New Geothermal Law Finally Issued
By: Hadiputranto, Hadinoto & Partners (www.hhp.co.id)
Tuesday, October 14 2014 - 01:40 AM WIB
We describe below some key changes introduced in this New Geothermal Law.
Geothermal activities are no longer classified as "Mining Activities"
The classification of geothermal activities as part of mining activities under the Old Geothermal Law severely limited geothermal development activities in high conservation value forest areas. Under the Forestry Law, no mining activities (whether exploration or exploitation) may be conducted within conservation forests (e.g. National Parks and Nature Reserves (Cagar Alam)). Mining activities are only allowed within production forests, and in a more limited way within protected forests (through underground mining). As geothermal activities were classified as mining activities, geothermal activities could not be conducted within conservation forest areas.
The classification of geothermal activities as non-mining activities under the New Geothermal Law gives legal clarity and certainty on the conduct of geothermal activities within conservation forest areas. However, the New Geothermal Law clarifies that:
(i) direct geothermal utilization activities (i.e. utilizing the geothermal energy in a manner that does not involve power generation) within conservation forest can only be conducted for nature tourism activities, and
(ii) indirect geothermal utilization activities (which include use of geothermal resources to generate electricity) in forest areas can only be conducted after obtaining a permit from the Minister of Forestry in the form of: (1) a Borrow and Use Permit (pinjam pakai) for geothermal activities within production forest areas or protected forest areas; or (2) a license to utilize conservation forest areas (in the form of an environment utilization service license) if the activities are within conservation forest areas.
The relevant forestry regulations that still classify geothermal as mining activities may need to be further amended before the provisions of the New Geothermal Law related to the conduct of geothermal activities within forest areas can be effectively implemented.
Different Types of License for Direct Geothermal Utilization
The Old Geothermal Law divided geothermal resources utilization into: (i) direct utilization, which is geothermal resources utilization for purposes other than for producing electricity, such as tourism, agribusiness, industry; and (ii) indirect geothermal utilization which is geothermal resources utilization for the purposes of producing electricity.
However, under the Old Geothermal Law only one type of license was recognized for both utilization types, i.e., the Geothermal Mining Business License (Izin Usaha Pertambangan Panas Bumi?IUP).
The New Geothermal Law introduces one license for each of those utilization types: (i) Geothermal License (Izin Panas Bumi) for indirect geothermal utilization; and (ii) Direct Utilization License (Izin Pemanfaatan Langsung) for direct geothermal utilization.
Recentralization of authority over geothermal power generation
Under the Old Geothermal Law, the Geothermal Mining Business License/IUP was issued by the MEMR, governor or regent/mayor, depending on the location of the geothermal working area (e.g. a license for an area whose boundaries existed within one Regional Government area would be issued by the regent/mayor). Under the New Geothermal Law, governors and regents/mayors will only issue Direct Utilization Licenses (Izin Pemanfaatan Langsung). Issuance of Geothermal Licenses (Izin Panas Bumi), which is a license required for geothermal utilization for producing electricity, is solely within the authority of the central government.
Transitional provisions of this New Geothermal Law also provide that supervision authority of IUPs which was within the authority of the local government is transferred to the central government upon conversion of the IUPs to be Geothermal Licenses (discussed further below).
In line with this change, the New Geothermal Law also suggests that working area tenders are to be performed by the MEMR, instead of by the governors and regents/mayors as was the case under the Old Geothermal Law.
