TABLE OF CONTENTS EXECUTIVE SUMMARY………………………………………………………………………
……… (i) – (xxi)
PART A – BACKGROUND CHAPTER 1 - INTRODUCTION .......................................................................................................1 The nature of environmental law ...................................................................................................1 The location of environmental laws and regulations in Indonesia ..................................................2 The aim of the study .....................................................................................................................2 Policy background ........................................................................................................................2 Methodology .................................................................................................................................7 The continuing work of analysing and developing environmental law in Indonesia .......................10 Structure of the report .................................................................................................................11 CHAPTER 2 – POLICY, PRINCIPLES AND LAW .................................................................. 13 Three concepts ...........................................................................................................................13 Law and the role of rules .............................................................................................................15 Legal rules ..................................................................................................................................16 Types of rules .............................................................................................................................17 Has a rule been created? ............................................................................................................17 Making laws about policy ............................................................................................................18 Conclusions and recommendations ............................................................................................19 CHAPTER 3 - LEVELS OF ENVIRONMENTAL LAW MAKING ....................................................21 The extent of central government authority for the environment ..................................................21 Central government law or guidelines? .......................................................................................23 Regional government – new environmental responsibilities ........................................................27 Management plans .....................................................................................................................29 Conclusions and recommendations ............................................................................................30 CHAPTER 4 - ENVIRONMENTAL AUTHORITY AND INSTITUTION BUILDING ..........................33 Environmental leadership within central government ..................................................................33 Building environmental authority within central government .......................................................42 Responsibility for environmental management within regional government ................................44 Provincial BAPEDALDAS ...........................................................................................................48 District BAPEDALDAS ................................................................................................................50 Relations between the provincial and district BAPEDALDA ........................................................51 Licensing, monitoring and enforcement – who is responsible at the regional level? ......................52 Towards an institutional model for BAPEDALDAS ......................................................................55 Conclusions and recommendations ............................................................................................58
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PART B - ENVIRONMENTAL PROTECTION LAW CHAPTER 5 – THE NATIONAL FRAMEWORK ......................................................................................... 60 Constitutional protection for the environment .......................................................................................... 60 Act No. 23 of 1997 regarding Environmental Management ..................................................................... 62 Scope of the act ........................................................................................................................... 62 Basis, objectives, and targets .................................................................................................................. 63 Definitions ............................................................................................................................................... 63 Expression of rights ..................................................................................................................... 67 General obligations and duties ................................................................................................................ 69 Authorities and responsibilities ................................................................................................................ 70 Specific prohibitions, obligations, and permissions regarding citizens..................................................... 72 Specific obligations imposed upon government ...................................................................................... 73 Conclusions and recommendations ........................................................................................................ 74 CHAPTER 6 - ENVIRONMENTAL IMPACT ASSESSMENT, ENVIRONMENTAL MANAGEMENT PLANS AND ENVIRONMENTAL MONITORING PLANS .......................................................................... 83 Approval of new developments where “a large or important environmental impact” is likely ................... 83 Institutional aspects of AMDAL ............................................................................................................... 91 Post-decision monitoring ......................................................................................................................... 92 Approval of new developments where “a large or important environmental impact” is not likely.............. 93 Old enterprises ........................................................................................................................................ 94 Conclusions and recommendations ........................................................................................................ 95 CHAPTER 7 – FRESH WATER QUALITY.................................................................................................. 97 General ....................................................................................................................................... 97 Valuing water resources .......................................................................................................................... 99 Ambient water quality standards – criteria, objectives and indicators .................................................... 103 The establishment of a water quality management strategy .................................................................. 105 Water quality control measures ............................................................................................................. 108 Groundwater quality .............................................................................................................................. 115 Institutional responsibility ...................................................................................................................... 117 Market based instruments ..................................................................................................................... 118 Conclusions and recommendations ...................................................................................................... 118 CHAPTER 8 - MARINE POLLUTION ....................................................................................................... 123 Pollution from land-based sources ........................................................................................................ 123 Pollution from ships.................................................................................................................... 126 The dumping of waste at sea ...................................................................................................... 128 Conclusions and recommendations ...................................................................................................... 128 CHAPTER 9 - THE ATMOSPHERE .......................................................................................................... 130 General – air pollution ................................................................................................................ 130 The control of air pollution from stationary sources ............................................................................... 133 The control of air pollution from mobile sources .................................................................................... 135 Levels of government authority ............................................................................................................. 135 Enforcement.......................................................................................................................................... 136 2
Air pollution from fires ...............................................................................................................137 Conclusions and recommendations – air pollution ....................................................................137 The control of ozone depleting substances ...............................................................................142 Climate change and the control of greenhouse gases ...............................................................143 CHAPTER 10 - WASTE MANAGEMENT ........................................................................................145 The management of hazardous and toxic waste .......................................................................146 The movement of hazardous waste ..........................................................................................149 Contaminated soil .....................................................................................................................149 Institutional authority .................................................................................................................150 Conclusions and recommendations – the management of toxic waste ......................................150 The management of non-toxic waste ........................................................................................152 Conclusions and recommendations - the management of non-toxic waste................................153 CHAPTER 11 - MANAGEMENT OF INDUSTRIAL AND AGRICULTURAL CHEMICALS ............155 Industrial chemicals ..................................................................................................................155 Agricultural chemicals - pesticides ............................................................................................156 Conclusions and recommendations ..........................................................................................158 PART C - SPATIAL PLANNING CHAPTER 12 - SPATIAL PLANNING CONTROLS ....................................................................162 Spatial planning - general .........................................................................................................162 Public participation in spatial planning ......................................................................................166 Protected areas ........................................................................................................................168 Regional spatial planning law ...................................................................................................171 Conclusions and recommendations ..........................................................................................172 CHAPTER 13 - COORDINATION OF LICENCES, APPROVALS AND MONITORING 179 Preliminary approval ............................................................................................................................. 174 Spatial planning approval ...................................................................................................................... 176 Sectoral licences ......................................................................................................................179 Environmental licences .............................................................................................................183 Coordination mechanisms for licences and other approvals .....................................................185 Coordination of monitoring ........................................................................................................186 Conclusions and recommendations ..........................................................................................188 PART D - NATURAL RESOURCES MANAGEMENT CHAPTER 14 – LAND MANAGEMENT ....................................................................... 193 Land use planning ....................................................................................................................193 Land use management .............................................................................................................194 Mining .......................................................................................................................................195 Illegal mining .............................................................................................................................197 Conclusions and recommendations ..........................................................................................197
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CHAPTER 15 – SOIL MANAGEMENT ......................................................................... 199 Agrarian affairs .........................................................................................................................199 Production of biomass ..............................................................................................................200 Conclusions and recommendations ..........................................................................................202 CHAPTER 16 – WATER RESOURCES MANAGEMENT ....................................................204 Water resources planning .........................................................................................................204 Conservation of water ...............................................................................................................206 Allocation of water ....................................................................................................................206 Regulation of water use ............................................................................................................209 Groundwater resources management ......................................................................................210 Conclusions and recommendations ..........................................................................................211 CHAPTER 17 - THE MANAGEMENT OF ECOSYSTEMS ...........................................................213 FORESTS.................................................................................................................................213 Forestry ....................................................................................................................................215 Regional autonomy and levels of government responsibility for forestry activities ......................225 Conclusions and recommendations – forestry and regional autonomy ......................................229 Conclusions and recommendations - operational aspects of forestry ........................................230 Other issues concerning forests ...............................................................................................234 WETLANDS..............................................................................................................................239 Wetlands specific law ...............................................................................................................243 Conclusions and recommendations – wetlands ........................................................................244 THE COAST .............................................................................................................................246 Mangrove forests ......................................................................................................................248 Coral reefs ................................................................................................................................249 The beach preservation program ..............................................................................................251 Conclusions and recommendations – the coast........................................................................252 THE SEA ..................................................................................................................................253 Conclusions and recommendations – the sea ..........................................................................256 CHAPTER 18 – BIODIVERSITY OF FLORA AND FAUNA WITHIN PROTECTED AREAS ...........257 International obligations ............................................................................................................258 Biodiversity conservation ..........................................................................................................259 Nature sanctuaries and nature conservation zones ..................................................................263 Conclusions and recommendations ..........................................................................................265 CHAPTER 19 - BIODIVERSITY OF FLORA AND FAUNA OUTSIDE PROTECTED AREAS ........268 Terrestrial biodiversity ..............................................................................................................268 Aquatic biodiversity ...................................................................................................................270 The role of local communities ...................................................................................................272 Conclusions and recommendations ..........................................................................................273
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CHAPTER 20 – THE PROTECTION OF ENDANGERED SPECIES ..................................... 274 Protected species .....................................................................................................................274 Trade in endangered species ...................................................................................................276 Spatial planning ........................................................................................................................276 Conclusions and recommendations ..........................................................................................278
PART E - ENFORCEMENT CHAPTER 2 - ADMINISTRATIVE ENFORCEMENT ...................................................................281 General patterns .......................................................................................................................281 The range of administrative sanctions ......................................................................................283 Administrative sanctions at the regional level ...........................................................................289 Conclusions and recommendations ..........................................................................................290 CHAPTER 22 - CRIMINAL ENFORCEMENT ..............................................................................293 The place of criminal enforcement in environmental law in Indonesia .......................................293 The framework - Act No. 23 of 1997 regarding Environmental Management..............................294 Conduct of a prosecution ..........................................................................................................300 Conclusions and recommendations ..........................................................................................301 CHAPTER 23 - CIVIL ENFORCEMENT.......................................................................................303 Civil enforcement by government .............................................................................................303 Community actions against violators - liability to pay compensation and/or carry out certain actions ......................................................................................................................................306 Private actions to protect the environment ................................................................................311 Conclusions and recommendations ..........................................................................................313 BIBLIOGRAPHY
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CHAPTER 1 - INTRODUCTION THE NATURE OF ENVIRONMENTAL LAW By its nature environmental law is not a clearly defined area of law in the sense, for example, of banking law, contractual law or family law. Moreover, in most countries environmental law is developing rapidly, often in an uncoordinated fashion. The content of environmental law is the product of a search for satisfactory forms of administration and control over actions and decisions which impact upon the environment. A helpful description of modern environmental legislation is this: Environmental legislation and regulation concerns the setting up of administrative structures to protect the public interest in a safe and healthy environment; to preserve habitats and species; to grant departmental officers powers in respect of licensing of activities; to ensure the preparation of plans and the implementation of protective measures and other environmental management functions; and to set up appeals and review processes.1
Any rule governing conduct that is likely to affect the environment falls within the definition of environmental law. This may be a rule concerning the conduct of private individuals, corporations or government officials. In relation to government officials, environmental law is essentially a specialised form of administrative law, the challenge it faces is how to compel decision-makers to consider the environmental consequences of their decisions and to carry out balanced and wise decision-making based on a proper understanding and application of appropriate environmental, social and economic values?2 A key feature of environmental law is its procedural nature. Environmental law is primarily concerned with allocation of decision-making powers and the setting up of procedures for the use of those powers. The sorts of decisions can be categorised as: planning; the grant of permission; or the imposition of sanctions Planning Ideally, planning should represent the starting point for all environment management. Planning is the key to integrating the activities of all those who use natural resources or otherwise impact on the environment. In Indonesia, government responsibility for planning is found in environmental management, spatial planning and natural resources management. Permissions Much environmental law is about setting out the procedures according to which permissions - such as consents, approvals and licenses - are to be obtained. The law sets out the steps that must be taken by the applicant, the powers granted to the decision-maker and the process that is to be followed. Sanctions Sanctions involve the imposition of requirements upon individuals and corporations for breach of the law. The role of environmental law is to indicate the type of requirements that may be imposed and the 1 Based
on a description by Bates G, of modern environmental law: Bates GM Environmental Law in Australia Butterworths Sydney (3rd Ed) 1992 at p.1. 2 ibid at p.16.
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procedures to be followed in imposing the requirements. Sanctions may be imposed administratively or through the courts. THE LOCATION OF ENVIRONMENTAL LAWS AND REGULATIONS IN INDONESIA This report will discuss the environmental law system found in legislation and guidelines made by the Government of Indonesia. This law is created by the State Ministry for the Environment, sectoral ministries and regional government. Environmental law in Indonesia is found in the following legal instruments: 1. The Constitution of Indonesia (Undang-undang Dasar 1945 (as amended)). 2. Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) (UU 23/97) and government regulations (Peraturan Pemerintah (PP)) passed by the Minister for the Environment to implement the provisions of UU 23/97. The regulations concern the protection of specific environmental media (e.g. air and water) or specific problems (e.g. the assessment of the environmental impact of activities and the management of hazardous and toxic waste). 3. National planning law both in the form of statutes (Undang-undang (UU)) and government regulations (Peraturan Pemerintah (PP)) 4. National sectoral law both in the form of statutes (Undang-undang (UU)) and government regulations (Peraturan Pemerintah (PP)) 5. Presidential decrees (Keputusan Presiden) (Keppres) 6. Provincial government regulations (Peraturan Daerah) (Perda) 7. District government regulations (Peraturan Daerah) (Perda) As will be discussed further in Chapter Three, in addition to instruments that constitute binding law (UU, PP, Keppres, Perda), there are many guidelines, procedures, directives and the like, which influence environmental practices in a non-binding way. THE AIM OF THE STUDY The aim of the study is to identify deficiencies in environmental law in Indonesia that arise from gaps in the coverage of the environmental law system. The terms of reference for the study included: (a) a critical overview of environmental legislation in Indonesia; (b) identification of priority areas for reform; and (c) recommendations as to mechanisms for legislative change including the appropriate level of government. POLICY BACKGROUND
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The aim of the study is consistent with the National Development Program Year 2000-2004 (UU No.25 Tahun 2000 tentang Program Pembangungan Nasional (PROPENAS) Tahun 2000-2004 Bab X), which emphasises the following environmental strategies: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii)
Promotion of community control of the environment and natural resources Institutional strengthening Expansion of the system of oversight and control of the exploitation of natural resources and the environment especially sea resources through monitoring, control and surveillance Recognition of traditional and local organisations in the ownership and management of natural resources Strengthening the capacity of regional government Expansion of the system of incentives and disincentives Implementation of the system of environmental management (ISO 14000 and eco labeling) Support for popular culture as a vehicle to promote environmental awareness.
Previous studies and calls for reform Obstacles to effective environmental management in Indonesia have been identified by the Asian Development Bank as:3 (i) (ii)
(iii)
Policy failure: the failure to effectively price natural resources, inappropriate taxes on natural resources use, and open access to forestry and fishery resources. Inadequate institutional capacity: a lack of coordination among government agencies involved in the implementation of policy, a weak organisational setting at the regional level, inadequate policy and information analysis, and a lack of capacity for environmental monitoring and enforcement. Lack of good governance: a lack of transparency and public participation in the process of developing and implementing environmental laws, unclear definition of government responsibilities, and the absence of incentive structures for enforcement.
The report aims to build on such findings by looking specifically at the content of environmental legislation. The report also aims to complement the work that has already been carried out by government and nongovernment organizations in addressing the need for environmental law reform. One such report was a study in 2000 by the Ministry of the Environment of existing legislation and regulations entitled Evaluation of the Application of Environmental Law (Evaluasi Penerapan Hukum, Deputi Bidang Hukum Lingkungan, Tahun 2000). This study included in its review a consideration of the following national laws: Environmental Management Act 1997 (Undang-undang 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) Water Act 1974 Undang-undang No. 11 Tahun 1974 tentang Pengairan Spatial Planning Act 1992 Undang-undang No. 24 Tahun 1992 tentang Tata Ruang 3 Asian
Development Bank, Country Operational Strategy: Indonesia March 2001 p.85.
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Roads Act 1960 Undang-undang No. 13 Tahun 1960 tentang Jalan Communications Act 1974 Undang-undang No. 11 Tahun 1974 tentang Perhubungan Forestry Act 1999 Undang-undang No.41 Tahun 1999 tentang Kehutanan Industry Act 1984 Undang-undang No. 5 Tahun 1984 tentang Perindustrian dan Perdagangan Exclusive Economic Zone Act 1983 Undang-undang No.5 Tahun 1983 tentang Zona Ekonomi Eksklusif Indonesia Fishing Act 1985 Undang-undang No.9 Tahun 1985 tentang Perikanan Health Act 1992 Undang-undang No.23 Tahun 1992 tentang Kesehatan Mining Act 1967 Undang-undang No. 11 Tahun 1967 tentang Pertambangan The study reached the following conclusions:4 1. Control instruments for the protection of the environment are not used in an optimal way either under sectoral law or the Environmental Management Act 1997. 2. Sectoral law is not used for administrative enforcement or compliance. 3. Sectoral law regarding water, sea, industry, and agriculture does not provide administrative enforcement. 4. Whilst there is some sectoral law that provides for administrative enforcement, the administrative sanctions are not clear (e.g. laws relating to health, forestry, mining and fisheries). 5. Act No. 23 of 1997 regarding Environmental Management (UU 23/97) and Act No. 24 of 1992 regarding Spatial Planning (UU 24/92) do not contain the full range of measures to protect the environment either administratively or through the court system. 6. As the environment crosses over geographical boundaries, sectors and generations, it provides particular difficulties in relation to regional autonomy.
4 As
translated from the report using the same paragraph numbering.
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7. Weaknesses in administrative mechanisms include licensing, oversight, and the imposition of administrative sanctions. 8. It can be seen from sectoral law that licensing is not used to protect the environment but to serve the interests of the particular sector. It is only in the Environmental Management Act that provision is made for environmental protection and in this regard, the Minister for the Environment has been given responsibility. However, in practice operational responsibility for the environment is sectoral. Administrative sanctions have not been used by the sectors to protect the environment. 9. In relation to oversight, there is often confusion between oversight as a part of general administration and the investigation that precedes the commencement of court proceedings. There needs to be a clearer distinction between the two forms of oversight. 10. There is no single authority that is authorised to issues licences, carry out oversight and impose sanctions and this is the most serious failure in the system for protection of the environment. 11. Other weaknesses in relation to administrative sanctions arise from the fact that the sanctions are not set out well in UU 23/97 or within sectoral law. 12. Whilst criminal enforcement is predominant in the drafting of sectoral law, it is not able to become the primary mechanism of enforcement of environmental law. It should be available for use as the ultimate remedy in the last resort. Recommendations were made as follows: (1)
Within the regional autonomy law, authority for issuing licences, oversight, and sanctions needs to be explained.
(2)
The evaluation of specific sectoral laws contained in the report is anticipated to generate feedback from the sectors so that they can be more involved in environmental protection through the administration of sanctions and the harmonization of sectoral regulations.
(3)
Feedback to push for the revision of the UU 23/97 in respect of the provision of rights, responsibilities, and the handing down of sanctions should be addressed by the House of Representatives because of their function as a legislative body.
(4)
As oversight cuts across sectors, it needs to be provided for in a government regulation. This is necessary to avoid differences in approach by different sectors and the absence of oversight.
(5)
The form of the regulation that provides for oversight should be based on the fact that oversight cuts across sectoral lines and geographic and generational limits. Accordingly, taking into account TAPMPR/III/2000, it should be a government regulation.
(6)
Coordination of oversight needs to be intensive throughout the relevant sector. Coordination would be improved through a plan of action or an oversight action program.
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(7)
UU 23/97 needs revision in respect of administrative sanctions, and the court process for civil and criminal enforcement.
(8)
One particular aspect of UU 23/97 that needs revision is the section on licensing in articles 18-21. The authority to issue a licence for the disposal of waste to the environment needs to be clarified, especially the role of the Minister for the Environment.
(9)
Another aspect of UU 23/97, which needs revision, is that relating to oversight in articles 22-24. This needs to be set out in a more detailed form, particularly in relation to the roles of the central and regional government, taking into account regional autonomy. Appointment of overseers (pengawas) by the Minister for the Environment should be considered, to allow for authorized official overseers appointed by sectoral Ministers.
(10)
Administrative sanctions set out in UU 23/97 (arts 25-27) need to be revised, including the type of sanctions and the mechanism for imposing sanctions.
(11)
The criminal sanctions provided in UU 23/97 are difficult to apply. The obligations and prohibitions in articles 5-21 are not referred to in the criminal sanction provisions in articles 41-44.
(12)
Closely connected with criminal sections in UU 23/97 are the provisions in articles 5, 6 and 14–21 which need greater detail.
(13)
The provisions relating to civil claims for compensation in UU 23/97 are not clear and do not make a distinction between environmental damage and personal damage. This confusion can be seen in article 25 on administrative sanctions and in articles 31 – 39 on the resolution of disputes inside and outside the court. These provisions are likely to cause difficulties for ordinary people and to hinder their participation in environmental protection.
(14)
Clarification is needed in relation to the provision in UU 23/97 regarding the use of environmental audits as an administrative sanction. There is no clear distinction between voluntary and compulsory audits.
(15)
The government regulations dealing with the management of hazardous and toxic waste need to be harmonised with UU 23/97.
(16)
The ratification of international conventions, such as the conventions relating to biodiversity, hazardous and toxic waste, and sea pollution, needs to be followed up by incorporation into domestic law.
(17)
Revision of UU 23/97 should be carried out as soon as possible and should be preceded by internal discussion within the Ministry and interdepartmental discussion.
The proposed Natural Resources Management Act A study in 1999 by the Indonesian Center for Environmental Law entitled Investigation of the Law and Policy of Managing Conservation Zones in Indonesia 1999 (Kajian Hukum dan Kebijakan Pengelolaan Kawasan Konservasi di Indonesia 1999) recommended the following:
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(a) (b) (c) (d) (e)
the promotion of community based natural resources management; the placement of principal management authority at the provincial level; the institutionalization of environmentally sustainable development; the harmonisation and integration of subsidiary policies and regulations; and the promotion of vertical and horizontal coordination between government agencies.
In addition, a technical team appointed by the Ministry for the Environment has recently recommended the drafting of a Natural Resources Management Act. Such an Act is said to be needed in order to move away from state-based resources management towards more integrated resources management, which acknowledges indigenous property rights, public participation, transparency, democratic decision-making and public accountability. This has now been put in motion by a recent decision of the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) (MPR). METHODOLOGY The study takes of the form of a gap analysis. Its aim is to identify deficiencies in environmental law in Indonesia, which arise from “gaps” in the environmental law system. The first step is to determine what is a “gap” and how a “gap” is to be identified. According to the Oxford English Dictionary, a gap is: 1. 2.
a break or a hole in an object or between two objects a space, interval, or a break.
