15 Peatland Protection in Indonesia: Toward the Right Direction?
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regard, the Law introduces damage due to forest fires on the one hand and peatland
damage on the other, as two types of standards to determine ecosystem damage (the
2009 Environmental Law, art. 21 part. 3 letter c and f).
Introducing peatland damage in the 2009 Environmental Law is justifiable since
peatland could be found not only inside but also outside the forest areas. Hence,
once the criteria to define peatland damage have been exceeded, it will be considered
that environmental damage has taken place. This damage will stimulate necessary
measures for peatland protection and recovery. More importantly, provisions on
peatland stipulated in the 2009 Environmental Law prove to play a very important
role in providing the legal basis for further regulation on peatland protection.
Furthermore, wildfires are also addressed in the 2009 Environmental Law. In
addition to provisions related to criteria of environmental damage, the 2009 Environmental Law also sets forth prohibitions to cause pollution/environmental damage
(the 2009 Environmental Law, art. 69 par. 1 letter a). Read in conjunction with
the standard of environmental damage, the provision might mean a prohibition of
conducting any action that might lead to wildfires. To further strengthen this point,
the 2009 Environmental Law also prohibits land clearing by burning the forested
land (the 2009 Environmental Law, art. 69 par. 1 letter h). If a person conducted an
activity that causes forest/land fires and these fires lead to pollution/environmental
damage, then this person has committed a delik materil (material delict), namely an
activity that is considered a crime because of its consequences. This delik materil is
punishable with the imprisonment of 3–15 years and the fines of IDR 3–15 billion
(the 2009 Environmental Law, arts. 98 and 99). In addition, the 2009 Environmental
Law also provides another provision which regards the burning of forested land a
delik formil, that is, a criminal act regardless of the effect of the act, which is punishable with imprisonment of 3–10 years and the fines of IDR 3–10 billion (the 2009
Environmental Law, art. 108).
With respect to civil liability, it could be argued that some plantation activities,
especially the drainage of tropical peatlands, might be considered as activities that
could be held liable according to strict liability. Since it is likely that the utilization
of forested land or peatlands for timber and plantations does not use hazardous
substances, nor produce hazardous wastes, one might wonder how strict liability
could be applicable for losses from wildfires allegedly resulted from the utilization.
To answer this question, one needs to look at whether the operation of timber and
palm oil plantations, particularly related to land or peatland clearing, is indeed posing
serious threats to the environment. One could first refer to the definition of “serious
threats” set forth in the 2009 Environmental Law. The law defines “serious threats” as
threats that have the potentials to give rise to a wide range of environmental impacts
and public anxiety (the 2009 Environmental Law, art. 1 point 34). Furthermore, the
term “serious threats” is also explained in the Chief Justice Decree Number 36 of 2013
as pollution or environmental damage likely to be irreversible or with widespread
consequences to human health, water surface, underground water, soil, air, plants,
or animals (The Decree of Indonesia’s Chief Justice Number 036/KMA/SK/II/2013,
p. 39).
309
regard, the Law introduces damage due to forest fires on the one hand and peatland
damage on the other, as two types of standards to determine ecosystem damage (the
2009 Environmental Law, art. 21 part. 3 letter c and f).
Introducing peatland damage in the 2009 Environmental Law is justifiable since
peatland could be found not only inside but also outside the forest areas. Hence,
once the criteria to define peatland damage have been exceeded, it will be considered
that environmental damage has taken place. This damage will stimulate necessary
measures for peatland protection and recovery. More importantly, provisions on
peatland stipulated in the 2009 Environmental Law prove to play a very important
role in providing the legal basis for further regulation on peatland protection.
Furthermore, wildfires are also addressed in the 2009 Environmental Law. In
addition to provisions related to criteria of environmental damage, the 2009 Environmental Law also sets forth prohibitions to cause pollution/environmental damage
(the 2009 Environmental Law, art. 69 par. 1 letter a). Read in conjunction with
the standard of environmental damage, the provision might mean a prohibition of
conducting any action that might lead to wildfires. To further strengthen this point,
the 2009 Environmental Law also prohibits land clearing by burning the forested
land (the 2009 Environmental Law, art. 69 par. 1 letter h). If a person conducted an
activity that causes forest/land fires and these fires lead to pollution/environmental
damage, then this person has committed a delik materil (material delict), namely an
activity that is considered a crime because of its consequences. This delik materil is
punishable with the imprisonment of 3–15 years and the fines of IDR 3–15 billion
(the 2009 Environmental Law, arts. 98 and 99). In addition, the 2009 Environmental
Law also provides another provision which regards the burning of forested land a
delik formil, that is, a criminal act regardless of the effect of the act, which is punishable with imprisonment of 3–10 years and the fines of IDR 3–10 billion (the 2009
Environmental Law, art. 108).
With respect to civil liability, it could be argued that some plantation activities,
especially the drainage of tropical peatlands, might be considered as activities that
could be held liable according to strict liability. Since it is likely that the utilization
of forested land or peatlands for timber and plantations does not use hazardous
substances, nor produce hazardous wastes, one might wonder how strict liability
could be applicable for losses from wildfires allegedly resulted from the utilization.
To answer this question, one needs to look at whether the operation of timber and
palm oil plantations, particularly related to land or peatland clearing, is indeed posing
serious threats to the environment. One could first refer to the definition of “serious
threats” set forth in the 2009 Environmental Law. The law defines “serious threats” as
threats that have the potentials to give rise to a wide range of environmental impacts
and public anxiety (the 2009 Environmental Law, art. 1 point 34). Furthermore, the
term “serious threats” is also explained in the Chief Justice Decree Number 36 of 2013
as pollution or environmental damage likely to be irreversible or with widespread
consequences to human health, water surface, underground water, soil, air, plants,
or animals (The Decree of Indonesia’s Chief Justice Number 036/KMA/SK/II/2013,
p. 39).