Azizah Amalia Yayasan Auriga Recent issues In its attempt of filing legal suit against corporations allegedly involved with forest fires Indonesian governmentthrough its Environment and Forestry Ministry KLHKhas lost its cases as well as its civil claims amounting to more than ID: 605671
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Slide1
The Portrait of Legal Liability of Forest and Land Fires in Indonesia
Azizah Amalia Yayasan AurigaSlide2
Recent issues
In its attempt of filing legal suit against corporations allegedly involved with forest fires, Indonesian government–through its Environment and Forestry Ministry (KLHK)—has lost its cases as well as its civil claims amounting to more than Rp8,3 trillion
(KLHK, quoted by Kontan Online).
The suit against
PT Surya Panen Subur (PT SPS)
worth
Rp439
billion has lost in appeal. Another loss happened last year, with Palembang South Court entirely rejected KLHK’s Rp7,9 trillion against
PT Bumi Mekar Hijau (PT BMH);
On 11 August 2016, South Jakarta State Court granted KLHK’s lawsuit against PT National Sago Prima partially. One day after the ruling, Palembang Supreme Court accepted KLHK’s appeal against
PT BMH
whilst annulling all verdicts previously decided by Palembang State Court
;
In January, Riau Provincial Police (
Polda
Riau) issued a warrant to terminate the investigation (SP3) towards 15 corporations allegedly involved with forest and land fires in the province.Slide3
Lesson learned from PT NSP case)
In a file registered as 591/Pdt.G-LH/2015/PN.Jkt.Sel, the judge ruled to part of Indonesian government. The verdict should serve as considerations and
legal reference (jurisprudence) for other cases concerning corporation liability in forest and land fires.
South Jakarta State Court’s verdict has set
strict-liability
as basis for consideration in making corporations held accountable for forest fires in its concession area
;
Creating precedent in calculation method of ecological loss from forest fire
;
The government need to undertake monitoring towards the verdict implementation, especially on environmental rehabilitation that PT NSP must fulfill, which equals to
Rp. 753.745.500.000
.Slide4
Lesson learned from PT BMH case
Indonesian Corruption Watch (ICW) and Anti-Forest Mafia Coalition has once done an examination towards Palembang State Court in PT BMH case
(Nomor: 24/Pdt.G/2015/PN.Plg.).
The government should consistently propel
strict liability
to be a precedent in holding permit holders accountable in relation to forest and land fires.
The government should strengthen the data and information on natural resources’ quality and balance
(SDA-LH),
and also its quality standards, as to be used as evidence in court.
Indonesian judiciary needs to improve its system, ensures it only provides environmentally-sound judges in environmental cases.
Following South Jakarta Court ruling, on 12 August 2016 Palembang Supreme Court decided to accept the appeal made by KLHK.Slide5
Other cases #1
Earlier this year, Riau provincial police issued SP3 containing the halt of investigation towards 15 corporations allegedly entailed in forest and land fires in the province. The SP3 issuance is viewed as obscure for it just came up the surface on July;
The corporations, among others, are namely PT Bina Duta Laksana, PT Perawang Sukses Perkasa Industri, PT Sumatera Riang Lestari, PT Alam Sari Lestari, PT Rimba Lazuardi, PT PAN United, PT Riau Jaya Utama, PT Suntara Gaja Pati, PT Siak Raya Timber, PT Hutani Sola Lestari, PT Parawira Group, KUD Bina Jaya Langgam, PT Bukit Raya Pelalawan, PT Dexter Rimba Perkasa, PT Ruas Utama Jaya;
Defending its action, police said those corporations were found innocent and instead pointed out that it was local community that caused the fires. Such paradigm is a setback and a challenge in enforcing environmental justice in Indonesia.Slide6
#2
Another reason is those corporations have been given administrative sanctions by environment and forestry ministry. Yet, it is important to highlight the fact that nowadays there’s no such categorization among lawsuit, civil suit, and administrative suit, in regard to environmental law enforcement. Three process must be carried out simultaneously in accordance with multi-door approach concept in order to achieve an effective and optimal environmental legal enforcement
;Police also stated that 15 corporations were well-equipped with fire-fighting facilities and have done implemented both prevention and fire termination. However, police has no capacity in deciding such points. The issues were supposed to be proved in court. Slide7
#3
Based on data by
NASA Fire Information for Resource Management (FIRMS) Active Fire Data 13 January 2015-30 Dec
ember 2015
with 90-100% accuracy, compared with administration and concession areal; we have discovered there plenty of hotspot located within the concession of
utilization of timber
products and natural forest
(IUPHHK-HTI)
in
Indonesia.
With such data, the permit holders were supposed to predict fire potentials. For instance, PT BMH itself had 1058 hotspot within the same period.
During the period of
2015,
at least
9,442
hotspot were found in 204 concessions of HTI’s permit holders. The number was quite massive, not to mention other areal included within forest concession license (
HPH
)
,
plantation, and others. Slide8
Important notion #1
The concept of strict liability needs to be arranged and applied consistently in handling environmental crime in Indonesia. The concept, although indirect, could help the government to do verification/argumentation without having to prove the element of fault. Instead, there will only be two points needed—loss and causality—to hold permit holders accountable in forest and land fires
;Compensation and environmental rehabilitation would not entirely restore the ecological damage already occurred. Therefore, the KLHK needs to take political actions and bring the legal, civil, and administrative processes altogether (according to multi-door approach) as a strategy in handling environmental cases. Slide9
Important notion #2
The government needs to consider necessary and firm actions towards permit holders whose concessions have been repetitively burned-out;
The government also needs to regulate ‘blacklist instrument’ to prevent owners both recorded as shareholders and beneficiary owner (whose corporations once involved with environmental cases) from having another similar business
;
Current ecological damage has yet calculate its impacts for wider public. Therefore, in the future liability must also cover social
cost of crime.
If necessary, ubiquitous principles should be applied, similar to trans-boundary pollution act in Singapore.Slide10
Important notion #3
The government must arrange a mechanism of recovery compensation use in affected areas. In permit issuance, the environment and forestry ministry should look carefully at environmental damage potentials and ensure that the licensee will oblige its duty in managing its concession with
precautionary principle;As for prevention efforts, in the future the government must ensure to protect prone-to-fire land (such as
peatland
) from any permits. The
KLHK
and
Peatland
Restoration Body (BRG) need to ascertain peat dome entirely included into protected area
. Slide11
T
hank
You
Azizah Amalia
azamalia@auriga.or.id