According to the Macquarie Dictionary, a gap includes a contradiction, disparity, or imbalance. Thus, a gap in the system of environmental law in Indonesia is a break, a hole, an unfilled space, or an interval in that system which may arise from an absence of law, or a contradiction, disparity or imbalance in the legal system. However, one can find gaps only if one can first discern what the “whole” system should be. This task is made difficult, not least because the Indonesian environmental law system, like that of most countries, is constantly evolving and developing and so is by its nature incomplete. Three approaches have been taken to deal with these difficulties. (a) The first approach looks at the environment itself with reference to the existing legal system. The following categories presented themselves: (i) management of environmental quality (air, water, soil, land); (ii) control of substances which pose a threat to human health and the environment (hazardous and toxic waste, non-hazardous waste, industrial and agricultural chemicals); and (iii) management of natural resources: inanimate resources (land, soil, water) and animate resources (ecosystems in forests, wetlands, the coastline and the sea; biodiversity in protected areas and outside protected areas; and endangered species). These categories correlate with the existing laws and regulations in Indonesia. Following this approach, a gap exists when the legal system neglects an area of need, when it deals with only part of a problem, or when it fails to deal together with a number of problems that should be dealt with together. (b) The second approach to identifying legal gaps assumes that:
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(i) there are a range of legal policy tools that have been recognised both inside and outside Indonesia as being appropriate for environmental management; (ii) reference can be made to these legal policy tools to identify gaps in a legal system; and (iii) a gap exists when environmental laws and regulations do not fully utilise suitable legal policy tools by crystallising them into legal form. The legal policy tools referred to in the report are the following: 1. Obligations upon citizens (kewajiban) 2. Prohibitions upon citizens (larangan) 3. Allocation of government authority (kewenangan) 4. Assignment of government responsibility (pertanggung jawaban) 5. Obligations upon government (kewajiban) 6. Inventory making (inventarisasi) 7. Classification systems (klasifikasi) 8. Planning (perencanaan) 9. Management systems (sistem pengelolaan) 10. Environmental impact assessment (Analysis Mengenai Dampak Lingkungan) 11. Command and control mechanisms (mengatur secara paksa) Standards – waste discharge standards, ambient standards (menetapkan standar – baku mutu limbah cair, baku mutu ambien) Licensing, permits and other approvals (perizinan dan izin yang lain) Compulsory audits (audit yang wajib dilakukan) Monitoring by government (pemantauan oleh pemerintah) 12. Voluntary mechanisms (mengatur secara sukarela) Self-monitoring (pemantauan secara mandiri) Voluntary audit (audit secara sukarela) 13. Enforcement by government (penegakan hukum oleh pemerintah ) – administrative (administrasi), civil (perdata) and criminal (pidana) 14. Community enforcement (penegakan hukum oleh masyarakat) 15. Dispute resolution outside the court system (penyelesaian sengketa di luar pengadilan) 16. Imposition of obligations for restoration and rehabilitation (kewajiban untuk memulihkan kembali dan rehabilitasi) 17. Re-evaluation (evaluasi peninjauan ulang) 18. Access to environmental information (keterbukaan informasi) 19. Rights for public participation (hak berperan serta) 20. Adoption of market-based instruments ( perangkat berbasis mekanisme pasar), for example: Taxes (pajak) Fees (retribusi) Subsidies (subsidi) Tradable Permits (izin yang dapat diperjual belikan) Deposit refunds (pembayaran kembali deposito)
(c) The third approach is based on the premise the idea that environmental law making is essentially about drafting rules and, in particular, procedural rules. It identifies “gaps” which arise from deficiencies in legal drafting. These deficiencies include: poor drafting of definitions or a lack of definitions; excessive reliance on statements of principle; lack of detail or specificity in assigning rights and obligations;
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vagueness in the drafting of prohibitions; use of words that require interpretation; lack of detail in procedures; and unnecessarily complex phrasing.
Thus as a result of poor drafting a legal policy tool may be present in an act or regulation but still be ineffective. Examples of the sort of questions that have been asked in analysing legislation are as follows: To what extent does a particular act or regulation provide definitions that are easily understood and consistent with definitions in other legislation? How clearly are rights defined? What more is needed to implement them? Are specific government agencies made responsible for carrying out particular tasks? What is the level of obligation? What level of discretion has been given in decision-making? How much guidance is given by the law, on both the procedure and the substance of decision-making? Can parties affected by a decision participate in the making of a decision? How detailed is the procedure for making inventories? Is the procedure at the level of an act, a regulation or a guideline? What provisions are there for public participation? How detailed is the procedure for environmental planning? Is the procedure at the level of an act, a regulation or a guideline? What provisions are there for public participation? Are government agencies and citizens bound by environmental plans? How is environmental impact assessment linked to other forms of approval? What considerations must a government official take into account when deciding whether or not to grant a licence? Is there scope for public participation in the licensing process? Is the grant of the licence dependent on the prior approval of an environmental impact assessment? Is it possible to appeal against the decision to grant or not grant a licence? What obligations are imposed upon government to carry out monitoring? Is the government agency specified? What scope is there for the public also to carry out monitoring? What obligations are imposed upon government to publish the results of monitoring? What provision is made for administrative enforcement? How clear are the enforcement provisions? Is there a hierarchy of enforcement tools? Is it clearly stated who is to impose administrative sanctions? For criminal enforcement, how clearly are the offences defined? Are they in a form that is easily understood? Are there any barriers to criminal enforcement arising from the legal drafting? To what extent is there provision for strict liability? Is there a hierarchy of criminal offences? Who is responsible for criminal enforcement?
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For civil enforcement, is there provision for civil enforcement by government? What role is available for the public for civil enforcement through the court system? What role is available for the public for participation in negotiated or mediated dispute resolution? How is restoration of the environment or rehabilitation of environmental damage to be secured? Who has responsibility and for what? What loss is to be restored? Does it include damage to the environment as well as to human health? What provisions are made for monitoring and re-evaluation of an environmental management program? How is community awareness to be raised? By whom and how? What is the level of obligation and legal accountability? What are the specific provisions for providing access to information? How are they built into the system of management? Are they enforceable? What provision is made for the use market-based instruments to provide incentives for good environmental practices? THE CONTINUING WORK OF ANALYSING AND DEVELOPING ENVIRONMENTAL LAW IN INDONESIA This report in its draft form is the “first cut” of a critique of the full range of environmental law in Indonesia. There are a number of aspects of environmental law that have not been covered in the report, particularly those aspects of a more voluntary nature such as environmental management systems and alternative dispute resolution. As far as possible, where topic has not been fully treated, that fact has been stated. Useful areas for further research are also identified. A major omission from the report is a detailed analysis of regulations passed at the regional level by provincial and district governments. The report concentrates on national law, although it does refer to some regional regulations from Yogyakarta and East Java. Environmental law from a regional perspective and the way it interacts with national law is a subject that needs attention on a region-by-region basis. In any gap analysis there is a possibility that gaps will be wrongly identified. For example, it may be asserted that there is an absence of laws or regulations dealing with a specific aspect of environmental management, when in fact laws and regulations do exist, in the form of a sectoral law, a regional regulation or a guideline, which has not been identified in the preparation of the report. It may also be asserted that regulations do not exist for a particular aspect when in fact, in a certain province or district, the problem has been adequately addressed. The risk of finding a gaps where no gaps really exist is considerable in Indonesia where measures may be buried deep in the hierarchy of layers of sectoral regulations and guidelines, in an appendix to a ministerial decree, in a decision of a head of a department, or in a departmental circular or in a decree of a governor. Just physically locating laws, regulations and guidelines is a difficult and demanding task. Whilst most central government Ministries do have law libraries, the libraries are often incomplete, especially so far as 10
the more obscure guidelines are concerned. The work of putting together a complete set of environmental laws, regulations and guidelines in electronic form has been started. It is hoped that this work will be continued by the Ministry for the Environment as a part of its coordination role. STRUCTURE OF THE REPORT PART A – Background Chapter One is the present introductory chapter. Chapter Two raises as an issue the need to distinguish law from policy and principles. This has been done in order to emphasize the peculiar feature of laws, which is that they contain self-executing rules. It provides the basis for many of the conclusions about the weakness of Indonesian law making caused by a lack of rule formation. Chapter Three examines the issues that need to be addressed in deciding the level at which to draft an environmental law, so that it achieves validity within the legal hierarchy and is as effective as possible. Chapter Four considers the legal basis for the environmental institutions that exist in Indonesia. Part B – Environmental Protection Law Part B reviews the law most commonly recognised in Indonesia as environmental law. It includes laws and regulations which:
seek to protect and control the quality of environmental media (air and water) by controlling the substances which enter those media, such as pollution, waste and hazardous chemicals; focus on substances which pose a threat to the environment, namely wastes (both hazardous and non-hazardous) and non-waste material such as industrial and agricultural chemicals; assess the likely environmental impact of new developments and proposed measures to manage and monitor that impact.
The review will commence in Chapter Five with a discussion of current constitutional protection of the environment and proceed to consider the framework statute: Act No. 23 of 1997 regarding Environmental Management. In Chapter Six it will go on to consider the arrangements for environmental assessment of enterprises, including environmental impact assessment. In Chapters Seven, Eight, and Nine, the pollution legislation relating to fresh water, the sea and the atmosphere will be considered. In Chapter Ten, there will be discussion of measures to control waste. In Chapter 11, there will be brief mention of the management of industrial and agricultural chemicals. Part C – Spatial Planning Part C deals with land use planning, known in Indonesia as spatial planning. Discussion of spatial planning has been divided conceptually into two parts: (a) planning controls; (b) development approval. Spatial planning controls will be discussed in Chapter 12. Development approval and other forms of licensing applicable to new developments will be discussed in Chapter 13. Part D – Natural Resources Management Part D concentrates on the management of natural resources. It is concerned with legal controls over the exploitation of natural resources, both animate and inanimate, and the consideration of environmental
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factors in decision-making. In Chapters 14 - 16 it will consider land use management, soil management, and water resources management. Chapters 17 - 20 it will go on to consider the living environment: the management of ecosystems both within and outside protected area management; the management of biodiversity within protected areas; the management of biodiversity outside protected areas; and the protection of endangered species. Part E - Enforcement Part E is about enforcement. An effective enforcement program is essential. Obviously, the goals of environmental statutes and regulations and their regulatory tools such as standards, prohibitions, obligations and licences, will not be achieved unless they are complied with. Enforcement is also fundamental to rule formation in a legal system, as without the imposition of sanctions, the force behind a requirement evaporates. Three forms of enforcement will be considered in Part E, namely administrative, criminal and civil enforcement.
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CHAPTER 2 – POLICY, PRINCIPLES AND LAW Introduction This chapter will discuss the distinctions between legal policy, legal principles and law. An understanding of the distinction between these concepts is important for environmental policy formulation and law making. The review of environmental law discussed in the report has revealed significant shortcomings and a tendency to neglect the distinctions between these three aspects of law making. A key recommendation of the report is that drafters of laws and regulations pay particular attention to rule formation. This chapter explains the basis for this recommendation. THREE CONCEPTS Environmental policy A policy is a creation of government which precedes lawmaking and which establishes goals for lawmaking. A policy is an aspirational document. A policy also explains an approach that is expected to bring about desired effects. Policy formulation involves the selection and application of legal policy tools to achieve desired results. The law then turns a preferred legal policy into statements of principle and rules for the achievement of the policy goals. In Indonesia, policy (kebijakan) and law (hukum) are often not clearly distinguished from each other. For example, the Broad Outline of State Policy (Garis-Garis Besar Haluan Negara) (GBHN) is a statement of policy but it is also a source of law. The two regional autonomy laws: Act No. 22 of 1999 regarding Regional Government (Undang undang No. 22 Tahun 1999 tentang Pemerintah Daerah) (UU 22/99) and the implementing Government Regulation No. 25 of 2000 regarding the Authority of Central and Provincial Government (Peraturan Pemerintah No. 25 Tahun 2000 tentang Kewenangan Pemerintah Dan Kewenangan Propinsi Sebagai Daerah Otonomi) (PP 25/2000) do not refer in detail to laws or law making authority. The only reference is in article 2(3) 24 of PP 25/2000 concerning central government authority in the field of law and legislation, which states that central government has authority to create and nurture national legislation (pembinaan hukum). Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup), the framework law for the environment, does not refer to authority for law making although it does refer to authority to make policy. Confusion between policy and law is demonstrated in Government Regulation No. 20 of 2001 regarding the Fostering and Oversight of Regional Government (Peraturan Pemerintah No. 20 of 2001 tentang Pembinaan dan Pengawasan atas Penyelengaraan Pemerintah Daerah), which defines regional policy as: Regulations, directions, references, determinations and guidelines that derive from regional regulations, decisions of the head of a region, decisions of the head of a regional parliament and decisions of the leader of regional parliament.
There is also uncertainty about which instrument is appropriate for statements of policy. Should policy be attached to a legal instrument or should it have a separate identify? This is issue is yet to be resolved in Indonesia. Environmental principles The statement of principle is an important aspect of law making in a new area of law such as environmental law. By stating a principle, the law establishes a reason for a legal standard to be observed. That reason may be a requirement of justice or morality, or in the case of environmental law, good environmental
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practice. The effect of a principle will depend on how much weight or importance it is given. If one principle conflicts with another, the principle of greater importance will prevail. There are many statements of principle in international environmental law provides. Examples are those contained in the Declaration of Principles passed at the 1992 United Nations Conference on Environment and Development.1 Common linguistic structures for statements of principles are Human beings are entitled to X… States have the right to X… To achieve X…. States should do Y…. Each individual shall have X….. States shall do Y…
An example is Principle 10 in the Declaration of Principles that deals with the right to participate. It states: At the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available….
Another example is Principle 15 in the Declaration of Principles. It sets out the precautionary principle as follows: In order to protect the environment the precautionary principle shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
A principle may be proposed as part of a policy or formulated in a statute. In environmental law, national policies or statutes often incorporate principles that previously have been formulated in international law instruments. Examples of these kinds of principles are: the polluter-pays-principle, the precautionary principle, inter-generational equity and the principle of sustainable development. If a principle is formulated in an act, it usually appears in the purpose or objects section. To be effective the formulation of a principle will need to be clear, and in language both commonly understood and readily applicable. The distinction between policy, principles and law The key distinction between law and both legal policy and legal principles, is that law also contains legal rules which have self-executing consequences. Unlike a legal rule, a legal principal or policy does not contain a consequence. The key qualities and structure of laws will be discussed below. It will become apparent from the report, however, that many statutes and regulations dealing with environmental matters in Indonesia are dominated by references to policy and statements of principle. There is a level of uncertainty regarding the consequences that may flow from their breach.
1 31
I.L.M. 874 (1992)
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LAW AND THE ROLE OF RULES The legal hierarchy The legal positivist tradition has been particularly important to the development of the law in Indonesia. Its influence arises from the Dutch colonial heritage and the location of Dutch legal theory within the German legal positivist tradition. Fundamental to the positivist tradition is the concept that legal validity is acquired through following a legal hierarchy. The highest point of the hierarchy in Indonesia is the state philosophy Pancasila. This is followed by the Constitution (Undang-undang Dasar 1945) (UUD 1945). Constitutionally, the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) (MPR)2 is the supreme state law making body. Once a mandate for law making has been granted through the issuing of the Broad Outline of State Policy (GarisGaris Besar Haluan Negara) (GBHN),3 the hierarchy takes the form as set out in Decision of the MPR No. 3 of 2000 regarding Sources of Law and the Order of Legislation (Ketetapan Majelis Permusyawaratan Rakyat No. III/MPR/2000 tentang Sumber Hukum dan Tata Urutan Peraturan Perundang-undanganan) (Tap MPR/III/2000) (art 2)). Thus the hierarchy is as follows: 1. The Constitution (Undang-undang Dasar 1945) (UUD 1945) 2. Resolutions of the MPR (Ketetapan MPR) (TAPMPR) 3. Laws or acts (Undang-undang) (UU) passed by the House of People’s Representatives (Dewan Perwakilan Rakyat ) (DPR) 4. Government regulations which amend Undang-undang (Peraturan Pemerintah Pengganti Undangundang) (Perpu) 5. Government regulations (Peraturan Pemerintah) (PP) 6. Presidential decrees (Keputusan Presiden) (Keppres) 7. Regional regulations (Peraturan Daerah) (Perda). Authority for creating statutes or laws (UU) comes from the Constitution and resolutions of the MPR (TAP MPR/III/2000 art 3(3)). Government regulations (PP) are created by the government in order to implement UU (TAP MPR/III/2000 art 3(5)) and are approved by the President (UUD 1945 art 5(2)). Keppres are regulations in the form of decrees of the President to put into effect functions and tasks for the arrangement of state and government administration (TAP MPR/III/2000 art 3(6)). Perda implement higher law issued by central government, and are tailored to conditions in the regions (TAP MPR/III/2000 art 3(7)). They include provincial regulations at the following levels (TAP MPR/III/2000 art 3(7)): (a) provincial level – Peraturan daerah propinsi4 (b) local level - Peraturan daerah kabupaten/kota 5 and (c) village level – Peraturan desa 6
2 Art
1(2) 1945 Constitution 3 1945 Constitution. 4 Prepared by the Provincial DPR - (DPR Daerah Propinsi) together with the governor 5 Prepared by the District DPR – (DPR Daerah Kabupaten/Kota) together with the mayor (Bupati/Walikota) 6 Prepared by the Village Representative Body (Badan Perwakilan Desa) 3 Art
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LEGAL RULES What is a legal rule? Fundamental to law making is the role of legal rules. The most important feature of a legal rule is that it is applicable in an all-or-nothing fashion. It takes the form of “if X then Y”. In this sense it is self-executing. The effect of a rule does not depend upon a judgement as to what is more just, equitable or moral. The effect of a principle does depend on such a judgement. In Bahasa Indonesia there is a number of words for rule.
Kebiasaan is a pattern of conduct.
Kaidah or norma-norma is a social prescription or norm.
Peraturan is the word used for the rules of a game as well as for a regulation.
A legal rule is more than a pattern of conduct and more than a social prescription or norm. It could be said to be a special kind of norm, one that has a mark of socially recognised validity. A legal rule is also formal and official and must be put into effect. The Bahasa Indonesia word closest to a “legal rule” is peraturan, which is also the word for regulation. The difficulty with this word is that a rule is a component of a regulation and a regulation can be more than “a rule”. Indeed, a regulation can be a whole system of rules. Perhaps, rather than have one word for both rule and regulation, it would be better to use two different words, peraturan for a single rule and regulasi for a system of rules. The function of rules Rules have a range of functions that may be summarised as follows: 7 (a) Rules create fairness in decision-making, as they are general, impersonal and acontextual. A decision can therefore be based not on who you are but on what you are and what you did. (b) Rules facilitate reliance, which in turn can assist planning. They do so by providing simplification and a designation that is public and categorical. Whilst it may be too strong to say that rules will lead to certainty, as this will only occur if a rule is actually enforced according to its terms, they will increase predictability if the consequences regarding enforcement are accessible. (c) Rules allocate responsibility and in this sense are jurisdictional devices for determining who should consider what. (d) Rules limit power in that they narrow the range of factors to be considered by particular decisionmakers thereby establishing and constraining the jurisdiction of those decision-makers. Rules can also set out what a decision-maker is able to take into account. By way of contrast, a decision-maker not constrained by rules has the power, the authority and the jurisdiction to take everything or anything into account. Rules therefore assist the building of legal accountability. (e) Rules can assist efficiency by channeling or streamlining the efforts of decision-makers, by giving their attention to a comparatively small number of easily identifiable factors. (f) Rules avoid error as they can avoid a situation where a decision maker may not make the best decision because he or she has been required to look into every factor.
7 The analysis regarding rules is taken from Schauer F Playing by the Rules - A Philosophical Examination of Rule-
Based Decision-Making in Law and in Life Clarendon Press Oxford 1991
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(g) Rules assist coordination. The simplifying function of rules makes them a necessary condition for the evolution of cooperative solutions, as they help us to see our welfare as linked to that of the group. They can also be instruments of homogenisation as they allocate power away from individual members of the community, to the community as an institution. Thus through rules, different sectoral interests can be linked to those of society as a whole. TYPES OF RULES Rules in a legal system can be divided into the following: (a) Primary rules which regulate conduct and establish rights, obligations, duties, and prohibitions. (b) Secondary rules which govern the creation, change and interpretation of primary rules by stipulating how, and by whom, primary rules are created, changed or revoked. Rules become binding through one of two means. A group may accept a rule as a standard for the conduct of its members so that those who follow the group’s practice regard the rule as binding. This is commonly the situation in customary law (adat law). In a formal legal system, a primary rule will be binding only when it has been enacted in accordance with a secondary rule, which makes it ‘valid’. Secondary rules stipulate how, and by whom, primary rules may be formed, recognised, modified or extinguished. In the version of positivism put forward by HLA Hart, a legal system comes into being upon the merger of primary rules regulating conduct with secondary rules governing the recognition, change and adjudication of the primary rules.8 According to Hart, when a community has developed a fundamental secondary rule that stipulates how legal rules are to be identified, the idea of a distinct set of legal rules, and thus of ‘law’, is born. Hart calls such a rule, a ‘rule of recognition’. In a constitutional government, rules of recognition are contained within constitutional provisions.9 If his analysis is applied to the formal legal system in Indonesia10, the Constitution is the key secondary rule in the system of government and is the ‘rule of recognition’. TAPMPR/III/2000 is also a secondary rule. Thus if a UU, PP, Keppres or Perda is not created in accordance with the hierarchy established in TAPMPR/III/2000 it would lack legal validity. HAS A RULE BEEN CREATED? For a provision to be a rule it must have a linguistic structure resembling the formula “if X……. then Y”. The presence or absence of such a structure may not be immediately apparent from the wording of the rule. It may be necessary to analyse carefully the logical structure of a provision of an act or regulation. Within the “if X… then Y” structure, the words chosen to express the rule will affect its rule formation. There are three relevant qualities of language which affect rule formation: precision (presisi) or vagueness (ketidakjelasan, kekaburan) clarity (kejelasan) or opacity (keburaman) simplicity (kesederhanaan) or complexity (kerumitan)
8 Hart
HLA, The Concept of Law, Oxford University Press 1960 at pp.77-96.
9 Dworkin has argued that if a community regards customary practice as legally binding there is no need for such a
master rule, the whole point of the master rule or rule of recognition is undercut: Dworkin RM “Is Law a System of Rules?” Dworkin RM (ed) The Philosophy of Law Oxford University Press USA 1977 pp.38-65 at p.63. 10 To be distinguished from systems of adat law in Indonesia.