| Authorized Government Institution | Issuance of Direct Utilization Licenses for Direct Geothermal Utilization | Issuance of Geothermal Licenses (Izin Panas Bumi) for Indirect Geothermal Utilization |
| Central Government/MEMR | For (1) areas that are within more than one province, including production forest areas and protected forest areas; (2) conservation forest areas; (3) conservation areas on water; and (4) the sea area of more than 12 miles from the coast line. | For the whole Indonesian territory, including production forest area, protected forest area, conservation forest area, and the sea. |
| Governor | For (1) areas in more than one regency/city within a province, including production forest areas, protected forest areas; and (2) the sea area up to 12 miles from the coast line. | - |
| Regent/Mayor | For (1) areas within a regency/city, including production forest areas, protected forest areas; and (2) the sea area up to 1/3 of the Provincial Government's authority area. | - |
Other New Provisions
(a) Restriction on the Transfer of Geothermal License and Shares
The Old Geothermal Law provides that a Geothermal Mining Business License (IUP) can be transferred to an affiliated company, being a company that holds at least 25% of the shares with voting rights in the holder of the IUP, with the approval of the issuer of the IUP. The New Geothermal Law provides that a Geothermal License cannot be transferred to another party. This provision seems to suggest that, regardless of whether prior MEMR approval is obtained, any transfer of a Geothermal License is strictly prohibited.
Further, the New Geothermal Law provides that a Geothermal License holder may, with approval from the MEMR, transfer its shares on the Indonesia Stock Exchange after conducting exploration. The Old Geothermal Law did not contain any provisions governing the shareholding in IUP holders. The introduction of new provision raises a number of queries as to what is intended: are all other transfers of shares (i.e. transfers other than through the Indonesian Stock Exchange after exploration) freely permitted without MEMR approval? Or are all such transfers prohibited outright? Based on our discussions with EBTKE, EBTKE is taking the view that these new provisions are intended to, and have the effect of: (i) restricting any share transfer prior to exploration (regardless of whether the transfer is conducted through or outside the Indonesia Stock Exchange); and (ii) limiting the mechanism for any share transfers after the exploration, meaning that share transfers after the exploration can only be allowed through the Stock Exchange after obtaining MEMR approval (private share transfers are prohibited). It is expected that as the more detailed Government Regulations and Ministerial Regulations are issued following the passing of this new law, details around how and when shares in Geothermal License holders may be transferred will become more clear.
The New Geothermal Law does apply these restrictions only to new Geothermal Licenses, and not IUPs (i.e. the license issued under the Old Geothermal Law). However as the New Geothermal Law does require all existing IUPs to be converted into the new Geothermal Licenses, we are of the view that these shareholding restrictions will ultimately become applicable to the projects which are currently being developed under IUPs. It is not clear when the conversion must be completed but for this conversion, the New Geothermal Law requires the IUP issuers (i.e., governors/mayors/regents) to deliver IUP relevant documents to the MEMR within six months after the New Geothermal Law is in force. This means there is a limited window for existing IUP holders to put in places corporate structures now which negate the impact of these shareholding restrictions (e.g. through the use of intermediate holding companies).
(b) Geothermal License Period
Under the Old Geothermal Law, there was (i) a maximum of three years exploration period which could be extended twice for one year each time; (ii) a maximum of two years for feasibility studies; and (iii) a maximum of 30 years for exploitation which could be extended. The Old Geothermal Law does not provide a specific time limit on how long the exploitation period can be extended for.
The New Geothermal Law provides that the maximum term of a Geothermal License is 37 years, and extension can be granted for a maximum of 20 years for each extension. The maximum exploration period (which includes the period for a feasibility study) is five years, which can be extended twice for one year each time. (c) Detailed Provisions on Mandatory bonus for local government The Old Geothermal Law provided that IUP holders must pay state income tax and non-tax state income, the latter of which includes bonuses. However, the Old Geothermal Law did not provide any further details regarding this obligation - i.e. who was the recipient of the bonus, how the bonus was to be calculated etc. The New Geothermal Law provides further details on bonuses. It provides that Geothermal License holders must provide a production bonus to the local government in the area where the geothermal working area is located. This bonus is provided based on a percentage of the Geothermal License holders' gross income from when the first unit operates commercially. The exact details regarding the bonus will be further regulated in a Government Regulation. Related to this requirement, transitional provisions of the New Geothermal Law provide that holders of existing geothermal operation authorizations, geothermal joint operation agreements, geothermal operation permits, and IUPs must pay a production bonus to the local government as explained above: (i) from 1 January 2015 if production has commenced, or (ii) as soon as production commences if production has not yet commenced on that date.
