Draft regulations initiated by another agency
Draft Regulation on Fishery Business
The Kutai Draft Regulation on Fishery Business was initiated by a newly established agency called Bureau of Natural Resources. The Bureau had effectively started running in 2009.
According to a Decree of the Kutai District Head, one of the duties of the Bureau was to formulate policies concerning natural resources. The officials of the new bureau seemed to regard drafting regulations as one of their favourite activities in their first year in office. The bureau aimed to make three Kutai Draft Regulations, one of which was the Kutai Regulation on Fishery Business.10 To start the lawmaking process, a Legal Drafting Team was established by the Kutai District Head. There were eleven officials on the team, one from the Fisheries Agency, one from the Legal Bureau, and the remaining nine from the Bureau of Natural Resources itself.However, the formal intention of the Bureau of Natural Resources to engage with other related agencies in the drafting process was hindered by the behaviour of the bureau officials in establishing and running the team. The Bureau never informed the Fisheries Agency and Legal Bureau that their staff had been included in the drafting team. In addition, the Bureau did not involve the other two agencies in the drafting process from an early stage, but only after it had already prepared a rough version of the Draft Regulation on Fisheries Business. The officials of the Fisheries Agency were surprised to find out that they had not been involved in the first round of drafting.
The making of Draft Regulation on Fisheries Business had diverse objectives. The Draft claimed that the prevailing Kutai Regulation 36/2000 on Fishery Business was ineffective as large-scale natural resource extraction formed a new threat to fishery resource use. It added that Regulation 36/2000 was considered out of date and in need of adjustment since the new Fishery Law 31/2004 and Government Regulation 54/2002 had been enacted.
However, the Kutai Draft Regulation on Fishery Business contained very general goals. Apart from the two above objectives, the making of the Kutai Draft Regulation was also said to be undertaken to generate the use of renewable resources and local revenue as well as to create a conducive environment for investment.However, the Kutai Fisheries Agency officials suspected that the abovementioned reasons were fake. As a new agency, the Bureau of Natural Resources needed to create programs and activities in order to secure their budget. The bureau officials’ motive to get funds rather than being genuinely interested in the new regulation can be inferred from the fact that they set up a three-year program to make the Kutai Draft Regulation on Fishery Business, which according to the Fisheries Agency officials, is longer than necessary. The three-year program was intended to enable the officials of the Bureau of Natural Resources to conduct more travelling. A larger budget for travelling recently emerged as a source of additional income.
As said, only after they prepared a rough draft, the Bureau of Natural Resources invited the two other agencies to a first meeting where all eleven members of the team were present. In that meeting, the team members from the Fisheries Agency informed the Team members that the Fisheries Agency was preparing two draft regulations concerning fisheries. However, even though the team members were informed about the previous initiatives of the Fisheries Agency, there was no willingness to figure out the similarities and differences between the rough drafts prepared by the Bureau of Natural Resources and the two draft regulations previously prepared by the Fisheries Agency. Being told that the Kutai Fisheries Agency was preparing two draft regulations concerning fisheries, the Head of the Bureau of Natural Resources simply commented:
Any agency can take an initiative to draft a regulation as long as it is for the sake of the people.
One of the heads of the sub-division of the Bureau of Natural Resources reiterated the above pragmatic notion during the regional law-making process. He said:
It would not be a problem if our bureau is preparing regional draft regulations even though other agencies or offices have prepared or are preparing similar drafts.
We have two options if such a situation emerges. Firstly, we will ask other agencies or offices to incorporate the contents of their regional draft regulations in ours, or secondly, we just discontinue preparing our drafts and let other agencies or offices continue theirs.Although they suspected a personal interest of the Bureau of Natural Resources, the Fisheries Agency officials expected that the Bureau of Natural Resources would likely be more successful in pursuing the draft regulation. This was mainly because the Bureau had a closer formal line with the Kutai Secretariat Office as well as the Kutai District Head. Moreover, the Bureau had informal political access to some members of the Kutai House of Representatives since the Head of the Bureau was close to several MPs.
Following an administrative tradition in regional law-making, the Bureau of Natural Resources consulted with the Provincial government and two national ministries, the Ministry of Home Affairs and the Ministry of Marines and Fisheries Affairs. Once again, they did not engage the two other district agencies in the consultation despite having promised to do so.
The Bureau of Natural Resources did fulfil its promise to involve the Fishery Agency when they organised two comparative study trips to Riau Province in 2011. During the first trip, the Bureau of Natural Resources of Kutai District and the Legal Bureau of the Provincial government met with the officials of the Riau Provincial government. During the second trip, some members of the Kutai House of Representatives joined. The second trip was initially set up to meet the government of Riau Island Province. Yet, due to miscommunication, they changed the trip to Pekanbaru city of Riau Province.
The expectation of the Kutai Fishery Agency that the Bureau of Natural Resources would be more successful in pushing through draft regulations turned out to be correct. Unlike the failure of the Kutai Fishery Agency to propose the Kutai Draft Regulation on Fishery Levy since 2006, the Bureau of Natural Resources managed to have the Kutai Draft Regulation on Fishery Business enacted as Kutai Regulation 15/2011 on Fishery Business.
Not only did the Bureau of Natural Resources succeed in getting the regulation passed, but the regulation also contains provisions concerning a fishing levy. As previously stated, in 2006, the Kutai Fishery Agency ceased to make the Kutai Draft Regulation on Fishery Levy when they were told that Kutai District is required to have the so-called fish market and fish port to be able to collect a fishery levy. At the time of the enactment of Kutai Regulation 15/2011, the two required public facilities had not been constructed yet.
Thus, by having provisions on a fishery levy, Kutai Regulation 15/2011 broadened and superseded Kutai Regulation 26/2000. Nevertheless, the rest of the content of Kutai Regulation 15/2011 closely resembles Regulation 26/2000. In that respect, its primary legal objective, namely to supersede the old regulation, is achieved. Meanwhile, its other original objective, namely to couple increasing threats from other large-scale natural resource uses to fishery resource use, was addressed in a new separate Kutai Draft Regulation on Fishery Resources Conservation. As had happened when the Kutai Draft Regulation on Fisheries Business was made, the Bureau of Natural Resources formed a Legal Drafting Team in which an official from the Kutai Fisheries Agency and Legal Bureau were included. For this law-making initiative, the Bureau of Natural Resources held two consultations with the Ministry of Marine Affairs, and with the Faculty of Fishery and Marine Science of Mulawarman University, and met with related Kutai agencies and local offices of the Kutai Fishery Agency.