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In Indonesian law, the rules that do exist frequently suffer from the problems of vagueness, opacity or complexity. Vagueness Vagueness can arise: from a lack of detail as to the manner, time and place in which an action is to be performed; where the meaning of a word requires an evaluation, for example, when it is qualified by an adjective such as ‘fair’, ‘complete’, or ‘efficient’; or from the use of a generic term, which refers to a class of objects or events, rather than a specific term which, refers to specific objects or events. If a rule is vague, it will be ambiguous, and therefore less likely to be effective as a rule. Ambiguity creates the opportunity for different and conflicting interpretation and can thus cause confusion. Opacity Clarity influences the extent to which the rule is understood, both by enforcers of the rule and those bound by the rule. If a rule is opaque, it will be difficult to understand and apply. If a rule fails to use everyday language or words that have clearly defined meanings, it is more likely to be opaque and misunderstood. A good rule-maker will consider the effect of the choice of words and choose words with well-defined or universally accepted meanings. Complexity Complexity refers to the number of factual situations or assessments to be considered and assessments to be made in the application of a rule. A degree of complexity may be necessary for the sake of completeness but unnecessary complexity can hinder understanding and therefore application. It has become apparent through the review of environmental legislation in Indonesia that Indonesian legal drafting frequently suffers from vagueness, opacity and unnecessary complexity. As a result, rule formation in statutes and regulations in Indonesia is undermined. There will be numerous examples mentioned throughout the report. The need in Indonesian legislation for an elucidation confirms that frequently the drafting is not clear. Unfortunately, the elucidation itself often becomes another source of uncertainty when it contains additional rules not found in the body of the act or regulation. MAKING LAWS ABOUT POLICY Although a policy does not contain within it a legal consequence, a government can be obliged to produce a policy and a policy can be made binding. Requiring policy The terms of a law about the making of policy can provide the means by which the production of a policy is an obligation imposed upon government. Where a legal instrument specifically provides for the preparation of policy, that instrument may make the production of policy either discretionary or compulsory. For example, New Zealand Resources Management Act 1991 (the RMA) creates a hierarchy of policy statements and plans to integrate the management and use of natural and physical resources. Under the RMA the issuing of national policy statements is a discretionary power i.e. the national government may (or may not) issue a particular national policy statement.11 However, each region is required to issue a 11 Although the Act does list the criteria which the Minister “may have regard to” in determining whether a national
policy is “desirable”.
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regional policy statement as an overview of resource management issues in the region. Thus, a rule has been created within the RMA, imposing an obligation on government to ensure that the regions issue regional environmental policy statements. Making policy binding A law can provide a mechanism by which a policy becomes binding.12 Where a policy is the product of a statute, the statute can require the implementation of the policy. This requirement would take the form of a rule imposing an obligation upon government to implement policy. It is the law that makes the policy binding, however, not the policy itself; the policy is a product of the law. By way of further explanation, the RMA establishes a hierarchy of policymaking, at the top of which are National Policy Statements. The RMA states that once a national policy comes into existence, local authorities are required to take the necessary steps to remedy any inconsistency or conflict between a national policy statement and a regional policy or plan, and to take all other steps necessary to implement the national policy statement. Furthermore, the Minister is empowered to monitor the functioning and administration of the Act and to take action where a local authority is in default. Thus section 55 provides as follows: (1) In achieving the purpose of this Act, on receipt of a national policy statement, ….where the national policy statement deals with any matter relevant to the exercise of a local authority's functions, powers, or duties under this Act, the local authority shall: (a) Where there is any inconsistency or conflict between the national policy statement as so issued, changed, or revoked and any local authority statement or plan, in accordance with the First Schedule initiate all necessary changes to the policy statement or plan in order to remove that inconsistency or conflict. (b) Take all such other action as may be necessary in order to implement the national policy statement as so issued or changed, including: (i) Initiating a change to any policy statement or plan of that local authority in accordance with the First Schedule (or, in the case of a regional council, preparing a regional plan), to address any issue or achieve any objective of the national policy statement: (ii) Taking such other action as may be specified in the national policy statement.
In New Zealand, the Court of Appeal has held that it is appropriate for regional policy statements to contain detailed directive provisions and that these provisions may impose restraints on management decisions. The court took into account both the RMA’s actual requirement for the implementation of a policy statement and the RMA’s stated purpose of integration of the management of natural and physical resources.13 CONCLUSIONS AND RECOMMENDATIONS There are clear distinctions to be made between policy, principles and law. The chief distinction is that law provides the mechanism to implement policy and secure principles (which are non-binding) and that mechanism relies on rules.
12 This issue arose in April 2001 in relation to the formulation of the new National Water Policy for Indonesia.
At the time it was suggested that the policy should be converted into a Keppres in the hope that it would ensure that the government would implement the policy. 13 The Court of Appeal reached this conclusion in Auckland Regional Council (Unreported CA/29/95 (CA)) cited in Mascher S, “Water Management in New Zealand: The Resource Management Act 1991” in Bartlett RH, Gardner A and Mascher S, Water Law in Western Australia : Comparative Studies and Options for Reform, The Center for Commercial and Resources Law, University of Western Australia, WA 1997 pp.171-201 at p.185.
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All rules have a linguistic structure which takes the form “if X then Y”. The strength of a rule may be diluted by the choice of words and phrases with which to draft the rule. In particular, if there is vagueness, complexity or opacity, the effectiveness of a rule will be reduced. In Indonesia, environmental law reform needs to have a clear conception of the roles of law and rule formation, as distinct from those of statements of principle and policies. References to policy making should be distinguished from references to law making. Statements of principle in environmental law should not be regarded as sufficient but should be supported by rules. New laws and regulations should transparently follow the secondary rules in the legal hierarchy. In the drafting of environmental law, vagueness, opacity and unnecessarily complex structures should be avoided. Consideration could be given to using legal mechanisms to oblige government to formulate and implement policy. This becomes particularly important in the context of regional autonomy and in the light of the desirability of having a structure of policy statements and plans integrating the management and use of natural and physical resources.
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CHAPTER 3 - LEVELS OF ENVIRONMENTAL LAW MAKING Introduction Indonesia has recently moved from a centrally based system of government to one that has embraced regional autonomy and the decentralisation of power to the provinces and districts. Amendments to the 1945 Constitution (Undang-undang Dasar 1945) passed on 18 August 2000 (UUD 1945 (second amendment)) describe the unified state of Indonesia as consisting of provinces and districts, each with their own regional governments, parliaments, and democratically elected heads of government (article 18(1)(4)). Central government power is now defined as being those powers that have not been handed over to regional government (art 18(5)).1 As has been mentioned in Chapter Two, law making in Indonesia follows a legislative hierarchy. In recommending law reform, within the context of regional autonomy, a decision has to be made regarding whether new law should be a creation of central government or regional government. If it is to be a creation of central government, a further decision is required as to whether it should be contained within a formal legal instrument or a non-binding guideline. If it is to be a formal legal instrument, a decision needs to be made whether it should be contained within an Act (Undang-undang (UU)), Government Regulation (Peraturan Pemerintah (PP)) or Presidential Decree (Keputusan Presiden) (Keppres)). If a subject matter does not fall within central government authority, it will fall within regional authority. A further decision needs to be made as to whether the subject matter is appropriate for a Regional Regulation (Peraturan Daerah (Perda)) and if it is, whether it should be issued at the provincial level or at the district level. This chapter will highlight the wide scope for interpreting lawmaking authority that exists within regional autonomy as well as the absence of principles for determining the appropriate level of environmental lawmaking in Indonesia. It will suggest that there should be debate about the appropriate levels of government for particular sorts of environmental law making so that principles and rules may be formulated to clearly allocate central, provincial and district government lawmaking authority. THE EXTENT OF CENTRAL GOVERNMENT AUTHORITY FOR THE ENVIRONMENT Regional autonomy law The national autonomy law sets out the secondary rules allocating the different subject areas of law making to the different levels of government. Essentially, all authority for government has been handed over to the regions pursuant to Act No. 22 of 1999 regarding Regional Government (Undang-undang No. 22 Tahun 1999 tentang Pemerintah Daerah) (UU 22/99) (art 7(1)) except authority for certain specified areas, namely, foreign affairs, defence, national security, justice, finance, religion and authority for “other areas” (UU 22/99 (art 7(1)). The “other areas” include policy on national planning and development in a macro sense, financial affairs, national administration, the national economy, human resources, the exploitation of natural resources, higher technology, conservation and, national standardisation (UU 22/99 (art 7(2)). The “other areas” are set out again in article 2(1)) of Regulation Number 25 of 2000 Regarding the Authority of Government and Authority of the Regions in Regional Autonomy (Peraturan Permerintah Republik Indonesia No. 25 Tahun 2000 Tentang Kewenangan Pemerintah Dan Kewenangan Propinsi Sebagai Daerah Otonomi)(PP 25/2000). These areas include the making of policy on national planning 1 Article
7, Act Number 22 of 1999 concerning Regional Government (Undang-undang No. 22 Tahun 1999 Tentang Pemerintahan Daerah)
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and control of national development at the macro level, managing financial affairs, state administration and state economic institutions, human resources, exploitation of natural resources and strategic technology, the fostering of human resources, conservation and national standards (PP 25/2000 art 2(2)) PP 25/2000 is the most detailed legal instrument on regional autonomy passed to date. It is questionable why its content was placed within a government regulation, in view of the fact that its contents conflict with many pre-existing statutes. It would be preferable for it to be in a legal form that is at the same level or higher than the statutory form. PP 25/2000 includes a long list of the subject matter that falls within the “other areas” scope of central government authority.2 Central government authority for the environment (art 2(3) 18) is stated to include: a. b. c.
d. e.
The passing of guidelines for control over natural resources and the preservation of the functions of the environment The regulation of environmental management in the utilisation of marine resources beyond the span of 12 nautical miles. Assessment of the environmental impact of activities that: potentially have an adverse impact on the broader community and/or are concerned with defence and security, have the locations encompassing more than one province, are located in area in dispute with other states, are located in the sea territory beyond the span of 12 miles or are located in a border crossing area. The determination of standards of environmental quality and guidelines for managing environmental pollution. The passing of guidelines for the conservation of natural resources.
Central government authority also includes the building and improvement (pembinaan hukum) of national laws and legislation (art 2(3) 24a). Furthermore, central government authority may be exercised in relation to:
The passing of guidelines for the determination of minimum standards of service in fields that must be implemented by district level government (art 2(4)b)
The determination criteria for the determination of and change in the function of zones and land in the framework of compiling spatial plans (art 2(4) c)
The passing of guidelines for the management and protection of natural resources (art 2(4) g)
The regulation of the application of international agreements or treaties ratified on behalf of the state (art 2(4) I)
The determination of standards for the giving of licences by regional government (art 2(4) j)
The regulation of exports and imports and quarantine implementation (art 2(4) k)
2 This list is made up of the fields of agriculture, maritime affairs, mining and energy, forestry and plantations, industry and commerce,
cooperatives, capital investment, tourism, manpower, health, education and culture, social affairs, spatial planning, defence, housing, public works, communications, the environment, internal affairs and public administration, regional development, finance, the population, sport, law and legislation and information. It also identifies those areas that fall within regional and district government authority.
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Rules for allocating central government environmental authority The extent of central government authority is unclear. The instruments defining it could be interpreted widely or narrowly. The general approach seems to be to reduce the direct regulatory powers of central government. The emphasis is on the passing of guidelines (pedoman). Thus only regulatory powers, which exist without doubt, are in maritime affairs beyond the 12 nautical mile limit and in the application of international agreements or treaties. One interpretation is that central government has power to make guidelines but not laws. However, this interpretation is both impractical and inconsistent with government practice. In order to understand the extent of the central government’s authority for the environment further interpretation is needed. The “determination of standards of environmental quality” and the “determination of standards for the licensing by regional government” could provide the authority for central government to take a direct role in environmental management. Government Regulation No. 102 of 2000 regarding National Standards (Peraturan Pemerintah No. 102 Tahun 2000 tentang Standardisasi Nasional) defines standards, as “technical specifications”, or “something that sets a standard of methodology” (art 1(1)). On this basis it would appear that central government is able to determine environmental standards such as ambient air quality of effluent discharge standards. It is also able to determine the procedures to be adopted for the grant of licences and other approvals by regional government. The structure of central government law making provides some guidance for allocating central government environmental authority in that it follows these general lines: (a) The Constitution enshrines the broad principles of government.3 (b) Statutes (Undang-undang) define the parameters of the fiscal system, the structure of regional government, procedures, accountabilities and legal remedies. (c) Regulations (Peraturan Pemerintah and Perda) associated with each statute describe and interpret practices and measures for the implementation of the law. (d) Presidential Decrees facilitate carrying out the functions and tasks of government administration. The question arises, however, whether UU lawmaking authority extends or should extend to the institutional details of the regional government structure in so far as it affects environmental management, procedures for environmental decision-making, procedures to establish accountability and legal remedies for the violation of environmental laws. Another question is whether certain environmental problems should be managed at the national level because of their “national importance”, a term which needs definition. CENTRAL GOVERNMENT LAW OR GUIDELINES? If a matter falls within central government authority, a choice needs to be made whether it should be dealt with by law or by way of non-binding guidelines. Guidelines Since the arrival of regional autonomy, the emphasis in practice has been on the central government’s role in passing guidelines (pedoman) to supplement the formal law and/or to assist in the drafting of Perda.
3 Elsewhere this would include the rights and responsibilities of all levels of government; a description of the role of key institutions at
central and local levels; and the basis on which law may be established or changed.
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Pedoman are not included in the legal hierarchy and it seems to be generally accepted that they have no legal effect in the sense of they do not create legal obligations. The pedoman is one form of guideline. Another form of guideline is the Ministerial Decree (Keputusan Menteri (Kepmen)). There appears to be some confusion within government circles as to whether Kepmen may still be issued and if they can, what effect they have. TAPMPR/III/2000 states that the earlier TAPMPR/XX/1966 has been revoked and no longer has effect (art 7). It was this TAPMPR that gave kepmen validity as legal instruments.4 On a strict interpretation kepmen passed after the promulgation of TAPMPR/III/2000 will be neither a legal instrument nor legally binding. However, this would not prevent a kepmen from being issued as a guideline. There already exist many guidelines dealing with many aspects of environmental management. Such guidelines take the following forms: Ministerial Instruction (Instruksi Menteri) Circular (Surat Edaran Menteri) Decision of the Director General (Keputusan Direktur-Jendral) Decision of the Head of BAPEDAL (Keputusan Kepala BAPEDAL) Formal law or guidelines? The choice between formal law and guidelines for a particular subject matter depends upon how much flexibility one wants district government to have for that subject matter. Formal law will be binding upon regional government. A guideline will in itself not bind regional government and the regional government may or may not at its option adopt the guideline or translate it into formal law through the drafting of a Perda. The government has provided no guidance for decision making on this point. Yet these decisions are critically important ones for regional government. Every time a national guideline is passed, regional governments need to decide whether they will turn it into law and, if so, how. A national guideline therefore imposes a burden of law making on the regions. A major consideration is the need to avoid unnecessary duplication of the human effort that goes into drafting Perda in each province and district across the country. It is recommended that when national government chooses to make a guideline, the guideline should provide sufficient detailed legal rules to enable regional government to adopt the guideline as law with a minimum of further work. Consideration needs to be given to the kind of subject matter more appropriately included as laws rather than guidelines. It is suggested that the following areas of environmental management should be the subject of central government laws rather than guidelines: (a) Aspects that relate to good governance: this would include rights and obligations set out as procedures to ensure access to environmental information, transparency of decision-making, rights to participation and accountability for environmental decisions. (b) Environmental sanctions: this is necessary to create a “level playing field” throughout Indonesia.
4 This would also include instruments sometimes known as Ministerial Regulations (Peraturan Menteri) and Joint
Ministerial Decrees (Keputusan Bersama Menteri)
24
(c) Institutional details of the structures of environmental governance at the local level: this is necessary for the sake of clarity, national consistency and to secure coordination. It needs to be kept in mind that where national law lacks the sort of detail needed to make it operational, the detail will need to be provided by regional government, in order to make it implementable at the regional level. In relation to the abovementioned subject areas, it is suggested that the law at the national level should have sufficient rule making detail to make it operational save for provincial regulations that are needed to describe and interpret practices and measures. It should not rely on further detail being drafted at the regional level in order to be effective as law. UU, PP or Keppres? Once a decision is made in favour of a law rather than a guideline, a further decision needs to be made regarding the form of the law at the national level: should it be a UU, a PP or a Keppres? The function of a Keppres is clear. It is made by the President to facilitate carrying out the functions and tasks of government administration, as the President’s higher authority is needed to impose obligations and duties upon the different sectors of government. If the subject matter is not appropriate for a Keppres, however, a choice must be made between a UU and a PP. It is stated in TAPMRP/III/2000 that PP are to implement UU (art 3(5)). However, it must be decided what is “the law” and what is “the implementation of law”. Where is the dividing line? And does it make any difference in practice whether a UU or a PP contains particular subject matter? In other countries, much of the detail that is regarded in Indonesia as merely the “implementation” will be contained within the body of a statute. Schedule of law making levels To facilitate discussion of these issues, Table 8 has been prepared as a schedule suggesting the desirable level of law making for a number of legal policy instruments.
25
Table 8: Suggested levels of law making for particular legal policy instruments UU PP Keppres
GuidelinesPedoman/ Kepmen
Provincial/ Provincial/ District District Perda Guidelines
x
x
x
x
x
x
Definitions
x
Rights
x
Obligations and prohibitions upon citizens
x
Obligations upon government
x
x
Provision of government authority
x
x
Inventory making procedure
x
x
Environmental classification systems
x
x
Planning procedure
x
x
x
x
x
x
Environmental impact assessment
x
x
x
x
x
x
Standards – waste discharge standards, ambient
x
x
x
standards Licensing and other environmental approvals
x
x
Compulsory audits
x
x
Monitoring by government
x
x
Self-monitoring
x
x
x
x
x
Voluntary audit
x
x
x
x
x
Administrative enforcement
x
x
x
x
Civil enforcement
x
x
x
x
Criminal enforcement
x
x
x
x
Community enforcement - rights and procedures
x
x
x
Dispute resolution outside the court system
x
x
x
x
x
Restoration and rehabilitation
x
x
x
Re-evaluation of environmental conditions
x
x
x
Rights for public participation
x
Access to environmental information
x
Environmental taxes
x
x
x
x
x
Fees
x
x
x
x
x
Subsidies
x
x
x
x
Tradable Permits
x
x
x
x
Deposit refunds
x
x
x
x
26
x
x
x x
x
x
To interpret the table the following applies:
Where it is considered preferable that national law at the level of UU should be complete so that nothing further is required for implementation, a cross has been placed in the UU column. The option remains for further regulations and guidelines to be passed at either the national or regional level. Where it is considered national law at the level of UU will need more detail by way of PP, there is a cross in both columns. Where it is considered national law at the level of UU will need more detail by way of Keppres, there is a cross in the Keppres column as well as the UU column. Where it is considered national law at the level of UU will require more detail by way of national guidelines, there is a cross in the Pedoman/Kepmen column. Where it is considered that regulations to take into account conditions at the regional level will be necessary, there is a cross in the column for regional/district Perda. Where it is considered that guidelines to take into account conditions at the regional level will be necessary, there is a cross in the column for regional/district guidelines.
REGIONAL GOVERNMENT – NEW ENVIRONMENTAL RESPONSIBILITITIES Regional government As mentioned above, pursuant to UU 22/99, regional government has authority for all government functions apart from those reserved for central government (art 7(1)). This means that unless an aspect of environmental lawmaking has been reserved for central government, the regional government is responsible for developing and implementing the laws and regulations concerning it. If the autonomy law provides for a subject matter to be dealt with at the regional level, a decision needs to be made as to whether the subject matter should be included in a provincial Perda or a Perda produced by district government. Provincial Government Provincial government has been granted authority for fields of government straddling district level government boundaries (art 9(1)). The authority includes authority not able to be implemented by district level government (art 9(2)) or specifically referred by central government to the governor as the representative of central government (art 9(3)). Regional government’s responsibility for managing national resources and protection of the environment in accordance with national legislation is specifically mentioned (art 10(1)). The provincial level of government has environmental responsibility for the sea between 4 and 12 nautical miles from the coast, including the following (art 10(2) a-d): a. exploration, exploitation, conservation, and management of the wealth of the sea b. administration c. spatial planning d. enforcement of regulations made by the province or referred by the central government for enforcement. Clarification of provincial government authority is provided in PP 25/2000. Pursuant to PP 25/2000 areas of authority specifically provided to the provincial government concern government functions which cut across
27
District government boundaries (art 3(1)). Provincial government also has authority for matters of planning and control of development in a macro sense in specified areas, namely, planning and control of regional development, training in certain fields, allocation of human resources, research that entails the districts of the province, management of regional harbours, the environment, promotion of commerce, culture and tourism, handling of contagious diseases and pests, and spatial planning for the province (art 3(2)). In addition, the province is able to implement authority that has not been or is not able to be implemented by district government (art 3(3)). This is to be done by an agreement between the provinces and the district government (art 3(4)). The areas intended to be included in article 3(2) of PP 25/2000are listed in article 3(5). In the environment al sphere, the provinces have authority for (article 3(5)16): a. control of the environment spanning district governments; b. regulation of environmental management of the sea between 4 to 12 nautical miles from the coast; c. security and preservation of water resources spreading between districts; d. environmental impact assessment for activities that have the potential for negative impact upon the wider community and which are located in more than one district; e. oversight of the implementation of conservation of the environment which spans districts; and f. determination of environmental quality standards based on national environmental quality standards. The elucidation of PP 25/2000 states that indicators to determine provincial authority are:
the guarantee of balanced development in the province; the even spread of services throughout the population of the province; efficiency in the delivery of government services.