(d) Transitional Provisions
? Endorsing the requirement under the previous geothermal regulations, the New Geothermal Law provides that all existing geothermal operation authorizations, geothermal joint operation agreements, and geothermal operation permits will remain in force provided exploitation commences at the latest on 31 December 2014. This requirement previously was included in the implementing Government Regulation issued under the Old Geothermal Law; as it is now stipulated at the level of law (as opposed to a Government Regulation), it will be more difficult for any extension of this deadline to be granted. It is not entirely clear whether this deadline will also be imposed on IUPs issued under the Old Geothermal Law (the vast majority of which will not commence exploitation by 31 December 2014). Whilst IUPs (i.e. izin usaha panas bumi or geothermal business licenses) are not expressly mentioned in this transitional provision, the general references to "all existing geothermal operation permits" may be broad enough to capture IUPs. Despite the lack of clarity in the wording of the transitional provisions, in view of the Ministry of Energy and Mineral Resources having recently issued its Regulation No. 17 of 2014 to facilitate the commencement of exploration activities on a number of the stalled IUP-based projects, we believe it is very unlikely that the Government will implement this provision in a way which would result in those IUP-based projects being cancelled come 31 December 2014. In our discussion with EBTKE officials, the officials also shared the same view that the 31 December 2014 deadline will not be applicable for IUP-based projects.
? Provided exploitation has commenced by 31 December 2014, existing geothermal operation authorizations (which should mean geothermal authorizations currently held by PT Pertamina Geothermal Energy) remain in force until 30 years after the enactment of the New Geothermal Law, whereas existing geothermal joint operation agreements (JOCs) and geothermal operation permits remain in force until the expiration of their term periods. After the term expires, geothermal operation authorizations, geothermal joint operation agreements, and geothermal operation permits may be extended as Geothermal Licenses.
? The existing IUPs remain in force until the expiration of their term periods and the New Geothermal Law mandates that all existing IUPs to be converted to Geothermal Licenses and for this purpose governors and regents/mayors are obliged to submit issued IUPs documents to the MEMR within six months after the enactment of the New Geothermal Law.
? Companies that conduct direct geothermal utilization activities before the enactment of the New Geothermal Law are deemed to have obtained licenses, but within three years after the enactment of the New Geothermal Law, those companies must obtain a Direct Utilization License or convert the existing license into a Direct Utilization License.
? Existing geothermal operation authorizations, geothermal joint operation agreements, geothermal operation permits, and IUPs are allowed to conduct activities in conservation forest after obtaining an environment utilization service license.
Closing
The New Geothermal Law will create fundamental changes to the process and procedures related to geothermal development in Indonesia because (i) the majority of the licensing and tender process which was within the authority of governors and regents/mayors under the Old Geothermal Law is now within the authority of the central government under the New Geothermal Law; and (ii) geothermal activities are now classified as non-mining activities.
As the New Geothermal Law introduces many new key concepts, pending issuance or amendment of implementing regulations that provide further guidelines on implementing the changes introduced by this New Geothermal Law, it remains to be seen how the New Geothermal Law will be implemented. We envisage it is crucial for the implementing regulations to be amended to at least provide guidelines on: (i) the process and procedures for tender of working areas by the central government; (ii) the process and procedures for issuance of forestry licenses due to exclusion of "geothermal activities" from mining activities; and (iii) the process and procedures for issuance of Geothermal Licenses by the central government and Direct Utilization Licenses by the central and local governments.
For further information please contact
Luke Devine Foreign
Legal Consultant
+62 21 2960 8600
luke.devine@bakernet.com
Kirana D. Sastrawijaya
Senior Associate
+62 21 2960 8541
kirana.d.sastrawijaya@bakernet.com
Fanny Kurniawan
Senior Associate
+62 21 2960 8527
fanny.kurniawan@bakernet.com
Mesianti Tobing
Associate
+62 21 2960 8551
mesianti.tobing@bakernet.com
Jeremia Purba
Senior Associate
+62 21 2960 8592
jeremia.purba@bakernet.com
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