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A. G. Wibisana and S. N. Setyorini
It could further be argued that strict liability is applicable if the clearing of the
land or peatland falls into an unnatural use of land, or if the activity is exposing the
area into threats of forest fires so significant that an exercise of utmost care cannot
eliminate the threats (US Restatement (Second) of Torts § 520). The case for this type
of argument is stronger when the activities of land or peatland clearing for timber
and palm oil plantations cover a very large area. Eventually, it is the court who will
judge whether the activities have the potential to give rise to serious threats to the
environment.
Another way to argue that strict liability is applicable to wildfires is by referring to
regulations related to wildfires. This type of argument indicates that it is the decisionmakers, that is, the regulators or lawmakers, who decide whether strict liability is
applicable for forest fires. Surprisingly, there are few provisions indicating that the
license holders in forest-related activities are strictly liable for forest fires. For this
purpose, one might refer to Article 49 of the 1999 Forestry Law, stating that the
license holders are responsible for forest fires occurring within an area under their
control. A similar provision can also be found in Article 21 par. 1 of the GR Number
4 of 2001, which determines that the license holders are not only responsible for the
fires in an area under their control, but also are also under an obligation to control
the fires and conduct remediation programs for environmental impacts of the fires.
Another important policy related to peatland protection is Presidential Instructions
on the moratorium of permits for activities within primary forest and peatlands. To
indicate that Indonesia is serious enough in carrying out REDD activities, especially
those related to the implementation of the LoI with the Norwegian Government, the
President has recently issued a Presidential Instruction Number 10 of 2011 on The
Moratorium of the Issuance of Licenses Within Primary Forest and Peatlands. This
instruction states that all ministries and regional governments should take necessary
measures to support the moratorium of the issuance of timber license on the “primary”
forest and peatlands. In this case, the President instructs to postpone the granting of
new licenses for primary natural forests and peatlands in conservation forests, protection forests, production forests (limited production forests, regular/fixed production
forests, convertible production forests), and other areas of use as indicated in the Peta
Indikatif Penundaan Izin Baru (PIPIB, the map indicating areas where the moratorium for the issuance of new licenses is applicable). The instruction states that the
moratorium program will be implemented for two years, except for the implementation of nationally vital development, including the development of geothermal, oil
and gas, electricity, and land for paddy, rice, and sugarcane. The moratorium has
been then extended three times, each for two years, respectively through Presidential Instruction Number 6 of 2013, Presidential Instruction Number 8 of 2015, and
Presidential Instruction Number 6 of 2017.
These instructions have triggered mixed opinions. On the one hand, some
commentators argue that the moratorium is less optimal since it renders no additionality to the existing level of forest and peatland protection. In this regard, it has
been argued that the moratorium is directed on the primary forest and peatlands,
which most of them are already protected under Indonesian laws (Simamora 2011,
A. G. Wibisana and S. N. Setyorini
It could further be argued that strict liability is applicable if the clearing of the
land or peatland falls into an unnatural use of land, or if the activity is exposing the
area into threats of forest fires so significant that an exercise of utmost care cannot
eliminate the threats (US Restatement (Second) of Torts § 520). The case for this type
of argument is stronger when the activities of land or peatland clearing for timber
and palm oil plantations cover a very large area. Eventually, it is the court who will
judge whether the activities have the potential to give rise to serious threats to the
environment.
Another way to argue that strict liability is applicable to wildfires is by referring to
regulations related to wildfires. This type of argument indicates that it is the decisionmakers, that is, the regulators or lawmakers, who decide whether strict liability is
applicable for forest fires. Surprisingly, there are few provisions indicating that the
license holders in forest-related activities are strictly liable for forest fires. For this
purpose, one might refer to Article 49 of the 1999 Forestry Law, stating that the
license holders are responsible for forest fires occurring within an area under their
control. A similar provision can also be found in Article 21 par. 1 of the GR Number
4 of 2001, which determines that the license holders are not only responsible for the
fires in an area under their control, but also are also under an obligation to control
the fires and conduct remediation programs for environmental impacts of the fires.
Another important policy related to peatland protection is Presidential Instructions
on the moratorium of permits for activities within primary forest and peatlands. To
indicate that Indonesia is serious enough in carrying out REDD activities, especially
those related to the implementation of the LoI with the Norwegian Government, the
President has recently issued a Presidential Instruction Number 10 of 2011 on The
Moratorium of the Issuance of Licenses Within Primary Forest and Peatlands. This
instruction states that all ministries and regional governments should take necessary
measures to support the moratorium of the issuance of timber license on the “primary”
forest and peatlands. In this case, the President instructs to postpone the granting of
new licenses for primary natural forests and peatlands in conservation forests, protection forests, production forests (limited production forests, regular/fixed production
forests, convertible production forests), and other areas of use as indicated in the Peta
Indikatif Penundaan Izin Baru (PIPIB, the map indicating areas where the moratorium for the issuance of new licenses is applicable). The instruction states that the
moratorium program will be implemented for two years, except for the implementation of nationally vital development, including the development of geothermal, oil
and gas, electricity, and land for paddy, rice, and sugarcane. The moratorium has
been then extended three times, each for two years, respectively through Presidential Instruction Number 6 of 2013, Presidential Instruction Number 8 of 2015, and
Presidential Instruction Number 6 of 2017.
These instructions have triggered mixed opinions. On the one hand, some
commentators argue that the moratorium is less optimal since it renders no additionality to the existing level of forest and peatland protection. In this regard, it has
been argued that the moratorium is directed on the primary forest and peatlands,
which most of them are already protected under Indonesian laws (Simamora 2011,