It is also stated that, in bordering districts, if a government service is provided to more than 50 percent of the population it is to be provided by the province but if it is provided to less than 50 percent of the population it is to be provided by the district. District Government District government is to manage the balance of government authority not allocated to the central government or provincial government (UU 22/1999 article 11(1)). In relation to the sea, district government has authority for one third of the provincial maritime zone (art 10(3)) that is, the area of sea from the intertidal zone up to 4 nautical miles from the coast. In addition, fields of government that must be carried out at the district level are stated to include public works, health, education, industry and commerce, capital investment, the environment, agriculture, cooperatives and manpower (art 11(2)). Provincial Perda or District Perda? The provisions regarding the delineation of authority between provincial and district levels of government have been drafted for general application without any specific consideration of application to environmental management. Indeed, it is not clear as to how they are to be applied to environmental management. The extent of provincial authority is a matter for interpretation. The province, depending upon how particular aspects of environmental management are interpreted, could hold significant areas of environmental
28
responsibility. For example, in relation to water resources, the question of whether district level government or the provincial government has authority is likely to turn upon the definition of the boundaries of a watershed. Similarly, if a defined area such as a sensitive ecosystem extends beyond a district, then it will fall within the responsibility of the province. Further indication could be provided at the national level regarding the division of responsibility between regional and district government in environmental law. This issue will also need to be dealt with at the national level in laws relating to particular aspects of environmental management. There is a need for the establishment of principles and the means to determine bio-geographic regions, which will then determine the responsible level of government in planning and management. Criteria are also needed to determine whether the environmental impact of a proposed development spreads over the boundary of a district. Regional guidelines Another decision that needs to be made relating to the level of law making is whether an environmental measure should be introduced through a Perda, which is a legally binding instrument or a guideline in the form of an informal legal instrument. Little guidance has been provided by the legal system on this point. MANAGEMENT PLANS One aspect of law making that is particularly important for environmental law is the formulation of management plans. This is particularly important for the establishment of systems of locally based management of natural resources discussed in Part D. For a management plan to have authority, it should be a “creature of statute” i.e. it should be made pursuant to a statute. The law may provide that district or sub-district government must adopt a management plan on a particular subject matter. It may prescribe the objects to be pursued in making the plan, what generic subject matter the plan is to contain and the procedure for making the plan. A management plan is particularly useful if it contains formal rights and obligations. This is possible if the founding statute provides for it, for example if it authorises a plan to contain enforceable rights and obligations. An example from outside Indonesia is the management plan that must be adopted by local councils in the state of New South Wales in Australia (the equivalent of a district government in Indonesia). The Local Government Act NSW 1993 (as a state act it is equivalent to a provincial Perda) imposes obligations on district government to adopt a management plan before the end of each year. The management plan must contain a statement of principal activities, objectives and performance targets, the means to achieve the targets, the manner in which performance is to be assessed and certain prescribed matters such as activities relating to sewage and waste, the coast and estuaries. There is also an obligation to consult the community in making the plan.5 Community management may also take the form of an agreement negotiated and made by traditional communities and those seeking to use a resource under their control or an environmental management plan instituted by regional government based on a particular bio-geographical region such as a coastline or a river basin, after widespread public participation of the local community. To the extent that legally binding rules may be established through agreements or plans of management, such instruments provide an 5 See
generally the Local Government Act 1993 (NSW)
29
additional source of law that may be used in environmental management. To have this quality, however, the instruments would need to be officially acknowledged by the formal legal system as “law”. The formal legal system preferably would also set out the kinds of issues that can be the subject of such agreements as well as environmental safeguard provisions. If the law is to provide for management plans, a question arises as to which level of law should provide for which plans? The following could serve as a guide: Central Government (UU/PP)
Central Government (UU/PP)
Management plan by Provincial or District Government
Perda (Provincial or District)
Management plan by local community or a Sub-District
CONCLUSIONS AND RECOMMENDATIONS The questions posed above show that there is wide scope for interpreting the environmental law making authority of the three levels of government in Indonesia. Moreover, the autonomy laws give little indication of the form law should take at the central government level or indeed whether it should take a binding legal form (as a UU/PP/Keppres/Perda) rather than just be a guideline. This lack of certainty in the autonomy laws is likely to lead to uncertainty about what is expected of each level of government and the best way to proceed. In order to take into account the changes brought about by regional autonomy, the level at which environmental law should be created needs to be debated, clarified and made the subject of clearly articulated national environmental policy. The policy could be used as a “road map” for the environmental law making program and would indicate whether a measure should have legal status and be contained in a UU, PP, Keppres, Perda or whether it should be a non-binding guideline. The policy could be translated into national law so as to provide secondary rules for environmental law making. 6 Central government environmental lawmaking authority should extend at least to the following: procedures for environmental decision-making; legal remedies available when there is a breach of an environmental prohibition or obligation imposed upon individuals, corporations or the government; and 6 For
a discussion of the role of secondary rules, see Chapter Two.
30
institutional details of environmental governance at the regional level;
Central government authority for law making could also include law relating to aspects of the environment that are of “national importance”. Consideration would need to be given as to how to define “national importance” in an environmental context. Central government authority could extend from law making that derives from obligations arising from multilateral agreements or from activities that have international implications where the environment crosses national borders such as forest fires as well as aspects of significance to the nation as a whole and future generations rather than a particular region. Further clarification is needed as to the appropriate level of detail that should go into statutes (UU) as compared to government regulations (PP). In comparison to other countries, Indonesia’s statutes lack detail. Many aspects are postponed to formulation in regulations without any indication from the terms of act as to why it is not dealt with by the act itself. The distinction between what is regarded as the content of an act as opposed to the “implementation” of an act is not clear. Rules are needed regarding the subject matter to be included in national law (UU, PP, Keppres) as compared to non-binding national guidelines (Pedoman, Kepmen etc). The following subject areas should take a legal form:
procedural aspects of environmental law that involve good governance such as the establishment of rights and obligations, access to environmental information, transparency in decision making, public participation and measures to ensure legal accountability; basic environmental protective procedures such as essential prohibitions and obligations, environmental standards, licensing, procedural rules applicable to environmental impact assessment, and the monitoring of obligations imposed on enterprises and the government; legal remedies and sanctions (administrative, criminal and civil); the structure of environmental institutions at the regional level and procedural mechanisms to achieve coordination between relevant sectors.
Whether the legal form should be complete at the national level, or rely on implementation through Perda, is another aspect that needs examination. It would be preferable that all the aspects listed above be complete at the national level. Some aspects of environmental law such as environmental planning, environmental impact assessment, licensing, monitoring and enforcement will need law making through the passing through the combination of an act, regulations and guidelines. It is nonetheless important that basic features be established at the national level in sufficient detail to enable implementation without modification, if institutional capacity at the regional level is weak or there is no desire to alter the national law. Aspects that do not need to be complete in a stand-alone sense at the national level but which are appropriate to be implemented at the regional level include the following: the detail of environmental authority, institutional structures and systems of coordination between regional institutions inventory making procedure classification systems voluntary compliance mechanisms such as the voluntary audit
31
market-based instruments such as taxes, fees, subsidies and tradable permits
Aspects that are appropriate to be dealt with primarily through national guidelines would include technical matters regarding inventory making, classification systems, environmental quality standards, licensing, monitoring, rehabilitation and restoration of damaged environments. These aspects are also appropriate subject matter for guidelines at the regional level. Further clarification is also required regarding the division of environmental law making authority between the provinces and the districts. There are some environments that cross over district boundaries such as river basins, coastal areas and certain ecological regions. At the national level, there is a need for the establishment of principles for determining bio-geographical areas. These areas could become the basis for determining the responsible level of government within a region. Discussion is needed about the formulation of management plans and the place they have in the legal system. In some other countries, the law can and does provide for the formulation of management plans or community-based agreements in a way that enables them to contain enforceable rights, responsibilities and obligations. In this sense management plans are able to become legal instruments like laws and regulations.
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CHAPTER 4 - ENVIRONMENTAL AUTHORITY AND INSTITUTION BUILDING Introduction Even under a complete and well-drafted set of laws and regulations, environmental management control will not be effective without strong environmental institutions. In this sense, an “institution” is a government body which is constructed - through organisational relationships, rules, and procedures - to establish environmental policies and implement environmental laws. The authority of institutions at each level of government (central, provincial and district) is established through legal instruments and thus has a basis in law. It is law that defines the tasks of environmental agencies, establishes their competencies and determines their relationships to other governmental agencies. This chapter will review the legal framework that establishes the institutional arrangements for environmental protection in Indonesia.1 It will look at the definition of the functions, tasks, and authority allocated to the Minister of State for the Environment, the Environmental Impact Management Agency (Badan Pengendalian Dampak Lingkungan) (BAPEDAL) and the Regional Environmental Impact Management Agency (Badan Pengendalian Dampak Lingkungan Daerah) (BAPEDALDA). ENVIRONMENTAL LEADERSHIP WITHIN CENTRAL GOVERNMENT Models of environmental authority The two key environment organisations at the level of central government in Indonesia are the Ministry for the Environment and the Environmental Impact Management Agency (Badan Pengendalian Dampak Lingkungan) (BAPEDAL). Debate has been taking place in Indonesia for some time on the extent of the authority granted to the Minister for the Environment and BAPEDAL, and whether it is sufficient to be effective. There is a range of possible institutional arrangements for environmental control and management at the level of central government. The two main models are:2 (a) Model One A strong centralised agency with regulatory and enforcement authority which reaches across other sectors. Enforcement functions include the drafting, implementation and enforcement of regulations, standard setting, monitoring, licensing, planning and the imposition of sanctions both administratively and through the court system. Many developed countries have such agencies (e.g. the US Environmental Protection Agency). It relies on a model based on litigation and a fully developed and responsive legal system based on the “rule of law”, with litigation available for the resolution of disputes and the imposition of sanctions. (b) Model Two A free standing Environment Ministry without any enforcement function. Such agencies provide advisory and coordinating functions in licensing, environmental impact assessment procedures, 1 A firm legal basis to environmental institutions will not be sufficient.
Adequate human and financial resources are also necessary for an environmental institution to be fully effective. However, these aspects are outside the scope of the report. 2 Sustainable Development of Forests, Land and Water - A World Bank Country Study, World Bank, Washington DC 1990 at p.125. Other models include a technical ministry, which has environmental functions and a national planning agency with environmental functions.
33
standard setting, environmental planning and policy formulation. Enforcement of environmental law, under this model is the responsibility of sectoral Ministries or departments although the environmental agency has a role to play in conflict resolution. Many developing countries favour this model. 3 Minister for the Environment in Indonesia The tasks, functions and authority of the Minister of State for the Environment are set out in Presidential Decree No. 101 of 2001 regarding the Position, Tasks, Functions, Authority, Organisation and Working Arrangements of the Minister of State for the Environment (Keputusan Presiden Republik Indonesia No. 101 Tahun 2001 Tentang Kedudukan, Tugas, Fungsi, Kewenangan, Susunan Organisasi, Dan Tata Kerja Menteri Negara). The tasks of the Minister are stated to be the formulation of policy and coordination of environmental management (art 16). It is stated that in carrying out these tasks, the Minister has the functions of formulating policy; coordinating and increasing the integratedness of planning, monitoring, analysis and evaluation; and reporting to the President (art 17). The Minister also has authority for the following concerning the environment (art 18): (a) determining environmental policy in support of national development; (b) determining guidelines for minimum standards of service to be adopted by district government; (c) national environmental planning; (d) fostering and oversight of the autonomy process including the provision of guidelines, leadership, training, directions and supervision; (e) determining guidelines for the management and protection of natural resources and conservation; (f) arranging international agreements and commitments; (g) determining standards for environmental licensing in the regions; (h) determining national information policy; (i) determining accreditation in the environmental service sector; (j) determining guidelines for the control of natural resources and conservation; (k) regulation of the management of the environment in the use of marine resources beyond 12 miles from the coastline; (l) determination of environmental quality standards and determination of guidelines regarding environmental pollution; and (m) other authority in accordance with provisions in legislation, namely the giving of recommendations regarding the change of land use zoning connected with environmental management. It can be seen that the Minister’s powers closely resemble those of the second model in that the emphasis is on advisory functions such as the formulation of policy, the production of non-binding guidelines, 3 GTZ, Technical Assistance in Environmental Law and Institutional Development in Environment – Focus,
Methodology and Resources GTZ 1998, Bonn at p.15.
34
contribution to national planning, oversight and the setting of standards, rather than monitoring, licensing and the imposition of sanctions. BAPEDAL The other environmental body established at the national level is the Environmental Impact Management Agency (Badan Pengendalian Dampak Lingkungan) (BAPEDAL). The tasks, functions and authority of BAPEDAL are set out in Presidential Decree No. 103 of 2001 regarding the Position, Tasks, Functions, Authority, Organisation and Working Arrangements of Non-Department Government Organisations (Keputusan Presiden No. 103 Tahun 2001 tentang Kedudukan, Tugas, Fungsi, Kewenangan, Susunan Organisasi, Dan Tata Kerja Lembaga Pemerintah Non Departemen). BAPEDAL has been formed to assist the President (art 1) and to implement the tasks of central government in environmental impact control (art 19). It has the following functions (art 20): (a) investigating and composing national environmental policy (b) coordination (c) facilitating and fostering the activities of government departments (d) general administrative services in planning, administration, management, employee affairs, finances, archives, encoding, supplies and housekeeping. To carry out these functions BAPEDAL has been granted the following authority (art 21): (a) composition of national environmental planning in a macro sense; (b) formulation of policy to support national development; (c) determination of environmental information systems; (d) accreditation of educational institutions and certification of professional environmental bodies; (e) environmental impact assessment (in areas allocated to central government); and (f) authority in accordance with laws and regulations, namely: (1) the formulation and implementation of policy for the control of environmental impact; (2) the passing of guidelines for the control of natural resources and conservation of environmental functions; and (3) the determination of environmental quality standards and guidelines for environmental planning. The tasks of BAPEDAL have been defined in more detail in Presidential Decree No 10 of 2000 regarding the Environmental Impact Management Agency (Badan Pengendalian Dampak Lingkungan) (BAPEDAL) (Keputusan Presiden Republic Indonesia No. 10 Tahun 2000 tentang Badan Pengendalian Dampak Lingkungan) pursuant to which it is stated that BAPEDAL is coordinated by the Minister for the Environment (art 24) but is responsible to the President (arts 1 & 25). Its functions are stated to include (art 3): 35
(a) investigation and formulation of technical policy; (b) determination of technical policy in accordance with general policy set by the President and guidance by the Minister and existing legislation; (c) coordination of functional tasks including cooperative arrangements outside Indonesia; (d) strengthening and facilitating of community activities and the activities of governments in the regions; (e) increasing institutional capacity and human resources; (f) prevention and handling of pollution and/or damage to the environment as well as restoration of environmental quality; (g) monitoring, investigation, guidance and technical evaluation for the management of hazardous and toxic waste; (h) supervision, legal compliance and the resolution of environmental disputes; (i) development of information systems and services and community relations; (j) planning the expansion and development of work relations with environmental associates through education and training; (k) expanding readiness for environmental emergencies; (l) monitoring, investigation and oversight through the framework of control of environmental damage. In relation to pollution and waste BAPEDAL’s powers do not expressly include enforcement or licensing of pollution or waste, however, there is a reference to legal compliance but no definition of the term. Thus, the extent of BAPEDAL’s powers seems to have been left unclear. The control of environmental pollution It is stated that BAPEDAL has the task of taking care of (menyelenggarakan) controlling water and air pollution as well as the management of hazardous and toxic waste (art 13). BAPEDAL is authorised to implement (pelaksanaan) the control, monitoring, supervision and evaluation of environmental pollution as a result of certain activities which cause water and air pollution, as well as the management of hazardous and toxic waste (art 14(b)). It is upon this legal basis that BAPEDAL has authority for licensing the processing of hazardous and toxic waste, although to date it has not been given authority for enforcement or licensing in other fields of environmental management. The control of environmental damage The head of the division for the control of environmental damage is tasked with taking care of the control of damage to land and forests, damage to biodiversity and protection of the biological security as well as damage to and pollution of the coast and seas (art 16). BAPEDAL has a technical policy making function (art 17(a)) as well as a function to implement the control, monitoring, supervision and evaluation of environmental damage to land, forests, biodiversity and life and destruction and pollution of beaches and the sea (art 17(b)). Again, the full extent of this authority is not clear from the wording of the regulation. BAPEDAL is concerned with natural resources issues as can be seen from the seven program areas of the Ministry, which include, for example, preservation of land, marine resources and the coast. In relation to water, BAPEDAL has started to move away from its previous preoccupation with water quality, particularly industrial water pollution, towards a greater concern for watershed management, non-point sources of
36
pollution and domestic waste.4 This leads to the questions first, whether BAPEDAL’s authority reflects the demands being placed on it and, second, whether its powers should be expanded. The range of central government environmental authority Table 9 indicates the authority granted to the Minister and BAPEDAL for the implementation of legal policy tools.5 For the purpose of comparison, theoretical grants of authority have been made under Models One and Two.
4 As
indicated in BAPEDAL’s Plan for the Clean River Program Year 2000-2005 Program Kali Bersih (PROKASIH) BAPEDAL November 1998 (Part 2.1 Visi PROKASIH). 5 The exception to the indications in the table is in relation to the management of the marine environment beyond 12 miles from the coastline in regard to which the Minister has power to regulate.
37
Table 9: Implementation of legal policy tools by central government environmental institutions Key: x – authority provided ~ - authority not provided ? – uncertain
Inventory making Classification Planning Implementation of management systems Environmental impact assessment Command and control mechanisms: Determination of standards - waste discharge standards - ambient standards Implementation of licensing and other approvals Imposition of compulsory audits Monitoring Voluntary mechanisms: Oversight of self-monitoring Oversight of voluntary audit Administrative enforcement Criminal enforcement Civil enforcement Oversight of community enforcement Oversight of dispute resolution outside the court system Imposition of obligations for restoration and rehabilitation Re-evaluation Provision of environmental information Oversight of rights for public participation Implementation of market-based instruments Taxes Fees Subsidies Tradable permits Deposit refunds
Model One
Model Two
Minister for the Environment
BAPEDAL
x x x x x
~ ~ x ~ ~
~ ~ x ~ ~
~ ~ x ? x
x x x x x
x x ~ ~ ~
x x ~ ~ ~
x x ? ? ?
x x x x x x ? x ? x ? ?
x x ? ~ ~ ? x ~ ~ x x ~
~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
? ? ? ? ? ? x ? ? x x ?
Table 9 shows that the model two is the institutional arrangement closest to the Indonesian one. However, it can also be seen that there is not a close match between the functions and authorities allocated to central government and the legal policy tools that could be at the disposal of a government authority responsible for environmental management. One reason for this is likely to be that reference to the legal policy tools will more likely be found in the legislation dealing with a particular aspect of environmental management, which in turn nominates the government body responsible for particular tasks. Another reason for the mismatch between legal policy tools and institutional authority may be accounted the drafting style in Indonesia. It often lacks precision in its descriptions of the components of environmental management. The following observations can be made about the prevailing ways of drafting the tasks, functions and authorities of institutions in Bahasa Indonesia.
38
1. There is a number of words used in Indonesian that do not correspond with legal policy tools, such as: penanggulangan – ward off, cope with, tackle pengendalian – control pengawasan – oversight. 2. There are other words with more than one meaning, which correlate with different regulatory functions, such as penyelengaraan – implementation, operation, organisation, coordination. 3. Other words have different meanings in different contexts, such as:6 Pengendalian - control This word may be used to convey restraint, prevention, standard setting, licensing, the provision of information and protection. Pengawasan – supervision, care, oversight, surveillance Used to convey the watching, close inspection, monitoring, investigation, control and assessment. Pemulihan – restore Used to convey the restoration or rehabilitation of environmental damage, to put in order again, to review, watch and observe. 4. There are also recurring phrases which do not have clear meanings such as the difference between: pengendalian – control; pelaksanaan pengendalian – implementation of control; and pengkoordinasi pelaksanaan pengendalian – coordination of the implementation of control. Coordination The structure of environmental law is such that to be effective the Ministry and BAPEDAL must rely on the implementation of environmental protection by the sectors and the regions. The role of both the Ministry and BAPEDAL is essentially one of coordination. Thus a closer look at what is envisaged within the coordination role is warranted. Tables 10 and 11 below list the functions allocated to the Minister and BAPEDAL which could be described as coordination tasks.
6 This aspect of legal drafting is discussed at Chapter 5.2 in relation of Act No. 23 of 1997 regarding Environmental Management
(Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) (UU23/97).
39
Table 10: Coordination functions of the Minister for the Environment
Determining guidelines for minimal standards of service to be adopted by district government Composing macro-national plans Fostering and oversight of the autonomy process including the provision of guidelines Training Determining guidelines for the management and protection of natural resources; Arranging international agreements and commitments Determining standards for licensing in the regions Determining national information policy Determining accreditation in the environmental service sector Determining guidelines for the control of natural resources and conservation Regulation of the management of the environment in the use of marine resources beyond 12 miles from the coastline; Determination of environmental quality standards and determination of guidelines regarding environmental pollution Other authority in accordance with legislation, namely the giving of recommendations regarding change of land use zoning
Coordination within Coordination in Central Government the regions x x x x x
x x x
x x x
x x x x
x
x
x
x
Table 11: Coordination functions of BAPEDAL Determination of technical policy Strengthening and facilitating of community activities and the activities of regional governments Increasing institutional capacity and human resources Development of information systems and services and community relations
Coordination within Central Government x
x x
Coordination in the regions x x x x
Notably, there is, however, no definition of coordination. Experience in other countries has shown that where a coordinating environmental agency coexists with sectoral agencies, the definition of “coordination” must be very clear.7 In light of this experience it is suggested that there are three aspects of coordination that need to be addressed: leadership, lawmaking and enforcement. Leadership To effectively coordinate, leadership is required. Indeed, the list of areas of authority granted to the Minister for the Environment includes leadership. Environmental leadership within central government has, however, been problematic. The sharing of environmental responsibility has resulted in uncertainty as to which department has ultimate authority in relation to a particular aspect of environmental protection. Overlapping authority has also undermined the Ministry and BAPEDAL.8 It has often been said that it is 7 GTZ Technical Assistance in Environmental Law and Institutional Development in Environment – Focus, Methodology
and Resources GTZ 1998, Bonn at p.17. 8 A lack of cooperation from sectoral departments was found to be “a major bottleneck” for the Ministry and BAPEDAL according to a survey conducted by Otto JM, of central and regional government, industry, universities and NGOs. The survey results supported the view that sectoral Ministries are “reluctant to give up power” and in this regard the Department of Industry featured particularly strongly: Otto JM “Implementation of Environmental Law: Harmonisation, Environmental Management and Enforcement by the Courts, With References to Indonesia and the Netherlands”
40
difficult for the Ministry to obtain sufficient leverage and power, as prior to its establishment, environmental authority had been granted to sectoral ministries and this authority remains. Sectoral Ministries and regional governments are likely to consider the encouragement of investment and development as a priority that ranks above environmental protection. As stated by Santosa in regard to the Department of Industry: The task of boosting the growth of industries on the one hand, and controlling pollution on the other hand is often difficult to implement.9
Lawmaking The Environment Ministry has in some instances been able to influence the formulation of sectoral lawmaking. For example, the Minister for Industry included environmental provisions in the Industry Act 1984 and subsequent regulations. There are, however, no formal channels that require the approval of the Ministry or BAPEDAL prior to the promulgation of sectoral or regional laws and regulations. It is notable also, that neither the Ministry nor BAPEDAL has a complete collection of sectoral environmental laws and regulations or regional regulations. Enforcement An example of the difficulty faced by the State Minister for the Environment in coordination has been the implementation of environmental impact assessment by sectoral Ministries. In theory the decentralisation of the environmental impact assessment process encouraged the incorporation of environmental values into decision-making by sectoral agencies and devolved environmental decision making to the layer of government closest to the activities concerned. However, it also led to fragmentation and inconsistency in approach. For example, there was said to be considerable variation among sectoral ministries in central government in the extent to which they adopted assessment procedures. It was said that the extent to which AMDAL procedures applied depended on the type of project in question.10 Furthermore, where the AMDAL had been carried out by a sectoral agency, monitoring was irregular or non-existent.11 Now that responsibility for most AMDAL assessments has been transferred to the regions under regional autonomy, there is a possibility that similar problems will develop at the provincial and district level. More generally, as enforcement is the responsibility of the relevant sector, involvement in enforcement has been outside the scope of authority of both the Minister and BAPEDAL. The leadership role that has been allocated to the Minister is therefore somewhat limited. Experience in other countries has shown that where responsibilities and competencies overlap, conflicts tend to be created. For this reason, when sectoral agencies carry out environmental protection tasks it is crucial to make a clear distinction between the role of the sectoral agency and the enforcement agency. 12 This distinction has not been made in Indonesia.
