group on the grounds for US $ 71.3 million or around Rp. 641 that the regions did not have enough billion. funding to buy Newmont shares. During the This share purchase transaction is divestment process of 24 percent of allegedly full of irregularities. Newmont Newmont's shares, Aburizal Bakrie, the Nusa Tenggara's parent company, the shareholder of the Bakrie Group, served as Newmont Southeast Partnership, was the Minister of Welfare and an important accused of being behind this transaction. In person in Golkar. the 2011 consolidated financial statements, On July 23, 2009, MDB and Newmont claimed to enter into an Multicapital signed a Memorandum of agreement with PT Pukuafu Indah and PT Understanding (MoU) to buy 24 percent of Indonesia Masbaga.
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