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Advances in Social Science, Education and Humanities Research, volume 477 Proceedings of the International Conference on Community Development (ICCD 2020) The Implementation of Customary Sanction "Pengocek Torun" in Dayak Simpakng Community to Settlement of Illegal Gold Mining Ketapang Regency Henny Damaryanti* Yenny AS Universitas Panca Bhakti Universitas Panca Bhakti [email protected] Siswadi Universitas Panca Bhakti Abstract. In Indonesia Mining Law, if mining integral entity or as an ecosystem [1]. In general, activities occur without a permit, the act is a the management of natural resources carried out by criminal offense regulated by Law Number 4 in an indigenous community recognizes the existence 2009 concerning Mineral and Coal Mining. of various tenure and use status. The form and However, in empirical practice, there is a status of the mastery of natural resources can be settlement of the case of unlicensed gold mining divided into four groups: (1) public property (open using legal instruments in the form of traditional access), (2) state property, (3) private or private sanctions like in Kualan Hulu Village, Simpakng property, and (4) communal property [2]. Hulu Subdistrict, Ketapang Regency. This study Mining is one of the main sectors in Indonesia is normative because it uses secondary data. after agriculture. However, a number of parties Normative legal research is legal research have been abusing mining in Indonesia, gaining involving the law as a system of building norms. profit and convenience by conducting illegal The Norm system is about the principles, norms, mining. Unlicensed Gold Mining (PETI) is a form rules of legislation, court decisions, agreements, of mining activity that is increasingly prevalent in and doctrines. Secondary data used in this study Indonesia's regions that have the potential of include legislation relating to unlicensed gold mineral resources in the form of gold. In this case, mining, documents, and writings relating to the the activity is oriented to extracting natural wealth cases studied. The result of the study revealed without following proper procedures. that although Indonesia has Law Number 4 in Unlicensed Gold Mining (PETI) is a mining 2009 concerning Mineral and Coal Mining in the business carried out by individuals, groups, or act of unauthorized Gold Mining activities companies without permission from a government (PETI), the application of customary law in institution or not following applicable laws and providing sanctions against PETI perpetrators is regulations. PETI begins with traditional miners' still evident. One of the cases is in Kualan Hulu presence, which is developed due to poverty or Village, Simpakng Hulu Subdistrict, Ketapang limited employment and business opportunities. On Regency, where customary sanction by the local the other hand, weaknesses in law enforcement and community is applied to "torun-tackers" against legislation also contribute to increasing unlicensed PETI perpetrators and considered effective to mining activities like PETI. PETI activities that do create a sense justice. Thus, the values contained not follow the official mining rules have resulted in in customary law can actually be adopted in the environmental damage, waste of mineral resources, formation of mining law to develop a sense of and mining accidents. This results in disaster if it is justice as a legal objective. not appropriately managed [3]. In Indonesia Mining Law, if mining activities Keywords: traditional sanction, unlicensed gold occur without a permit, the act is a criminal offense, mining as stated in Law Number 4 in 2009 concerning Mineral and Coal Mining. However, in practice, the INTRODUCTION settlement of the case of unlicensed gold mining uses legal instruments in the form of the application Natural resources are one of the essential factors of traditional sanctions. It happened in Kualan Hulu that play a role in determining the formation of Village, Simpakng Hulu Subdistrict, Ketapang human encroachment to date. In every culture and Regency, where the settlement of the PETI case, ethnicity, there are various views on the concepts of traditional sanctions were applied and considered mastery and management. The concept of effective by the local community. This customary cosmology and the worldview of natural resources, law is expected to be a win-win solution without especially land, in several ethnic groups in depending on the rigid and procedural law. Indonesia are similar. The land is viewed as an Copyright © 2020 The Authors. Published by Atlantis Press SARL. This is an open access article distributed under the CC BY-NC 4.0 license -http://creativecommons.org/licenses/by-nc/4.0/. 308 Advances in Social Science, Education and Humanities Research, volume 477 The problem in this research is: How is the able to provide maximum benefits for implementation of the sanction of "Pengocek increasing the people's prosperity and welfare. Torun" in the DayakSimpakng community to settle The principle of justice is that in doing mining, the unlicensed gold mining case in Kualan Hulu it must give equal opportunities proportionally Village, Simpakng Hulu District, Ketapang for all citizens without anyone being excluded. Regency? This is a manifestation of Pancasila's values , precisely the 5th precepts, which reads "justice METHOD for all the people of Indonesia." Furthermore, the principle of balance is that in conducting This study is normative because it uses mining activities, one must pay attention to secondary data. The Norm system is about the other fields, especially those directly related to principles, norms, legislation, court decisions, their impact. It means that mining exploration agreements, and doctrines [4]. Secondary data used must pay attention to aspects of environmental in this study include legislation relating to impact analysis (EIA). unlicensed gold mining, documents, and writings 2. Alignments to the interests of the State relating to the cases studied. This principle says that mining activities must Data were analyzed using descriptive qualitative be oriented to the interests of the State. method. The authors present and explain the data Although using foreign capital, foreign workers, obtained from the study of literature, manifested in and external planning when conducting a a logical and systematic description. Once the mining business, the activities and results are required data were collected, the next step was only in the national interest. analyzing to clarify the settlement of the problem. 3. Participatory, Transparency, and Accountability The conclusions were drawn deductively from First, the participatory principle mentions that in general to specific things. At this stage, the legal carrying out mining activities, a community's materials worked on and utilized in such a way to participation is needed to formulate policies, successfully conclude the truth that can be used to management, monitoring, and supervision of address the issues raised in the study. their implementation. Secondly, transparency is openness in conducting mining activities. It is RESULT & DISCUSSION hoped that the wider community can obtain accurate, transparent, and honest information. According to Sukandar Rumidi, a mining The community can provide input to the business is all business carried out by a person, government. Third, the principle of legal entity, or business entity to extract mining accountability is mining activities carried out in materials to further exploit it for human interests. the right ways to be accountable to the state and Meanwhile, mining activities are a series of the community. activities ranging from finding and studying 4. Sustainable and Environmentally Friendly feasibility to the use of minerals for the benefit of The principle of sustainable and companies, surrounding communities, and the environmentally friendly is to integrate government (regional and central) [5]. The mining economic, environmental, and socio-cultural industry itself is an upstream industry that produces dimensions in the overall mineral and coal mineral resources and is a source of raw materials mining business to realize present and future for downstream industries needed by people prosperity. throughout the world. One of the mining products The driving factors for the presence of PETI having a high economic value, as stated above, is can be grouped into: gold, causing a lot of gold mining phenomenon 1. Social factors, where PETI activities are without permission. considered a hereditary work carried out by the Illegal gold mining is a gold exploration activity local community. There is an unharmonious carried out by a person or group of people without relationship between official mining and the permission from the authorities [6]. Furthermore, local community, and there is a Joseph F. Castrilli states that the mining laws are: misinterpretation of reform, which is interpreted "The basis for implementing environmental as freedom without limits; protection concerning mining activities, 2. Legal factors, namely the community's including exploration, construction, ignorance of the laws and regulations in force in reclamation, and rehabilitation activities."[7]. the mining sector, which among others are According to Supramono, mining law has four reflected in the lack of siding with the interests types of legal principles that become the mining of the wider community and the absence of a business's primary objectives, namely [8]: warning against official