Indonesian Journal of Environmental Law Vol II August 1997 pp.21-62 at p. 40 9 Santosa A, Analysis of Policies, Regulations, Programs and Institutions That Affect Industrial Pollution Prevention in Indonesia. Prepared by Indonesian Centre of Environmental Law (ICEL) Submitted to ASEAN Environmental Improvement Project 1994 at p.63. 10 Personal communication from source in BAPEDAL, November 1997 11 Sources in East Java BAPEDALDA and BAPEDAL Central Office, November 1997. 12 GTZ, Technical Assistance in Environmental Law and Institutional Development in Environment – Focus, Methodology and Resources GTZ 1998, Bonn at p.17.
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BUILDING ENVIRONMENTAL AUTHORITY WITHIN CENTRAL GOVERNMENT New responsibility regarding the regions A question that arises, taking into account past experience of fragmentation in environmental management, is whether central government responsibility should be strengthened and if so, how? Agenda 21 suggests independent regulation and monitoring at the national level.13 This is excluded by the current arrangements. Should the Ministry for the Environment be given wider responsibility? If not, how are environmental concerns to be prioritised over competing sectoral interests? Within regional autonomy, additional issues arise as to the central government’s role in securing accountability and fostering sound environmental management at the regional level. What power does the Ministry for the Environment have if, for example, the following were to occur? A regional government allows a development that is likely to damage a wetland following an inadequate environmental impact assessment. A regional government fails to prosecute the pollution of a major waterway from the disposal of tailings from a mine. There is a major air pollution problem from a power plant which is disturbing the local community but the regional government refuses to take action. Illegal logging is taking place with no enforcement action by the regional government. According to article 7 of PP 25/2000, the central government is authorised to take administrative action regarding a region in the event of “negligence and/or a violation of the enforcement of prevailing laws”. The implications of this provision are not entirely clear. The elucidation states that an administrative action shall be a warning, a rebuke or a cancellation of a policy of a regional head and a regional regulation. The elucidation does not provide the clarification that is needed in this regard. It does seem, however, that central government power falls short of being able to step in, to ensure that enforcement is carried out or that environmental obligations are complied with. Government Regulation No. 20 of 2001 regarding the Fostering and Oversight of the Execution of Regional Government (Peraturan Pemerintah No. 20 Tahun 2001 tentang Pembinaan Dan Pengawasan Atas Penyelenggaraan Pemerintahan Daerah) (PP 20/2001) introduces a concept of central government oversight and taking care of (penyelenggaraan) regional government. This is defined as “an activity that aims to guarantee that regional government is in accordance with the plan and provisions of existing legislation”. The oversight function can be delegated to a governor as a representative of central government (art 7(2). It is directed towards the passing of Perda, decisions of a governor or a mayor, decisions of the regional parliament and decisions of the leader of the regional parliament (art 8(a)) as well as the implementation of policy at the regional level (art 8(b)). Oversight pursuant to PP 20/2001 is, however, to be carried out by the Minister for Internal Affairs (or delegated to a governor) not the Minister for the Environment (art 9). In his/her capacity as representative of the President, the Minister for Internal Affairs is able to cancel a regional law or regulation that “conflicts with the general interest or a higher national law or other law” (art 10(1)). In relation to regional policy, the relevant Minister or authority is to coordinate with the Minister for Internal Affairs (art 12(1)). Central government is able to sanction regional government (art 16). Further provision in this regard is to be made 13 Chapter
18.12(o)(ii)
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by way of Presidential Decree (art 19). At present, therefore, it is not clear what action, if any, may be taken by the central government in relation to the kind of circumstances mentioned above. State of Environment Reporting (SoE) is an accountability mechanism that could be made available to the Minister for the Environment. A national law could provide that regional government must, at the end of each year, prepare a report as to the state of the environment in its area. The national law could also list the sectors that are to be included in the report. For example, the national law could require that the report include material regarding land, air, water, waste, ecosystem protection, biodiversity protection and endangered species protection. It could also require that particular reference be made to the formulation and implementation of management plans.14 The national law could also impose obligations on regional government to consult with the community in preparing the SoE report and to involve the community in monitoring changes to the environment. A difficulty in advocating a stronger role for the Ministry of the Environment is caused by the fact that responsibility for environmental management is allocated to central government as a whole rather than the Minister. The Ministry for the Environment is not the primary central government agency responsible for environmental management. This is evident from Act No. 23 of 1997 on Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) (UU 23/97). It states that: Natural resources are controlled by the state and are utilised for the greatest possible public welfare, and the arrangements thereof are determined by the Government (art 8(1))
It is the government, and not the Minister for the Environment that is to: regulate and develop policy; regulate the supply, allocation, use and management of the environment; and regulate legal actions and legal relations regarding natural resources (art 8(2)). Similarly, it is the government that determines national policy on environmental management and spatial management (art 9(1)). The Minister’s task is to coordinate the implementation of environmental management so that it is implemented in an “ integrated” fashion (art 11(1)). A powerful reason for giving the Minister for the Environment a stronger role in environmental management is that it is only the Minister for the Environment who is primarily concerned with the protection of the environment. To achieve this objective, UU 23/97 would need to be amended so as to allocate primary responsibility for environmental management to the Minister for the Environment rather than to the government as a whole. Should the Ministry and BAPEDAL be merged? For some time now, Indonesian environmental law experts have argued for a Ministry for the Environment that carries out not only the functions of the current Ministry but also of BAPEDAL.15 The reasons for the decision to institutionally separate the Environment Ministry and BAPEDAL are not self-evident. Effective leadership is likely to be assisted by the existence of a strong, united institution to serve the interest of
14 In
making this suggestion, reference has been made to the Local Government Act 1993 (NSW) section 428. S, “MENLH-BAPEDAL si ‘Macam Ompong’” (The toothless tiger) Ozon, Juni 2000 and Wijoyo S, “Mengintip Kopiah Presiden” Ozon August 2000 p.19, Prof., Dr Rangkuti SS, has been calling for a Ministry of the Environment and Spatial Planning since the 1990, for example, Rangkuti SS, “Tentang Wewenang Penuh Menteri LH Dan Penataan Ruang” Suara Pembaruan 20 November 1997. 15 Wijoyo
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environmental protection at the level of Central Government. Conversely, a divided Ministry and agency, conceivably weakens the Ministry in its role of influencing the activities of sectoral Ministries. Should the Ministry and/or BAPEDAL have departmental status? It has been stated that powers of both entities have been limited in the past by their non-departmental status. 16 The debate regarding the status of the Ministry and BAPEDAL may no longer be of great relevance in view of the devolution of power under regional autonomy. Departmental ministries are now only authorised to set guidelines for the management and protection of natural resources in their field of operation and to determine criteria and standards for arranging activities: Presidential Decree No. 102 of 2001 regarding the Position, Task, Function, Authority, Organisation and Working Arrangements of Departments (Keputusan Presiden Republik Indonesia No. 102 Tahun 2001 tentang Kedudukan, Tugas, Fungsi, Kewenangan, Susunan Organisasi, Dan Tata Kerja Departemen). Even if BAPEDAL were to be given departmental status, a further obstacle has been created by the fact that the regional environmental management agencies, the BAPEDALDAs, have not been established under the Minister for the Environment but are under the authority of the Minister for Internal Affairs. Thus apart from four BAPEDAL offices that have been established in the regions17 the BAPEDALDAs are not structurally related to BAPEDAL. RESPONSIBILITY FOR ENVIRONMENTAL MANAGEMENT WITHIN REGIONAL GOVERNMENT The legal basis for the establishment of Regional Environmental Impact Management Agencies (Badan Pengendalian Dampak Lingkungan Daerah) (BAPEDALDA) is found in the following laws and regulations: 1. Government Regulation No. 6 of 1988 regarding the Coordination of Vertical Regional Agencies (Peraturan Pemerintah No. 6 Tahun 1988 tentang Koordinasi Kegiatan Instansi Vertikal di Daerah) 2. Decree of the Minister for Internal Affairs No. 98 of 1996 regarding Regional Environmental Impact Management Agencies (Keputusan Menteri Dalam Negeri No.98 Tahun 1996 tentang Pedoman Pembentukan, Organisasi Dan Tatakerja Badan Pengendalian Dampak Lingkungan Daerah. 3. Instruction of the Minister for Internal Affairs No. 11 of 1997 regarding Guidelines on the Implementation of Decree of the Minister for Internal Affairs No. 98 of 1996 regarding Regional Environmental Impact Management Agencies (Instruksi Menteri Dalam Negeri No. 11 Tahun 1997 tentang Petunjuk Pelaksanaan Keputusan Menteri Dalam Negeri No. 98 Tahun 1996 tentang Pedoman Pembentukan, Organisasi Dan Tatakerja Badan Pengendalian Dampak Lingkungan Daerah)
16 ibid 17 Pursuant
to the Decision of the Head of BAPEDAL No. 19 of 1999 regarding the Organisation and Administration of BAPEDAL Wilayah (Keputusan Kepala Badan Pengendalian Dampak Lingkungan No.: Kep-19 Tahun 1999 Tentang Organisasi dan Tata Kerja Badan Pengendalian Dampak Lingkungan Wilayah) it was considered that there was a need to establish BAPEDAL Wilayah (BAPEDALWil) to implement tasks and functions of BAPEDAL in the regions. Each BAPEDALWil is responsible to the head of BAPEDAL (art 1). Their functions include coordination and leadership in executing technical policy and surveillance in environmental management in the wilayah (art 2(a)). They have been established in Pekanbaru, Denpasar, Jakarta and Ujung Pandang. Their future is uncertain.
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4. Act No. 22 of 1999 regarding Regional Government (Undang-undang No. 22 Tahun 1999 tentang Pemerintah Daerah) 5. Government Regulation No. 84 of 2000 regarding Guidelines for the Organisation of Regional Infrastructure (Peraturan Pemerintah No.84 Tahun 2000 tentang Pedoman Organisasi Perangkat Daerah) 6. Government Regulation No. 20 of 2001 regarding the Fostering and Oversight of Regional Government (Peraturan Pemerintah No. 20 Tahun 2001 tentang Pembinaan dan Pengawasan atas Penyelengaraan Pemerintah Daerah) Simplified institutional arrangements under regional autonomy Regional autonomy has significantly simplified overlapping arrangements between central and regional government. In the previous system central government ministries had “deconcentrated” departments (Kepala Kantor Wilayah (Kanwil)) at the provincial level and in some cases the Kanwil had a sub-branch at the district (or sub district) level (Kantor Departemen (Kandep)). Parallel to this line structure, regional governments had their own sectoral services or departments (Dinas) that replicated the structure of central government ministries. The Ministry of Internal Affairs, and its two directorates carried out inter-agency coordination at the regional level: Directorate General of Public Administration and Regional Autonomy (Direktor Jenderal Pekerjaan Umum dan Otonomi Daerah) (DJPUOD) and Directorate General of Regional Development (Bangda). The system of coordination between the deconcentrated departments and the regional sectors services was set out in Government Regulation No. 6 of 1988 regarding the Coordination of Vertical Regional Agencies (Peraturan Pemerintah No. 6 Tahun 1988 tentang Koordinasi Kegiatan Instansi Vertikal di Daerah). However, the proliferation of sectoral institutions and their overlapping functions made interagency coordination difficult. As a result of regional autonomy, all Kanwil have become the responsibility of the province and the district respectively.18 This has significantly streamlined institutional relations at the regional level in most sectors. In relation to the Ministry for the Environment, however, apart from four provincial BAPEDALDA established as BAPEDALWIL,19 there is no direct relationship between the Ministry for the Environment or BAPEDAL and environmental agencies established at the regional level. Therefore, the streamlining effect mentioned above does not have a direct impact on the establishment of environmental institutions at the regional level although it does significantly alter the context in which the BAPEDALDA operate. The function and tasks of the BAPEDALDA BAPEDALDA have been established in the regions pursuant to the Decree of the Minister for Internal Affairs No. 98 of 1996 regarding Regional Environmental Impact Monitoring Boards (Keputusan Menteri Dalam Negeri No. 98 Tahun 1996 tentang Pedoman Pembentukan, Organisasi dan Tata Kerja Badan Pengendalian Dampak Lingkungan Daerah) (“Decision of the Minister of Internal Affairs 98/1996”). This instrument provides the legal basis to the functions and tasks of the BAPEDALDA. 18 With the exceptions for defence and security, foreign affairs, monetary and fiscal policies, the judiciary and religious
affairs 19 Decision of the Head of BAPEDAL No. 136 of 1995 regarding the Organisation and System of Work of Regional BAPEDAL (Keputusan Kepala Bapedal No. 136 Tahun 1995 tentang Organisasi dan tata kerja Bapedal Wilayah)
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In mid-2001 it was stated that BAPEDALDAs have been established in 28 provinces and 149 districts.20 The BAPEDALDAs have been created pursuant to Ministerial Instruction of the Minister for Internal Affairs No. 11 of 1997 regarding Guidelines on the Implementation of Decree of the Minister for Internal Affairs No. 98 of 1996 regarding Regional Environmental Impact Management Agencies (Instruksi Menteri Dalam Negeri No. 11 Tahun 1997 tentang Petunjuk Pelaksanaan Keputusan Menteri Dalam Negeri No. 98 Tahun 1996 tentang Pedoman Pembentukan, Organisasi Dan Tatakerja Badan Pengendalian Dampak Lingkungan Daerah). The Ministerial instruction was addressed to governors and mayors stating that the Environment Bureau (Biro Bina Lingkungan Hidup) was to be disbanded and its tasks integrated into the BAPEDALDA. Organisational models Two organisational models have been established for the BAPEDALDA, the minimum and maximum model. Although there is a difference between the internal organisational structures, there is no difference between the tasks allocated to each model.21 The choice between which model is to be established is based on the result of the application of a point scoring system. Points are awarded for:
the size of the region
the size of the population
the number of districts/sub-district in the region
the extent of environmental damage
the level of environmental pollution
the level of damage to ecosystems
the size of the population affected by environmental damage
the regional income
the number of qualified environmental employees in the region
the number of research centres and laboratories in the region
the status of offices and buildings
other special criteria.
20 Kelembagaan
Pengelolaan Lingkungan Hidup Di Era Otonomi Daerah BAPEDAL Juni 2001 at p.15. Provincial level, BAPEDALDA maximum model contains divisions concerned with the Expansion of Capacity and AMDAL which are not treated as separate divisions in the minimal model. At the district level, the BAPEDALDA maximum model contains an additional section for AMDAL. This appears to be a structural distinction only, as the tasks of each model are the same. 21 The
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Comparison of the functions and tasks of BAPEDALDAs established at the provincial and district level A summary of the functions and tasks of BAPEDALDAs established at the provincial and district level is contained in Table 12 below. Functions that are comparable are placed within the same row so as to assist a comparison between the two levels of government. Table 12: Functions and tasks of the provincial and district BAPEDALDA PROVINCIAL BAPEDALDA
DISTRICT BAPEDALDA
Art 5(a) Formulation of operational policy for the prevention and handling of pollution environmental damage restoration of environmental quality Art 5(b) Coordination of the implementation of prevention and handling of pollution environmental damage restoration of environmental quality
Art 47(a) Control of environmental impact through prevention and handling of pollution environmental damage Art 47(c) Implementation of the restoration of environmental quality
Art 5(c) Expansion of the institution building program Increasing institutional capacity for the control environmental impact Art 5(d) Establishing the technical aspects of prevention and handling of pollution environmental damage restoration of environmental quality Art 5(e) Establishment and technical control of Environmental Impact Assessment (AMDAL) Art 5(f) Carrying out oversight of the control of environmental impact and damage
Art 47(d) Technical control of the implementation of Environmental Impact Assessment (AMDAL) Art 47(b) Oversight of sources and activities that cause pollution and environmental damage
Art 5(g) Secretarial tasks Art 5(h) Other tasks from the governor
Oversight of the implementation of AMDAL Art 47(c) Implementing the preservation of environmental quality Art 47(d) Application and oversight of RKL and RPL Art 47(e) Application and expansion of environmental information Art 47(f) Assisting and increasing the role of the community Art 47(g) Secretarial tasks Art 47(h) Other tasks from the mayor
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PROVINCIAL BAPEDALDAS Operational tasks It can be seen from Table 12 that the provincial BAPEDALDA has not been granted a strong regulatory role. It has a clearly defined function in the formulation of environmental policy and in the establishment of the technical aspects of environmental management. It has also been given a coordination role and responsibility for institutional strengthening. The oversight function expressed as “oversight of the control of environmental impact and damage” would appear to refer to oversight of activities undertaken by other government bodies and therefore indicates an essentially non-operational role. The operational aspect of the BAPEDALDA at the provincial level relates to the establishment and technical control of environmental impact assessment (pembinaan dan pengendalian teknis Analisis Mengenai Dampak Lingkungan). This role is in keeping with the AMDAL Commission Guidelines, which list the sorts of enterprises that are to be assessed by each level of AMDAL Commission (arts 1 (4), (5) & (6)) Regional commissions set up at the provincial and district level are now handling the bulk of the AMDAL assessments. Coordination An important aspect of the authority of the Provincial BAPEDALDA is coordination (art 5(b)). In the field of oversight and control there is reference to coordination of:
control of pollution (art 15(d) & 37(c))
the control of environmental damage (art 15(e) & 37(d))
the licensing waste disposal (art 15(f) & 37(e))
In the field of monitoring and restoration there is reference to coordination of:
implementing monitoring (art 19(b)) & 41(b))
implementing restoration (art 19 (c)) & 41(c))
The exact nature of the coordinative task is not, however, clearly established and is open to interpretation. Enforcement The legal sub-department in the secretariat of the Provincial BAPEDALDA is tasked with “the preparation of material and the implementation of administrative enforcement” (art 12(2) & 24(d)). Identical authority has been granted to the district BAPEDALDA. Therefore, the enforcement functions of the provincial and district BAPEDALDA overlap. It is also not clear whether this provision is intended to refer to the preparation of material for a criminal prosecution, as distinct from the imposition of administrative sanctions, or whether the preparation of material is only in relation to administrative sanctions. Perda concerning Provincial BAPEDALDA The organisation of Provincial BAPEDALDA is to be determined by provincial Perda. They become operative after approval by the Minister for Internal Affairs (art 90(1)).
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Yogyakarta In Yogyakarta, Provincial Regulation DIY No. 14 of 1998 regarding the Formation of BAPEDALDA (Perturan Daerah Propinsi DIY No. 14 Tahun 1998 Pembentukan Badan Pengendalian Lingkungan Hidup Propinsi DIY) establishes the Yogyakarta BAPEDALDA. It states that the BAPEDALDA operates under and is responsible to the governor (art 3(1)), and it is to function as an aid to the governor through building and coordinating environmental management as well as the control of environmental impact (art 4). The tasks of BAPEDALDA Yogyakarta are set out as follows (art 5): (a) Formulation of policy for the prevention and tackling of pollution, environmental destruction and the environmental restoration; (b) Coordination of the implementation of the prevention and tackling of pollution, environmental destruction and environmental restoration; (c) Expansion of the institutional program and the capacity to control environmental impact; (d) Implementing the technical aspect of the prevention and tackling of pollution, environmental destruction and environmental restoration; (e) Construction and technical control of AMDAL; (f) Oversight of the implementation of the control of environmental impact and destruction of the environment; and (g) Composing the program to control environmental impact, to build the administrative system and to implement administrative enforcement. A subsequent regulation, Government Regulation No. 15 of 1998 regarding the Organisation and Work Program of BAPEDALDA Yogyakarta (Perturan Daerah Propinsi DIY No. 15 Tahun 1998 Organisasi dan Tata Kerja Badan Pendendalian Dampak Lingkungan Daerah Propinsi DIY) sets out the structure of the BAPEDALDA and the various functions of the BAPEDAL officers. It indicates the activities that can be undertaken by the BAPEDALDA. Implementation (pelaksana) is described as “the oversight, building and coordination of the restraint of environmental impact” (art 10). It includes “the making of operational policy and oversight of AMDAL, expansion of capacity, coordination of the implementation of pollution control and control of environmental damage and the coordination of licensing” (art 11). East Java The Yogyakarta Perda may be compared with the Provincial Regulation of East Java No. 9 of 1997 regarding the Organisation and Work Program of BAPEDALDA (Peraturan Daerah Propinsi Daerah Tingkat Jawa Timur No. 9 of 1997 tentang Organisasi Dan Tata Kerja Badan Pengendalian Dampak Lingkungan Daerah Propinsi Daerah Tingkat 1). This Perda states that that the East Java BAPEDALDA is to coordinate pollution control, the control of environmental damage and the licensing liquid waste disposal (art 20). The legal section in the secretariat has the task of administrative enforcement (art 10(3)). Thus it can be seen that the functions of each BAPEDALDA are essentially the same. Licensing by Provincial BAPEDALDAs The role of the East Java BAPEDALDA regarding licensing appears to be limited. Decree of the Head of the East Java BAPEDALDA No. 17 of 1999 on Technical Guidelines on the Tasks of Sub-Divisions and Sections within the BAPEDALDA states that the Department of Supervision and Control of Water and Oceans is to “implement technical policies in the control of water resources, marine and coastal pollution” including the “implementation of wastewater quality standards for industries” (art 10(1) (b)). The Supervision and Control of Licensing section is to supervise and control environmental management 49
aspects of licenses issued by the sectors (art 10(4)b) which shows that environmental measures are to be contained in licenses issued by the sectors rather than the BAPEDALDA itself. Similarly, in relation to hazardous and toxic waste (bahan berbahaya dan beracun (B3)), the role of BAPEDALDA is stated as “the gathering of information for the formulation of licensing policies such as recommendations regarding recycling, temporary licences for the storage of solid waste which contains B3”, and “the coordination of licensing agencies related to wastewater discharges from industrial, domestic and other fields” (art 10(4)a). A subsequent East Java Perda, however, seems to allocate a stronger operational role to the Provincial BAPEDALDA. Provincial Regulation of East Java Number 5 of 2000 regarding the Control of Water Pollution (Peraturan Daerah Propinsi Jawa Timur No. 5 Tahun 2000 Tentang Pengendalian Pencemaran Air) gives authority to the Head of the BAPEDALDA for licensing the disposal of liquid waste (art 7). It is in this regard that there appears to be a difference in conception of the functions of the Yogyakarta BAPEDELDA and the East Java BAPEDALDA. The extent of this difference in practice is an aspect that needs further analysis. Enforcement by Provincial BAPEDALDAs Authority for enforcement may be clarified at the provincial level, depending on whether or not a Perda has been passed dealing with enforcement. For example, the Yogyakarta Perda 3/97 states that investigating officers are to carry out criminal investigation. Civil investigation officers can also carry out investigation (art 18). The investigating authority is to (art 19): receive reports concerning criminal actions, take the first investigative steps, order cessation of activities, install a sign identifying the suspect, seize documents and things, take samples and photographs, call people for questioning, obtain the assistance of experts to assist with the investigation and to cease the investigation if it is found that there is insufficient evidence or the action does not amount to a criminal action or any other action that is provided for by the law more generally.
Thus it would seem that the provincial investigating authority is able to carry out administrative enforcement as well as prepare evidence to be used in criminal enforcement. DISTRICT BAPEDALDAS Table 12 shows that the district BAPEDALDA has a stronger operational role than the provincial BAPEDALDA. It is not, however, tasked with:
policy making
capacity building
the establishment of the technical aspects of the prevention and management of pollution, environmental damage or environmental restoration
coordination.
It has a more direct function in actually controlling environmental impact through the prevention and handling of pollution and environmental damage. It is also to implement environmental restoration. The district BAPEDALDA, unlike the provincial BAPEDALDA has been described as an operational environment
50
management agency.22 It is tasked with implementing the preservation of environmental quality, the application and oversight of RKL and RPL and environmental information services as well as increasing the role of the community in environmental management. In relation to oversight and control, the district BAPEDALDA is tasked with preventing and handling water, air and ground pollution (arts 57(a) & 75(b)). It is also tasked with preventing and handling environmental damage (art 57(c) & 75(c)), and the oversight and control of licensing the disposal of waste (art 57(d) & 75(d)). Its role in relation to monitoring is direct, in that it is tasked with implementing monitoring and restoring environmental quality. In relation to enforcement, the secretariat of the district BAPEDALDA is to have a legal section that is tasked with “preparing material and performing processes with regard to the enforcement of environmental law and regulations” (arts 54(2) & 68(2)). Again, it is not clear whether this provision is intended to refer to the preparation of material for a criminal prosecution, as distinct from the imposition of administrative sanctions, or whether the preparation of material is solely in relation to administrative sanctions. This will need to be clarified at the district level. Pasuruan District BAPEDALDA East Java the Pasuruan District BAPEDALDA has passed District Government Regulation Number 11 of 2000 regarding the Organisational Formation and Rule of Operation for BAPEDALDA (Peraturan Daerah Kabupaten Pasuruan No. 11 Tahun 2000 tentang Pembentukan Organisasi Dan Tata Kerja BAPEDALDA). This Perda essentially duplicates the functions set out in the Decree of the Minister for Internal Affairs No. 98 of 1996 regarding Regional Environmental Impact Management Agencies. In relation to supervision and control the emphasis is on implementation (art 17). A subsection within the BAPEDALDA is established to deal with RKL and RPL and is tasked with licensing and the management and/or disposal of waste (art 19(3)c). It also states that the district BAPEDALDA is to supervise and control licensing (art 19(3)d). RELATIONS BETWEEN THE PROVINCIAL AND DISTRICT BAPEDALDA Table 12 gives shows the division of responsibility between the Provincial and District BAPADALDA. The information contained in the table needs to be supplemented by an understanding of the division of government authority as set out in the regional autonomy law. However, the demarcation lines are not always clear in relation to environmental management. This could negatively affect the relations between Provincial and District BAPEDALDA. Pursuant to Act No. 22 of 1999 regarding Regional Government (Undang-undang No. 22 Tahun 1999 tentang Pemerintah Daerah), provincial government has been granted authority for fields of government that straddle districts (UU 22/99 art 9(1)). This authority includes authority that is not able to be implemented by district level government (art 9(2)) or which is specifically referred by central government to the governor as the representative of central government (UU 22/99 art 9(3)). In relation to the sea, the province has environmental responsibility for sea between 4 and 12 nautical miles from the coast, including the following (UU 22/99 art 10(2) a-d): a. exploration, exploitation, conservation, and the management of the wealth of the sea b. administration 22 Asian
Development Bank, The Role and Function of BAPEDALDA Working Paper No.4 in Master Plan for Capacity Building in BAPEDALDA (ADB TA No.2598-INO) August 1997
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c. spatial planning d. law enforcement of regulations made by the province or referred by the central government for enforcement. Clarification of provincial authority is provided in Regulation Number 25 of 2000 Regarding the Authority of Government and Authority of the Regions in Regional Autonomy (Peraturan Permerintah Republik Indonesia No. 25 Tahun 2000 Tentang Kewenangan Pemerintah Dan Kewenangan Propinsi Sebagai Daerah Otonomi)(PP 25/2000). In relation to the environment, provinces have authority for (art 3(5)): (a) (b) (c) (d)
control of the environment spanning districts regulation of environmental management of the sea between 4 to 12 nautical miles from the coast the security and preservation of water resources straddling districts environmental impact assessment for activities that have the potential for negative impact upon the wider community and which are located in more than one district (e) oversight of the implementation of conservation the environment that straddles districts (f) the determination of provincial environmental quality standards based on national environmental quality standards (art 3(5)16.) District government is to manage the balance of government authority that has not been allocated to the central government or provincial government (UU 22/1999 art 11(1)). In relation to the sea, district government has authority for one third of the provincial maritime zone, that is, the area of sea from the inter-tidal zone up to 4 nautical miles from the coast (art 10(3)). As a field of government, environmental management must be carried out at the district level (art 11(2)). As discussed in Chapter Three, the regional autonomy law lacks clarify in establishing the respective environmental law making powers of the province and district. This uncertainty is present also in the scope of authority of the provincial and district BAPEDALDAs. The provinces potentially hold significant areas of environmental authority depending upon how particular aspects of environmental management are viewed. For example, in relation to water resources, whether the district or provincial government has authority is likely to depend on the definition of the boundaries of a watershed or a sensitive ecosystem. As a result, potentially there areas of provincial authority that go beyond the functions allocated to the provincial BAPEDALDA by the Decision of the Minister of Internal Affairs 98/1996. LICENSING, MONITORING AND ENFORCEMENT – WHO IS RESPONSIBLE AT THE REGIONAL LEVEL? In relation to the district BAPEDALDA, the outline of the tasks stresses control, implementation, application and prevention. These terms, however, are not defined. As a result there is scope for interpretation in relation to regulatory tools such as licensing, monitoring and enforcement. Licensing At present environmental measures are to be contained within sectoral licences, the primary sectoral licence being the business and activity licence. This licence is to incorporate either the environmental impact assessment (where there is a large and important impact on the environment) or the environmental management and monitoring plans. It is not clear whether the BAPEDALDA is authorised to issue separate environmental licences. A comparison of the situation in Yogyakarta and East Java shows that different
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approaches are being made to licensing. Whilst in East Java licensing is carried out by BAPEDALDA itself, in Yogyakarta a coordination team formed by the head of BAPEDALDA carries out licensing.23 Monitoring In Yogyakarta, monitoring obligations are essentially self-monitoring obligations. The Decisions of the governor, which determines the discharge standards for the health, industrial, and tourism sectors also establish an obligation upon enterprises to send a monitoring report at least every 3 months to the governor, BAPEDALDA and the mayor.24 Oversight of the implementation of the regulation is stated to be by the Biro Bina Lingkungan Hidup (now replaced by BAPEDALDA) (art 7(1)). Mayors are stated to be able to carry out monitoring and in so doing can report to the Biro and the governor (art 7(2) & (3)). Notably there is no obligation upon mayors or any other authority to directly carry out monitoring. In relation to ambient standards, the Decision of the Governor DIY No.214/KPTS/1991 regarding Environmental Standards for the Special Region of Yogyakarta (Keputusan Gubernur Kepala DIY No.214/KPTS/1991 Baku Mutu Lingkungan Daerah Untuk Wilayah Propinsi Daerah Istimewa Yogyakarta) sets up ambient standards for water bodies, the sea, air, noise, liquid waste and the emission of gas and air particles. It states that oversight is to be carried out by “the instansi tasked with managing the environment” (art 15(1)). Thus, no allocation to a particular government authority has been made. Enforcement As stated above, both the Provincial and District BAPEDALDA have been authorised to carry out enforcement, however, authority for criminal enforcement (as opposed to administrative enforcement) has not been clearly allocated at the national level. Even where it has been allocated at the provincial level, there is a tendency to rely on the initiative for enforcement being taken by the community. Neither at the national or regional level is there an allocation of responsibility to carry out direct enforcement activities. Indeed, enforcement is often dealt with in terms of the resolution of an environmental dispute rather than a regulatory enforcement action. This tendency can be seen in the procedure for managing environmental cases in Yogyakarta, as set out in the decision of the governor No. 267/KPTS/1998 regarding the Procedure for the Handling of Pollution and Environmental Cases (Keputusan Gubernur Kepala DIY No. 267/KPTS/1998 Prosedur Penganggulanggan Kasus Pencemaran Lingkungan Hidup Di Propinsi DIY).25 The process for enforcement as set out in the Decision of the Governor relies on the initiative being taken by a group or individual who files a report with an instansi or the police (art 5(1)). There is a reliance on the accusers to provide the basic information regarding the alleged violation.26 The agency that receives the complaint is to note all the information 23 In Yogyakarta, the Decision of the Governor No. 32 of 2000 regarding Technical Directions for the Implementation of
Regional Regulation No. 3 of 1997 regarding the Control of the Disposal of Liquid Waste (Keputusan Gubernur Kepala DIY No. 32 Tahun 2000 tentang Tetunjuk Teknis Pelaksanaan Peraturan Daerah Propinsi DIY No. 3 Tahun 1997 Tentang Pendendalian Pembuangan Limbah Cair) states that the application for a license must contain certain features both technical and administrative (art 2(2)) and it is to follow a certain formula (art 3(1)(a)). Whether or not the features exist, is to be determined by a team formed by the head of BAPEDALDA (art 2(3)). If they exist then the license is to be given within 45 working days (art 3(2)(a)) and if they do not exist a response is to be given within 30 days (art 3(2)(b)). 24 E.g. Decision of the governor Yogyakarta No. 65 of 1999 regarding Liquid Waste Quality Standards for the Health Sector (Keputusan Gubernur Kepala DIY No.65 Tahun 1999 Baku Mutu Limbah Cair bagi Kegiatan Pelayanan Kesehatan Di Propinsi DIY) 25 Notably this legal instrument is not a legal instrument as it is not a Perda, it is therefore a non-binding guideline. 26 Each accuser must provide information regarding (art 5(3)):
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received (art 6(1)) and make a report to the mayor and the governor (art 6(2)). A meeting with the members of the Coordination Team for Environmental Pollution (Tim Koordinasi Penganggulangan Pencemaran Lingkungan Hidup (TKP2LH)) is to be held. It is the TKP2LH, which manages the situation (art 7(1). It can order an investigation (art 7(3)) but there is no obligation upon it to do so. Where an investigation is carried out by the TKP2LH, it is able to request help from the relevant instansi.27 At the conclusion, the TKP2LH is obliged to announce the findings of the investigation (art 9(6)). The conclusion of the investigation is to cover four aspects (art 13): (a) the party responsible for the pollution or environmental damage (b) the party that has suffered loss as a result (c) the relevant information (d) the relevant legal instrument. The governor’s Decision states that the dispute can proceed to adjudication through the courts or to resolution through mediation (art 14). Mediation can occur at the district or provincial level (art 15(1)). Mediation in relation to a compensation claim can occur at the sub-district level (art 15(2)). The responsive rather than proactive role of the TKP2LH is clear from the terms of the Letter of Decision of the Head of BAPEDALDA No. 188.4/544/TIM/99 regarding the form of the Coordination Team for the Resolution of Environmental Problems (Surat Keputusan Kepala BAPEDALDA Propinsi DIY No. 188.4/544/TIM/99 Pembentuk Tim Koordinasi Penyelesaian Permasalahan Lingkungan Hidup Propinsi DIY). This sets out the formation of the TKP2LH, its tasks and other aspects of its operation.28 The tasks are listed as: compilation of an inventory of media and other reports regarding environmental cases research and investigation into such reports planning actions to manage such cases coordination monitoring the resolution of cases and reporting the results to the governor through BAPEDALDA.
(a) (b) (c) (d) (e)
the identity of the accuser the source of the pollution the place where the pollution occurred the time when the pollution occurred the consequence of the pollution other information. 27 Before making the investigation, the mayor or governor are required to advise the responsible party and the people who made the complaint or a representative of the affected community. In carrying out the investigation TKP2LH are to give equal time to the complainant and the accused (art 9(1)). The taking of samples has to be witnessed by both parties (art 9(2)). The team is also able to take into account the social-economic and cultural situation of the surrounding area (art 9(5)). 28 It is formed by the governor and the Director is the Secretary of the Province. The head is the head of BAPEDALDA, the first chief is the head of oversight and control and the second chief is the head of monitoring and restoration in BAPEDAL, the general secretary is the secretary of BAPEDALDA, the first secretary is the head of the legal subdivision in BAPEDALDA, the second secretary is from the oversight and control section. The members of the team come from the provincial Attorney-General (Kejaksanaan Tinggi), the Provincial police and a large number of Dinas and Biro.
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TOWARDS AN INSTITUTIONAL MODEL FOR BAPEDALDAS Uncertainty regarding the institutional model The establishment of BAPEDALDAs has not taken a uniform institutional form and there is no particular model that is being followed across Indonesia. Uncertainty about the institutional form of the BAPEDALDA is likely to undermine its authority. Notably the Decree of the Minister for Internal Affairs No. 98 of 1996 does not address the form of the BAPEDALDA but is limited to a description of functions and tasks. Lack of clarity in the functions and tasks discussed above is likely to contribute to uncertainty as to the institutional form of the BAPEDALDA. A question arises as to whether there is a preferred institutional model for the BAPEDALDA? If so, should provision be made for the model at the level of central government? If so, should it be through the issuing of a law or a guideline? Alternatively, should the institutional form of the BAPEDALDA be a matter that is left to the regions to decide? Pursuant to Government Regulation No. 84 of 2000 regarding Guidelines for the Organisation of Regional Infrastructure (Peraturan Pemerintah No.84 Tahun 2000 tentang Pedoman Organisasi Perangkat Daerah), regional institutions consist of: (a) The regional secretariat (sekretariat daerah); (b) Agencies or departments (dinas); and (c) Technical organisations (lembaga teknis daerah). The choice for an environmental institution ranges between the following: (a) An agency (badan) or office (kantor) As a technical organization, an agency or office has a coordinating function and is responsible for the formulation of policy (art 1(l)). (b) A department (dinas) A department assists the head of a sector with the implementation of decentralised and deconcentrated power. It is able to formulate technical policy, issue licences, implement tasks, and provide services (art 4). Recommendations to date The issue of the institutional form of the BAPEDALDA has been raised in a BAPEDAL Discussion Paper entitled “The Organisation of the Management of the Environment in the Era of Regional Autonomy” (Kelembagaan Pengelolaan Lingkungan Hidup Di Era Otonomi Daerah BAPEDAL Juni 2001) in which the strengths and weaknesses of the badan and dinas have been stated as follows: Badan29 The strength of the badan is that it is not tied to any particular sector and is therefore “sector neutral.” It is adapted to playing a coordinating and integrating role using a multi-sectoral approach. It also has high status, being directly responsible to the head of government. The weakness of the badan lies in the fact that the cost of running a badan is non-recoverable. In addition, a badan is not able to form line agencies and is not able to carry out operational functions such licensing. 29 BAPEDAL
Kelembagaan Pengelolaan Lingkungan Hidup Di Era Otonomi Daerah Juni 2001 at pp.19-20.
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Dinas30 The strength of the dinas is that it is tied to activities within a specific sector of government, it is streamlined, and it is therefore likely to have lower operating costs. It also has the facility to offset operational costs by the receipt of income. In this regard, it is able to foster “efficiency and effectiveness.” It is also able to carry out operational tasks such as licensing. The weakness of the dinas is said to lie in the fact that it does not easily play a coordinative or integrative role and it is likely to have a sectoral bias. BAPEDAL has recommended that the badan be favoured over the dinas as the authority responsible for environmental management.31 Functions and tasks In determining the appropriate institutional structure, it would be useful to start with the functions and tasks that have been allocated to the BAPEDALDA at the provincial and district levels respectively. This involves clarifying the respective roles of the provincial and district BAPEDALDAs beyond descriptions of their regulatory functions, particularly in relation to the coordination and the regulatory functions. Overseas experience needs to be incorporated into the description of the functions and tasks of the BAPEDALDA. Experience in other countries is that where environmental agencies are allocated a coordinating function, the definition of “coordination” must be made very clear both concerning law making and concerning law enforcement. Overseas experience also supports the principle that an enforcement agency should be separate from sectoral agencies that also carry out environmental protection tasks. 32 A less clear cut issue is whether it is preferable for the agency that has enforcement power, to also have licensing authority. An argument in favour of the licensing body also being the enforcement body is that it avoids double handling and conserves human and financial resources. In regard to Provincial BAPEDALDAs uncertainty regarding the scope of provincial government law making powers as set out in PP 25/2000 needs to be clarified and is relevant to their scope of environmental authority more generally. Some questions that arise regarding the functions of the provincial BAPEDALDA include:
In relation to their policy making powers, should it be possible for provincial BAPEDALDA to pass a policy on issues such as land or management, coastal management or water resources management that becomes binding on district government where the issues involved clearly have regional implications? What should be their authority in relation to environmental management in bioregions that extend beyond the boundaries of a district or environmental concerns that have regional implications? How is the provincial BAPEDALDA to play a coordinating role in prevention and handling of pollution, environmental damage and the restoration of environmental quality? What is involved in the oversight of the control of environmental impact and damage in practical terms?
30 Ibid
at pp.21-23. basis of their recommendation is not fully explained. 32 GTZ, Technical Assistance in Environmental Law and Institutional Development in Environment – Focus, Methodology and Resources GTZ 1998, Bonn at p.17. 31 The
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Should provincial BAPEDALDAs have regulatory powers to directly carry out licensing, monitoring and enforcement, and if so, in what circumstances? In relation to environmental licensing, where a licensing system has not been introduced at the district level, should Provincial BAPEDALDA be able to issue environmental licences? Should this require prior agreement between the district and provincial BAPEDALDA? Should provincial BAPEDALDAs have enforcement powers, and if so, in what circumstances? What actions, if any, should be available to a provincial BAPEDALDA where a district government fails to impose administrative or criminal sanctions?
Some questions that arise in relation to the tasks that have been allocated to the district BAPEDALDA include:
To what extent does the District BAPEDALDA merely implement policy issued by central and regional government? What role should they play in institution building at the district level? What authority should the District BAPEDALDA have to coordinate sectoral activities that affect environmental management? What should this power actually involve? What is actually involved in the oversight of sources and activities that cause pollution and environmental damage? How is it envisaged that the District BAPEDALDA will implement and preserve environmental quality? What is meant by the application and oversight of AMDAL? What is meant by the application and oversight of RKL and RPL?
These questions identify some of the issues that need to be addressed in relation to both the functions and tasks of the BAPEDALDA and the institutional form they should take. In terms of sequencing, it would be appropriate to settle the tasks and functions and then decide on the institutional form. In regard to both institutional models under consideration for the district BAPEDALDAs there appear to be significant weaknesses. The major difficulty posed by the model preferred by BAPEDAL, namely the badan is its lack of operational authority. A key issue is the lack of direct licensing and enforcement power. Is there a way around the limitations of the current organizational models? Alternatives that could be discussed are: (a) to allow BAPEDALDAs to exist as a variation of the badan with authority to carry out operational functions; (b) to allow BAPEDALDAs to exist as a variation to the badan and be granted the authority to carry out enforcement and limited operational functions whilst leaving the licensing function with the sectoral dinas; or (c) to allow BAPEDALDA to be able to carry out the full range of regulatory activities that are needed for the management of the environment and be formed under a new type of regulatory institution that is tailored to this role.
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CONCLUSIONS AND RECOMMENDATIONS Further attention needs to be given to the allocation of authority for environmental management within central government as well as to the formulation of the essential powers and elements of authority to be held by regional environmental agencies. Environmental authority within central government Basic structural problems that have arisen in the past regarding competing sectoral interests in environmental management remain unresolved. Agenda 21 has suggested that there should be independent regulation and monitoring of environmental performance at the national level. This appears not to be possible given the devolution of central government power that has occurred under regional autonomy and the exclusion of most operational tasks from the authority of the Minister for the Environment and BAPEDAL. Discussion regarding environmental authority at the national level should be opened up. Questions that need to be debated are whether UU 23/97 should be revised so as to give the Minister primary responsibility for environmental management at the national level; whether the Ministry should have departmental status; whether the Ministry and BAPEDAL should be united; and whether the central authority should have powers to directly monitor and enforce environmental obligations? The government body that is tasked with coordination should also be the central repository of environmental information. The Ministry for the Environment should be the central repository of all laws, regulations, guidelines, studies, reports, publications, judicial decisions, environmental law journals and other materials relevant to the environment in Indonesia across the sectors and regions. The coordination role that has been granted to the Ministry needs to be clarified through the drafting of legal procedures to ensure that coordination between the various sectors of government takes place. These systems could include obligations to obtain the concurrence of the Minister for the Environment in sectoral decision-making that is likely to have a significant effect on the environment. Environmental authority within regional government The problems that have arisen at the national level are likely to be reproduced at the regional level unless further attention is given to clearly allocating authority for specific regulatory functions. This involves clarifying the respective roles of the provincial and district BAPEDALDAs beyond descriptions of their functions and tasks. It is also involves designing an institutional body that is able to carry out all required regulatory functions and, if necessary, forming a distinct, new form of regulatory authority to exist at the provincial and district level. Further consideration also needs to be given to the relationship between the provincial and district BAPEDALDAs. The components of coordination should be clarified through the drafting of procedures for law making, environmental decision-making and law enforcement at the provincial and district level.
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PART B – ENVIRONMENT PROTECTION LAW Part B will review the law that is most commonly recognized in Indonesia as environmental law. It includes legislation regarding:
protection and control the quality of environmental media (air and water) by controlling the substances that enter those media such as pollution, waste, and hazardous chemicals;
substances that pose a threat to the environment, namely wastes (both hazardous and nonhazardous) and non-waste material, such as industrial and agricultural chemicals; and
assessment of the likely environmental impact of new developments and measures to manage and monitor that impact.
The review will commence with a discussion of the constitutional protection for the environment and proceed to consider the framework statute: Act No. 23 of 1997 regarding Environmental Management. It will then go on to consider the arrangements for environmental assessment of new enterprises, including environmental impact assessment. Next, the legislation on water and air pollution will be considered. Finally, there will be a discussion of measures to control waste and brief mention of the management of industrial and agricultural chemicals.
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CHAPTER 5 – THE NATIONAL FRAMEWORK This chapter will discuss the adequacy of the Indonesian Constitution in providing a sound legal basis for rights and obligations to protect the environment. It will go on to critically review the primary environmental statute in Indonesia, Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 regarding Pengelolaan Lingkungan Hidup). CONSTITUTIONAL PROTECTION FOR THE ENVIRONMENT The Preamble The fourth paragraph of the preamble to the Constitution states that the Constitution aims to establish a Government in Indonesia, which shall “protect the whole of the Indonesian people and their entire native country.” Eminent legal scholars such as Koesnadi H., have interpreted this as providing a principle under which the Indonesian state has a responsibility for the protection of the human and environmental resources of Indonesia and an obligation to protect them. 1 The Preamble provides the basis for a more specific provision within the body of the Constitution for the protection and conservation of the environment. Article 33(3) The constitutional basis for the protection of Indonesia’s environment is provided by article 33(3). It states: Land and water and the natural resources therein shall be controlled by the state and shall be utilised for the greatest welfare of the people.
Article 33(3) is directed to ensuring that the benefits of the natural resources of Indonesia are to be enjoyed by the people generally, and not by minority interests. It is implicit in the article that the state has power to protect the land, water and natural resources from interference or damage that prevents them from being used for the greatest welfare of the people. In this way, article 33(3) gives the government considerable power to enact environmental law. However, it is questionable whether article 33(3) provides an adequate constitutional basis for management of the environment. Article 33(3) focuses not on the environment and its protection but on who shall benefit from the utilisation of the environment. It is conceivable that environmental protection will not always be for the greatest welfare of the people. For example, protection of an endangered species or a sensitive ecosystem will not always be justifiable in human welfare terms. Furthermore, there is no guidance as to how the environment is to be utilised for the greatest welfare of the people. This is completely within the state’s discretion. The human right to a clean and healthy environment A fundamental weakness in article 33(3) is that, whilst it conceives of environmental management as a duty of the state, it does not provide for the rights of the individual. In this regard, the Constitution has been out of step with developments worldwide over the last 30 years, which have acknowledged a human right to a clean and healthy environment.
1 Koesnadi
Hardjasoemantri, Environmental Legislation in Indonesia Gadjah Mada University Press, 3rd Ed, 1994 at p.4.
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This omission has been rectified by a recent amendment, which includes, amongst new human rights provisions, the right to a good and healthy environment (art 28H(1) UUD 1945 Amendment No.2 (18.8.2000)). The provision is in keeping with a number of international declarations and statements that recognise the connection between environmental protection and respect for human rights.2 It does not, however, go as far as constitutions which have granted a right to an ecologically balanced environment (for example, Brazil and Portugal mentioned below). Environmental duties The fundamental right to a good and healthy environment could be complemented by the imposition of a duty upon every citizen not to damage the environment or the country’s natural resources. This would strengthen the right to a good and healthy environment, which otherwise lacks direction and focus. State obligations New constitutions and amended constitutions in other countries could provide guidance for Indonesia as to how environmental protection could be extended by imposing a duty upon the state to implement environmental protection measures and to ensure sustainable use of resources.3 The new Brazilian Constitution states that: everybody has a right to an ecologically balanced environment, an asset for common use by the people, and essential to the wholesome quality of life. This imposes upon Public Authorities and the community the obligation to defend and preserve the environment for present and future generations. (article 225 of Chapter VI)
Similar provisions are to be found in the new Constitutions of Slovakia, Slovenia, Hungary, Poland and South Africa. Other states with explicit environmental rights provisions include Turkey and numerous Middle American, African and Arab states. In article 66 of the Constitution of Portugal, the role of the state has been specified. It states: 1. All have the right to a healthy and ecologically balanced human environment and the duty to protect it. 2. The state is obliged, through its agencies and by the appeal and support of popular initiatives: (a) to prevent and control pollution and its effects and harmful forms of erosion; (b) to organize territorial space so as to establish biologically stable zones; (c) to create and develop natural and recreational parks and reserves.....; and 2 Examples
of relevant international instruments include: The resolution of the UN General Assembly in 1968 which identified the relationship between the quality of the human environment and the enjoyment of basic rights - UNGA Resolution 2398 (XXII), 3 December 1968. The 1972 Stockholm Declaration which stated that "...both aspects of man's environment, the natural and the man-made, are essential to his wellbeing and to the enjoyment of basic rights - even the right to life itself", and that "…man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and wellbeing..." Declaration of the United Nations on the Human Environment (1972) 11 ILM 1416, Preamble and Principle 1. The resolution of the UN General Assembly in 1990 which declared that "all individuals are entitled to live in an environment adequate for their health and well-being” - UNGA Resolution 45/94, 14 December 1990. The United Nations Commission on Human Rights resolution in 1990, entitled "Human Rights and the Environment", which reaffirmed the relationship between preservation of the environment and the promotion of human rights - Resolution 1990/41, 6 March 1990. The declaration from the Rio Conference on Environment and Development in 1992 related the rights issue to the broader issue of sustainable development as expressed in Principle 1: "Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature." 3 For the summary of environmental provisions in national constitutions the writer is indebted to an article by Prof. Klaus Bosselmann, University of Auckland entitled Human Rights and the Environment: Redefining Fundamental Principles.
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(d) to promote rational enjoyment of natural resources while safeguarding their capacity for renewal and ecological stability.
In a similar approach, many EU member states including Germany, the Netherlands, Sweden, Finland and Greece have recently imposed constitutional duties and obligations to provide environmentally sound conditions. The 1993 amendment to the German Constitution included a new article that defines care for conditions of life and for future generations as a state obligation. Article 20a provides: In fulfilling its responsibility for future generations the State shall protect the natural basis of life within the framework of the constitutional order through legislative means, executive measures and judicial review, in conformity with legislation and legal rules.
Constitutional amendments to accommodate environmental responsibilities have also been introduced in France, Belgium and Luxembourg. Why is it important to have environmental rights, duties and obligations in the Constitution? As the Constitution is the highest source of law in the legal hierarchy, the presence of an environmental right, duty or obligation in the Constitution gives it particular weight and authority across society. For example, if article 33(3) were to be amended or replaced in keeping with developments overseas, for example, by using the Brazilian or Portuguese Constitution as a model, it would likely ensure a greater sense of responsibility within government in its efforts to manage the environment. At the same time it would give greater authority to environmental protection generally. Furthermore, constitutional rights and duties act as fundamental principles that have to be taken into account by all branches of government when they create, interpret or apply the ordinary law. Administrative authorities and the judiciary have to interpret and apply the law in the light of constitutional guarantees. A constitutional obligation also means that the legislature must make sure that legislation in different fields of the law gives full effect to the obligation.4 ACT NO. 23 OF 1997 REGARDING ENVIRONMENTAL MANAGEMENT UNDANG-UNDANG NO. 23 TAHUN 1997 TENTANG PENGELOLAAN LINGKUNGAN HIDUP Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) (UU 23/97) is the framework for environmental law in Indonesia. This section will review the provisions UU 23/97 other than provisions relating to environmental impact assessment, which will be covered in Chapter 6 and the enforcement provisions, which will be dealt with in Chapters 21, 22 and 23.5 SCOPE OF THE ACT
4 The strength of this argument is weakened by the fact that Indonesia does not have a Constitutional Court.
As a result there is no opportunity for judicial review of legislation to test its constitutionality. 5 Particular assistance has been received in the review of UU23/97 from Rangkuti S, Hukum Lingkungan Dan Kebijaksanaan Lingkungan Nasional 2nd Ed Airlangga University Press Surabaya 2000 pp.181-199 and also the papers from a seminar held in Surabaya Proseding Semiloka Nasional Tentang Revisi UUPLH Surabaya, 23 October 1999, Airlannga University; and Proseding Kursus Perizinan Lingkungan Sebagai Instrumen Pencegahan Pencemaran Lingkungan, Surabaya 6-7 June 2000, Airlangga University.
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The scope of UU 23/97 as expressed in the preamble is to apply to “the implementation of environmental management in the scheme of environmentally sustainable development”. The environment is defined as: the spatial unity of all materials, forces, situations, and living creatures, including humans and their behaviour, which influences the continuance of life and welfare of humans and other living creatures (art 1(1))
Environmental management is defined as: an integrated effort to preserve environmental functions which covers planning policy, exploitation, development, maintenance, reparation, supervision and control of the environment (art 1(2))
Therefore UU 23/97 potentially includes within its reach all aspects of environmental management including the control of waste and other forms of pollution, the exploitation of natural resources and preservation of the natural and built environment. As will be shown, however, it is quite limited in its substance. BASIS, OBJECTIVES AND TARGETS There are no clearly drafted objectives in the UU 23/97. Rather under a heading of “Basis, Objectives and Targets” the following is stated (art 3): Environmental management which is performed with a principle of national responsibility, a principle of sustainability and a principle of exploitation that aims to create environmentally sustainable development in the framework of the holistic development of the Indonesian human and the development of the Indonesian community in its entirety, which is faithful and devoted to God the Almighty.
This is followed by a list of targets which include: a. b. c. d. e. f.
achievement of harmony and balance between humans and the environment; formation of the Indonesian person as an environmental being disposed toward and acting to protect and foster the environment; the guaranteeing of the interests of present and future generations; achievement of preservation of environmental functions; prudent control of the exploitation of resources; and protection of the Unitary Indonesian Republic against impacts of business and/or activity outside the national region which causes environmental pollution and damage.
Because of the way these provisions have been drafted, it is difficult to assess whether or not the targets are being achieved. DEFINITIONS Definitions found in UU 23/97 UU 23/97 contains definitions of the environment, environmental management, environmentally sustainable development, ecosystem, preservation of environmental functions, environmental supportive capacity, preservation of environmental supportive capacity, carrying capacity, preservation of carrying capacity, resources, environmental quality standards, environmental pollution, standard environmental damage criteria, conservation of natural resources, waste, hazardous and toxic material, hazardous and toxic waste, environmental dispute, environmental impact, environmental impact analysis, environmental organisation, environmental audit, person and Minister.
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(i) The environment The environment is defined as (art 1(1)): the spatial unity of all materials, forces, situations, and living creatures, including humans and their behaviour, which influences the continuance of life and welfare of humans and other living creatures.
It is important that any definition of ‘environment’ be sufficiently broad so that nothing is arbitrarily excluded. Concepts such as influence on the “continuance of life,” however, lack definition as life may persist, even in environmentally degraded conditions. The “welfare of humans” is essentially a subjective assessment, as is any assessment of the welfare of “other living creatures.” The definition also does not clearly accommodate those parts of the environment that may only have an aesthetic dimension, or which have an intrinsic value unrelated to the needs of society. Whilst “the environment” should be defined in sufficiently wide terms to provide the maximum authority for environmental management, a more objective definition would consist of an identification of the component parts of the environment, such as natural resources and organisms, organic or inorganic matter, facets of the environment, human made aspects and natural ecosystems. By way of comparison, the environment could be defined as the components of the earth, including:6 (a) land, air and water and (b) any layer of the atmosphere, and (c) any organic or inorganic matter and any living organism, and (d) human-made or modified structures and areas, and includes interacting natural ecosystems that include components referred to in paragraphs (a)- (c).
(ii) Environmental pollution Environmental pollution is defined in UU 23/97 as (art 1(12)): the entry or the entering into of living creatures, substances, energy, and/or other components into the environment by human activities with the result that its quality decreases to a certain level which causes the environment not be able to function in accordance with its allocation.
Questions that arise in regard to this definition are: a. What is environmental quality and how is it to be established? b. How is the certain level that causes the environment to not function to be ascertained? c. What is the allocation of the environmental function? (iii))Preservation of environmental functions There is a definition of “preservation of environmental functions” (art 1(5)), which may assist in c. above, in which it is said to be “a set of efforts to maintain the continued supportive and carrying capacities of the environment”. Therefore environmental pollution is made up of living creatures, substances, energy and/or other components that interfere with the supporting and carrying capacities of the environment. “Environmental supportive capacity” (art 1(6)) is defined the capacity of the environment to support humans and other living creatures. (iv) Environmental damage 6 Protection
of the Environment Operations Act 1997 (NSW) - Dictionary
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Environmental damage defined as (art 1(14)): action which gives rise to direct or indirect changes in the physical and/or biological characteristics of the environment which causes the environment to no longer be able to function to support sustainable development.
This definition is remains vague as it relies on the definition of sustainable development, which as discussed above suffers from vagueness. To establish environmental damage under UU 23/97, it would have to be established that sustainable development has been interfered with in that the quality of human life has been affected by a particular action. It may not always be immediately apparent that capability, welfare or quality of life is disturbed, for example, if human health effects are cumulative. An alternative definition of environmental damage could be: any direct or indirect alteration of the environment that has the effect of degrading the environment, and without limiting the generality of the above, includes any act or omission that results in pollution. 7
Another alternative would be to use the concept of “environmental harm” which could be simply defined as “any adverse effect or potential adverse effect on the environment or an environmental value”.8 (v) Standard environmental damage criteria The definition section of UU 23/97 contains a definition of “standard environmental damage criteria” which is stated to be the “threshold limits of physical and/or biological changes in the environment which can be measured” (art 1(13)) If standard environmental damage criteria are used to establish that environmental damage has occurred, it could overcome difficulties in establishing environmental damage mentioned above, however, no direct link is made between the definition of environmental damage and standard environmental damage criteria. It may be that environmental damage criteria include water quality standards, however, it is not clear whether that was the legislative intent. Definitions omitted from UU 23/97 (a) Indonesian terms There are a number of specifically Indonesian terms that commonly arise in the drafting of environmental laws and regulations but which remain undefined. These words and their English translation include: penataan – ordering, structuring pemeliharaan – the taking care of, keeping and maintenance pelestarian – preservation perlindungan – protection konservasi – conservation. pengawasan – supervision, care, oversight, surveillance pengendalian – control, management, constraint pengembangan – the developing of pemanfaatan - exploitation For example, UU 23/97 defines environmental management as (art 1(2)): 7 Contaminated 8 Environmental
Land Management Act, 1998 (NSW) Protection Act 1993 (SA) and Environmental Management and Pollution Control Act 1994 (Tasm)
section 5.
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An integrated effort to preserve (melestarikan) environmental functions which covers planning policy (kebijaksanaan penataan), exploitation (pemanfaatan), development (pengembangan), maintenance (pemeliharaan), reparation (pemulihan), supervision (pengawasan) and control of the environment (pengendalian lingkungan hidup).
A number of these terms are imprecisely used and overlap with each other. This is described below with reference to an internal document prepared by the Yogyakarta BAPEDALDA as an explanation of current usage. (i) Penataan – ordering, structuring This word includes within its current usage the following: the putting into order, regulation and organisation (mengatur), direction (mengarahkan), control (menerbitkan), sorting and classifying (memilahkan).
Penataan has meanings which overlap with the term pendendalian – control. A confusion in meaning is exacerbated by the structure of UU 23/97, which includes in Chapter Six entitled Environmental Compliance Requirements (Persyaratan Penaatan Lingkungan Hidup) articles relating to licensing, oversight, administrative sanctions and environmental audits. (ii) Pemeliharaan – the taking care of, keeping, maintenance This word includes within its current usage: conservation and preservation (kelestarian), making durable (mengawetkan), the protection (melindungi) and the making fertile and prospering (menyuburkan).
There is an overlap in meaning between this term and pengawasan and pengendalian. (iii) Pelestarian - preservation, konservasi - conservation and perlindungi - protection As defined in UU 23/97, preservation (pelestarian) of environmental supportive capacity is: a set of efforts to protect (melindungi) environmental viability against pressures for change and/or negative impacts that arise because of an activity, so that it can continue to support the life of humans and other living creatures (art 1(7))
This approach to defining preservation ignores the specific function that may be played by leaving an environment intact, so that it is entirely separated from external impact. Indeed the meanings of protection and preservation are distinct, as whilst preservation refers to the goal of keeping an environment unchanged, protection involves an element of judgment as to what level of impact will be sufficiently significant to lead to change. Conservation (konservasi) of natural resources as defined in UU 23/97 as: The management of non-renewable natural resources to ensure their prudent utilisation, and renewable resources to ensure their continued availability through maintaining and improving quality levels and diversity.
This definition is difficult to apply as it involves a value judgment as to what is prudent (secara kebijakan). There also seems to be overlapping meaning between conservation (konservasi) and preservation (pelestarian).
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Other difficulties caused by the reference to preservation within UU 23/97 arise from the structure of the Act, which includes in Chapter Five on the Preservation of Environmental Functions (Pelestarian Fungsi Lingkungan Hidup) articles relating to the compliance with environmental standards, prohibitions, environmental impact assessment and the management of waste. These provisions overlap with the meaning of pengendalian referred to below. (iv) Pengendalian – control, constraint Pengendalian is used to convey: restraint, prevention and prohibition (mencegah), the making of standards, licensing, the provision of information, the protection, the reduction of risk, and saving and rescuing (menyelamatkan).
(v) Pengawasan – supervision, care, oversight, surveillance Pengawasan is used to convey the watching, close inspect, monitoring (mengamati), investigation, control and inspection (memeriksa), the assessment (menilai) and monitoring (meninjau). However, as mentioned above, UU 23/97 includes pengawasan within penataan. It is notable that none of the abovementioned terms encompass enforcement (penegakan hukum). It is not clear where the different forms of law enforcement (administrative, civil and criminal) are included. (b) Environmental law terminology Undefined environmental terms which require definition include the following:
Environment protection licence Business and/or activity licence9 Environmental audit Natural resources Spatial management Environmental Impact Assessment10 Information about the environment Large impact on the environment (in relation to enforcement) Class action Losses on the life of the community.
EXPRESSION OF RIGHTS UU 23/97 establishes certain rights in terms of statement of principle. Rights are granted to every person (art 5): 9 Examples of this licence are given in the elucidation to article 18(1) as being mining licences and industry licences.
It does not give a definition of a business and/or activity licence. 10 A description rather than a definition of environmental impact analysis is contained in the elucidation to article 15 (1). There it states that an Environmental Impact Analysis is on the one hand is part of a feasibility study for implementing a plan for a business and/or activity, and on the other hand is a condition which must be fulfilled to receive a licence to carry out a business and/or activity. As will be mentioned in the section on AMDAL, in practice a serious omission in the implementation of AMDAL has been that it is not treated as being part of the feasibility study but is often not considered until after construction has commenced. The role and function of the AMDAL needs to be set out more clearly in the UU23/97.
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(i) To an environment which is good and healthy (ii) To environmental information (iii) To play a role in the scheme of environmental management in accordance with applicable laws and regulations. A right to a good and healthy environment This right is clearly very broad and lacks specificity. Questions arise as to how to define a “good” and “healthy” environment. Further elaboration is required to enable implementation. A right to environmental information There is no specific obligation imposed upon government requiring disclosure of information on the environment, rather the issue of the openness of environmental information has been provided for as a right. The elucidation of article 5(2) states that environmental information to which the community is entitled can be: in the form of data, explanation or other information involved in environmental management which according to its nature and goal is such that it is open to be known by the community, such as environmental impact assessment documents, reports and evaluations on results of environmental monitoring, both monitoring of compliance and monitoring of environmental quality changes, and spatial management ordering plans.
Currently there is no Freedom of Information Act in Indonesia that would guarantee access to information on the environment. Such an Act could set out how a right to request information is to be exercised, and establish a corresponding duty on the part of public authorities to provide information. It could then set out the scope of the duty and define the key concepts such as ‘environmental information’ and ‘public authority’. Exceptions to the right to information would need to be formulated and the time specified within which the information must be supplied along with the costs to be charged.11 The drafting of such an Act would not, however, be a replacement for building into environmental decisionmaking the right to be informed that a decision will be made, the right to be given access to draft decision documents and to obtain information as to decisions or policies made, as well as general environmental information that is generated through the administration of the environment, such as the details of licences or the ambient levels of environmental quality. A right to participate The elucidation of UU 23/97 states that the right to play a role includes participation in taking decisions, inter alia, by submitting objections and by hearings or other methods that may be stipulated in laws and regulations. It is suggested that this role is carried out, for example, in the process of evaluation environmental impact statements or environmental policy formulation. Implementation is stated to be based on the principle of openness. It goes on to state that with openness the possibility is allowed for a
11 These suggestions are contained in the EC Directive 90/313 on Access to Environmental Information adopted by
the Council of Ministers in June 1990 as described by Kimber C “Understanding Access to Environmental Information: the European Experience” Jewell T and Steele J, Law in Environmental Decision-making National, European, and International Perspectives Clarendon Press Oxford 1998 pp.139-160 at pp.146-147.
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community to join in thinking about and providing views and considerations in decision making in the environmental field.12 This provision is limited, however, by the ambiguity of the qualification in article 5(3), which grants the right “in accordance with applicable laws and regulations”. This qualification could have one of two meanings: firstly, that participation is a right only where provided for by other regulations, thus, for example, requiring specific mention in water pollution regulations or secondly, that the right public participation is to acknowledged in all situations despite a lack of procedural detail.13 In any event, to give any real meaning to a right to participate, there needs to be specific procedural rules on such matters as the holding of community consultations, the form of the consultation, the provision of representatives for the local community, the account to be taken of community submissions as well as community rights to access to information. These rules need to be embedded in the procedures for decision-making. GENERAL OBLIGATIONS AND DUTIES Obligations imposed on citizens An obligation is imposed upon every person to “preserve the continuity of environmental functions and protect and combat environmental pollution and damage” (art 6(1)). There is no elaboration as to how that obligation is to be enforced and it therefore amounts simply to statement of principle that may be taken into account by decision makers and weighed against other considerations. A further obligation is imposed upon every person carrying out a business or other activity to “provide true and accurate information regarding environmental management” (art 6(2)). As will be discussed in the provisions in relation to enforcement, no clear relationship is made between this provision and any form of enforcement. Obligations imposed upon government In relation to public participation it is said that the community has “the same and the broadest possible opportunity to play a role in environmental management” (art 7(1)). This is not expressed as a specific obligation upon government and neither is it clear whether it is intended to create an obligation upon the community. The implementation is stated to be carried out by a number of activities that also do not appear to apply particularly to government or citizens, namely: a. increasing independence, community empowerment, and partnership b. giving growth to community capability an initiative c. increasing community responsiveness in carrying out social supervision d. providing suggestions e. conveying information and/or conveying reports. In comparison, obligations are imposed on government to do certain things (art 10). These things are, however, expressed in vague and general terms. They are obligations to: 12
Openness is a principle that should be included in the principles of the Act rather than being contained in the elucidation. 13 Santosa MA and Fjellstrom K, “The Indonesian Environmental Management Act 1997” Asian Pacific Journal of Environmental Law Vol 2, Issues 3 and 4 1997 pp.366-372 at p. 367.
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(a) form, give growth to, develop and increase awareness and responsibility of decision makers in environmental management. (b) form, give growth to, develop and increase awareness of community rights and responsibilities in environmental management (c) form, give growth to, develop and increase partnership between the community, business and the government in the effort to preserve environmental supportive capacity and carrying capacity (d) develop and apply national policy for environmental management which ensures the maintaining of environmental supportive capacity (e) develop and apply instruments of a pre-emptive, preventative and proactive nature in the effort to prevent decreases in environmental supportive capacity and carrying capacity (f) exploit and develop environmentally sound technology (g) carry out research and development in the environmental field (h) provide environmental information and disseminate it to the community (i) give awards to meritorious people or foundations in the environmental field. AUTHORITIES AND RESPONSIBILITIES Authority and responsibility to control natural resources The grant of an authority is a simple statement as to who is authorised to do what. The imposition of a responsibility implies accountability and so it goes beyond mere authorisation. Responsibility is created by the imposition of obligations. Article 8(1) grants authority to control natural resources to the state. This is coupled with an allocation of responsibility that states that natural resources are to be “utilized for the greatest possible public welfare and that arrangements thereof are to be determined by the government”. Thus a broadly defined responsibility to use natural resources for the greatest possible public welfare is therefore imposed and dispersed across the state. The Act goes on to explain that to implement its authority the government (art 8(2)) (a) regulates and develops policy; (b) regulates the supply, allocation, use [and] management of the environment, and the reuse of natural resources, including genetic resources; (c) regulates legal actions and legal relations between persons and/or other legal subjects as well as legal actions regarding natural resources and artificial resources, including genetic resources; (d) controls activities which have social impact; (e) develops a funding system for efforts to preserve environmental functions. These provisions amount to no more than statements of principle as to what the government as a whole does. It is interesting to note that they are expressed as descriptions of what is occurring at present and do not impose any detailed responsibilities or obligations. In relation to (c) which gives authority to government to regulate legal actions and legal relations (mengatur perbuatan hukum dan hubungan hukum antara orang dan/atau subyek hukum lainnya), the phrase mengatur perbuatan hukum does not convey any clear meaning. Also this authority seems to be postponed so that it is to be carried out by regulation rather than in the Act itself. In relation to (d) the activities that are being referred to are not clear. In relation to (e) which presumably is directed towards the development of market-based instruments, no obligation is imposed upon government to establish a funding system to preserve environmental functions, rather it is assumed that this is happening. It falls short of a statement in support of the polluter-paysprinciple.
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The UU 23/97 goes on to state that the government makes national policy on environmental management and spatial management (art 9(1)) It is not clear how that authority differs from the authority expressed in article 8(1), however, in article 9(1) it is stated that the making of policy is done “whilst always taking into account religious values, culture and traditions and the living norms of the community.” This phasing does not actually impose limits upon government, as the expression is very general. Integration and coordination The balance of article 9 refers to the “integrated” approach to environmental management. The Minister for the Environment is given authority for coordinating national environmental management policy is the provision that states that the “integratedness of planning and implementation of national environmental management policy….is coordinated by the Minister” (art 9(4)). “Integrated” (terpadu), “integratedness” (keterpaduan) and “integrated manner” (secara terpadu) are words that arise frequently in environmental law in Indonesia and for this reason they require special attention. Environmental management is defined as: an integrated (terpadu) effort to preserve environmental functions which covers planning policy, exploitation, development, maintenance, reparation, supervision and control of the environment.
Environmental management is to be performed in an integrated manner (secara terpadu) by government institutions in accordance with their respective fields of tasks and responsibilities, the public, and other agents of development while taking into account the integratedness (keterpaduan) of planning and implementation of environmental management policy (art 9(2)) and …in an integrated (terpadu) manner with spatial management, protection of non-biological natural resources, protection of artificial resources, conservation of biological natural resources and their ecosystems, cultural preservation, biodiversity and climate change (art 9(3))
It is also stated that the government is to create integratedness (keterpaduan) and harmony in the implementation of national policy regarding environmental management through delegation of environmental authority to local Central Government Offices and giving a role to Level II Government to assist the Central Government (article 12(1)). The use of the words integrated” and “integratedness” cited above lack any clear meaning distinguishable from coordination. The words integration and coordination seem to be used interchangeably, however, the two meanings are logically separate. Coordination involves formal avenues of communication for specific ends. Effective coordination requires the definition of roles, responsibilities, rights, duties and obligations in relation to communication of information. It is at this point that clear and unambiguous statutory language is required. As stated by Lasswel, to clarify what is meant by communication one can ask the question “Who Says What In Which Channel To Whom With What Effect?”14 Whilst this series of questions relates to communication in general, in regard to systems of coordination, the communicator, the message, the media, the communication and the effect of the communication all need to be specified. Thus, coordination is necessary to achieve integration, and it is a recurring recommendation in this report that there be more effective drafting of legal procedures to ensure coordination in different aspects of environmental management. 14 Lasswel H quoted by Basuki J, in “Komunikasi Dan Informasi Lingkungan Hidup” Buletin Medali Edisi IX May
Vol.IV, 1999 pp.9-10 at p.9
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SPECIFIC PROHIBITIONS, OBLIGATIONS, AND PERMISSIONS REGARDING CITIZENS Prohibitions A number of prohibitions are imposed on citizens as follows: (a) A general prohibition is imposed upon every business and/or activity against breaching environmental quality standards and standard criteria for environmental damage (art 14(1)). Detail as to environmental quality standards, the prevention, and coping with pollution and the restoration of carrying capacity are stated to be regulated by government regulation (art 14(2)). The determination of the criteria for assessing environmental damage, the prevention of, and handling of damage and the restoration of its supportive capacity are to be provided for by government regulation (art 14(3)). (b) A prohibition is imposed upon every person against disposing of waste to an environmental medium without a licensing decision (art 20(1)). (c) A prohibition is imposed upon every person against disposing of waste which originates from outside Indonesian territory to an Indonesian environmental medium (art 20(2)). (d) Another prohibition is imposed upon every person against the importation of hazardous and toxic wastes (art 21). Obligations A number of obligations are imposed on citizens as follows: (a) Environmental Impact Assessment: An obligation is imposed upon every plan of a business and/or activity that possibility can give rise to a large and important impact on the environment, to possess an environmental impact analysis (AMDAL) (art 15(1)). (b) An obligation is imposed upon every party responsible for a business or activity to carry out management of wastes produced by their business and/or activity (art 16(1)). This is to be the subject of further regulation (art 16(3)). (c) An obligation is imposed upon every party responsible for a business and/or activity to carry out the management of hazardous and toxic materials (art 17(1)). This is to include the production, transportation, distribution, storage, use, and disposal of hazardous and toxic materials (art 17(2)). This is to be the subject of further regulation (art 17(3)). (d) An obligation is imposed upon every business and/or activity that gives rise to a large and important impact on the environment to possess an environmental impact statement to obtain a licence to conduct a business or activity (art 18(1)). It is not clear from the body of the Act exactly who is the subject of this obligation, however, the elucidation of article 18(3) states that approval of the AMDAL must be submitted with the application for the business or activity licence. (e) It is stated that waste disposal to an environmental medium as provided in article 20(1) may only be carried out at a disposal site, which is determined by the Minister (art 20(4)). Implementing regulations are to be provided (art 20(5)). (f) An obligation is imposed upon parties responsible for a business and/or activity to meet the requests of the government in relation to their supervisory role (art 24(2)). In this regard, each supervisor must show proof of identity and be attentive to the prevailing situation and conditions (art 24(3)). Permissions granted to citizens
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(a) Permission is granted to the responsible party for a business and/or activity to transfer the responsibility for waste management to another party (art 16(2)). This is also to be the subject of further regulation (art 16(3)). (b) An implied permission exists within licensing to the effect that pollution may be discharged if a licence is obtained. SPECIFIC OBLIGATIONS IMPOSED UPON GOVERNMENT There is an obligation upon government mentioned in the elucidation of article 18(3): to assert the obligations associated with compliance with stipulations in the environmental management field; and where an AMDAL has been carried out, to include and clearly formulate the environmental management plan and environmental monitoring plan in the licence. Obligations are imposed upon government to take into account the following aspects in considering an application for a business and/or activity licence (art 19(1): a. Spatial management plans b. Public opinion c. Considerations and recommendations of authorised officials who are involved with such business or activity. A further obligation is imposed to make a licence public (art 19(2)). The elucidation of this section states that the public disclosure of a licences allows public participation, for those “who have not used the opportunities available in the objections procedure, hearing, and other aspects of the licensing decision making process.” The Act, however, makes no provision for procedures in the licensing decision making process. Licensing The provisions regarding licensing are very bare. Sectoral authority for licensing is granted to “the official who has authority in accordance with laws and regulations” to consider an application for a business or activity licence (art 18(2)). Authority is also allocated to the Minister for the Environment in relation to licensing the “disposal of waste to an environmental medium” (art 20(3)). Monitoring It is stated that the Minister carries out supervision of the compliance with environmental law (art 22(1)). This is not expressed as an obligation but as a principle. The Minister is empowered to appoint officials with authority to carry out supervision (art 22(2)), including the transfer of this authority to district government (art 22(3)). To carry out supervision, authority is granted to such officials to conduct monitoring, request an explanation, make copies of documents and/or take notes, enter certain places, take samples, inspect equipment, inspect installations and/or transportation equipment, and request explanations (art 24). There is no provision regarding monitoring that does not necessarily relate to “supervision of compliance”. Thus, monitoring to assess the condition of the environment and patterns of change is not expressly provided for in the Act.
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There is a statement of principle regarding voluntary audit (audit sukarela) to the effect that the government encourages the party responsible for a business and/or activity to conduct an environmental audit (art 28). There is, however, no specific reference to the adoption of other voluntary compliance mechanisms, for example, in monitoring. CONCLUSIONS AND RECOMMENDATIONS The Constitution Constitutional provisions should be strengthened in line with developments in other countries where state obligations to protect the environment have been imposed alongside environmental rights to a healthy and ecologically balanced environment. Statutory drafting The UU 23/97 suffers from a use of language that is vague, lacking in definition, and at times overly complex. It contains definitions, principles, and statements of policy with very little rule formation.15 It lacks detail and postpones law making on many important aspects of environmental management. It needs to be completely redrafted in clear and precise language with greater rule formation. Regional autonomy Many articles in UU 23/97 are out of step with regional autonomy. The wide powers granted to central government in UU 23/97 have been reduced by regional autonomy and the authority that has been granted to the provincial government through UU 23/97 is in some respects broader than that allowable under regional autonomy. Amendments to UU 23/97 are also required to accommodate the new responsibility of district government in environmental management. UU 23/97 needs to be totally redrafted to take into account the rearrangement of government authority and in this regard, the following recommendations are made: Central Government (a) article 8(1) In so far as UU 23/97 states that “the government” is to determine the arrangements for the control of natural resources, it needs to be specified exactly what areas of responsibility fall within each layer of government. (b) article 8(2) In relation to natural resources management, the government is said to “regulate,” “control,” and “develop a funding system”. These areas of responsibility will need to be amended, if the central government no longer has power to regulate and control. (c) article 9 (1) This article states that “the government” is to determine “national policy.” The power of government to issue policy has been described as “policy regarding national planning and development in a macro sense” (UU 22/99 (art 7(2)). The environmental policy making power of central government would seem to need further clarification. (d) article 9 (2) This article states that the “performance” of environmental management is to be carried out by “government institutions”. Again, it needs to be made more specific as to which government institutions, and which levels of government, in view of regional autonomy. 15 See
Chapter Two in relation to rule formation.
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(e) article 9(4) The Minister is to “coordinate” the implementation of environmental management policy. The Minister is not able to “coordinate” environmental policy at the regional level and an additional coordinative agency needs to be appointed under the national law. (f) article 10 This article sets out certain tasks that the government must carry out without any distinction as to the level of government. Many of these tasks still fall within the scope of central government authority. Some tasks, however, fall outside the limits imposed by regional autonomy, such as the application of environmental management policy (art 10 (d)). (g) article 12(1) This article gives authority to government to “delegate” certain environmental authority to district government Offices and to “give a role” to district government to “assist” central government in the implementation of environmental management. This provision conflicts with regional autonomy. (h) article 13(1) This article gives authority to central government to “transfer” part of its affairs to district government. This provision also conflicts with regional autonomy. References to further government regulation Many articles of UU 23/97 state that further provision is to be made the subject of government regulation. This is expressed without any indication of which level of government is to issue the regulation and what form the regulation is to take. Ministerial licensing powers Article 20(3) gives licensing powers to the Minister regarding the disposal of waste. This power does not conform to the limited central government powers under regional autonomy and neither does the power of the Minister to determine sites for the disposal of waste (art 20(4)). Ministerial supervisory powers Article 22 (1) states that the Minister “supervises compliance” with laws and regulations in the environmental field. This needs clarification, as does the power to appoint officials with authority to carry out supervision (art. 22(2)). Provincial Government The authority granted to provincial government is, in some respects, wider than that granted under regional autonomy through the operation of PP 25/2000. UU 23/97 will need to be amended including the following: (a) Administrative sanctions and to carry out safeguarding, mitigating and/or remedial measures as stated in article 25(1) no longer automatically falls within provincial authority. (b) The transfer of authority to the head of district government mentioned in article 25(2) is longer necessary. (c) The submission of a proposal by the region to the “authorised official” head for the revocation of a business or activity licence as provided for in article 27(3) is no longer applicable, as the responsibility for issuing business or activity licences has moved to district level government. District Government The district now manages the balance of environmental authority that has not been granted to central or provincial government and amendments to UU 23/97 are required to accommodate this change. The 75
extent to which the national act should detail activities to be carried out at the district level is a matter for consideration within the context of regional autonomy.16 Content of UU 23/97 It can be seen that UU 23/97 has a broad and non-specific content. A comparison can be made with other countries where there are separate national statutes on subject matters relating to the environment. For example, in Germany the following national laws are found:
Act felating to the Assessment of Environmental Impact 1990 Environment Information Act 1994 Noise, Vibration and Other Similar Phenomena Act 1990 Act on the Protection Against Hazardous Substances 1994 Act on Managing Water Resources 1996 Act pertaining to Charges Levied for the Discharge of Waste Water into Waters 1994 Conservation of Nature and Landscapes Act 1998.
Another example is the USA which has national laws on the following: National Environmental Protection Act 1969 Marine Protection, Research and Sanctuaries Act, 1972 Coastal Zone Management Act, 1972 Renewable Resources Planning Act, 1974 Endangered Species Act, 1973 National Parks and Recreation Act, 1978 Wilderness Act 1964 Safe Drinking Water Act, 1974 Federal Insecticide, Fungicide and Rodenticide Toxic Substances Control Act, 1976 Resource Conservation and Recovery Act, 1976 Federal Land Policy and Management Act, 1976 National Forest Management Act, 1976 Clean Air Act, Amendments 1977 Clean Water Act, 1977 Surface Mining Control and Reclamation Act, 1977 The scope of UU 23/97 is very wide. The definition of the environment is very broad and is drafted to apply to government as a whole. However, in relation to its more detailed provisions, UU 23/97 is more limited. The prohibitions and obligations imposed by the UU 23/97, relate to environmental impact assessment, the management of toxic materials, the control of pollution and management of the disposal of waste through licensing, monitoring and enforcement. The areas of environmental management that have been dealt with by regulations issued by central government are environmental impact assessment, some aspects of waste management (particularly hazardous waste management), water pollution, air pollution, ozone depleting substances, climate change, sea pollution and some aspects of coastal management (namely the Program Pantai Lestari). 16 See
Chapters Three and Four in this regard.
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UU 23/97 is not so readily applicable to the so-called “green issues” such as the management of natural resources (water, land, soil, ecosystems, biodiversity and endangered species). It also does not make specific linkages between environmental management and land use planning that relate, for example, to soil management, river basin management, and coastal management. In relation to the authorities and obligations imposed upon government, there is no provision for environmental planning such as inventory making, classifications and planning. Thus, there is no direct link between environmental planning and environmental management. Neither does the Act make specific reference to activities such as restoration and rehabilitation of damaged environments or re-evaluation of environmental management. Given the limited scope of the UU 23/97, consideration needs to be given to additional statutes at the national level. Policymaking No procedural provisions are established within the UU 23/97 for the making of environmental policy as distinct from the creation of environmental law. This is particularly relevant in view of decentralisation and the coordinating role that policy making can play in relations between the different levels of government and between government sectors. Relationships between central, provincial and district government policymaking need to be established.17 Definitions Definitions are drafted in an unscientific and frequently vague manner. A number of terms frequently used in Indonesian environmental laws are undefined. There are also terms from environmental management that need defining. A concerted effort is needed to introduce a comprehensive set of definitions to include the standard environmental management terms and also specifically Indonesian terminology. Principles There are a number of environmental principles that are widely accepted as being part of the framework of environmental management that are absent from UU 23/97 including the following: (i) Pollution prevention This principle is designed not only to control pollution and to remove damage but also to prevent potential negative environmental impacts from human activities from arising at all, if possible at the source and by means of risk reduction.18 It is also known as clean production, which involves identifying the source of pollution in the production process and eliminating it from the process or substituting it with a less environmentally damaging method of production. (ii) Polluter-pays principle This is a principle that can be understood as a fundamental reallocation of cost and serves to avoid distortions in the economy. In stating the principle, it needs to be clarified that where allocation of cost is not possible because the polluter cannot be identified, the cost must be borne by the community. Whilst it 17 See
Chapter Two in relation to mechanisms which may be adopted to ensure that policy is implemented.
18 The only reference to preventive action is in article 10 (e) in relation to what the government must do in the scheme
of environmental management, which states that the government must develop and apply instruments of a preemptive, preventative and proactive nature in an effort to prevent decreases in environmental supportive and carrying capacity. In the elucidation it is stated that “preventive action” is at the level of implementation through compliance with waste quality standards and/or economic instruments. An example is given of the development and application of environmentally sound technology, and the application of environmental insurance and environmental audits which are carried out voluntarily.
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is referred to in the elucidation of the provisions regarding the payment of compensation for causing environmental damage (art 34(1), it is not set out as a principle that influences the approach to environmental management in a broad sense. (iii) Precautionary Principle The Declaration of Principles at the United Nations Conference on Environment and Development19 stated the precautionary principle as follows: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for delaying cost-effective measures to prevent environmental degradation.
(iv) The integration of pollution controls This approach comes from the Bruntland Report, which criticises the traditional compartmentalised approach to pollution control, which has involved a media specific approach and failed to take into account the cross-media effects of pollution. It proposes a holistic approach to pollution control in relation to the various media (water, air and land) and to the structuring of institutions. (v) The role of indigenous people. There is mention of the taking into account of culture and traditions in the making of government policy (art 9). In the elucidation this is explained as the giving of “rational and proportional attention” towards living traditional communities. There is no explicit acknowledgement, however, of the role of indigenous people in environmental management. The role of indigenous people, has been stated in the Declaration of Principles at the United Nations Conference on Environment and Development, is as follows:20 Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture, and interests and enable their effective participation in the achievement of sustainable development.
Good governance There is nothing in UU 23/97 that relates to good environmental governance. Good governance is a term that is inherently subjective, however, there is a broad consensus that it supports popular participation in governmental decision-making, the protection of human rights and the rule of law.21 Good governance also involves transparency, openness, accountability and the rule of law. 22 Terms of good governance that should be defined and operationalised include:
19 Declaration
of Principles, 31 I.L.M. 874 (1992) Principle 15. of Principles, 31 I.L.M. 874 (1992) Principle 22. 21 Ram C, “Book Review - Sustainable Development and Good Governance Ginther K, Denter E and De Waart PJIM (eds), Dortrecht Martinus Nijhoff 1995” in 45 International and Comparative Law Quarterly 1996 pp.490-491 at p. 491. 22 Bhatta G, “Decentralised Governance: Empowerment Without Capacity Enhancement is Meaningless” in Bhatta G and Gonzalez III (Eds), Governance Innovations in the Asia-Pacific Region Trends, Cases and Issues, Ashgate England 1998 pp.231-244 at p232. 20 Declaration
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(i) Transparency This refers to the visibility of the formulation and implementation of policy and environmental decisionmaking.23 (ii) Openness This refers to the opportunity the public has to comment on or criticise actions they perceive as not being transparent.24 (iii) Access to Information Both transparency and openness depend upon mechanisms to secure public access to information. 25 (iv) Accountability Accountability requires that decision-makers be held accountable to the public for their decisions. Accountability takes openness one-step further so those government officials can be held responsible for their actions or inaction. Accountability is fundamental to avoid interest group pressures that may distort regulatory programs, as has been recognised in most parts of the world.26 Legal accountability requires the establishment of legal procedures to enable government officials to be held to account for their decisions, either through appeal or review processes or through court procedures. Licensing There is a lack of detail in relation to licensing procedure generally. The following comments can be made this regard: (a) There is a lack of explanation as to what an environmental protection licence is and what it is designed to do. (b) There is no explanation as to the different types of licences that may apply to the protection of the environment. (c) There is no provision for the tiering of licensing obligations, depending on the sorts of premises to be licensed. (d) Whilst there is a provision regarding the integration of licensing with environmental impact assessment, as will be discussed in relation to AMDAL in Chapter 6, there are a large number of environmental licenses and approvals as discussed in Chapter 13 that require systematic coordination. (e) No procedure has been set out for the issue, transfer or variation of licences. (f) Nothing has been said about the types of conditions that may be included in the grant of a licence.
23 ibid
at p.232. at p.232. 25 In almost all of the chapters of Agenda 21 there are provisions for the gathering and dissemination of information. Access to information is necessary for the public to understand the basis of environmental decisions. It is also directly related to the principle of public participation in environmental decision-making and requires the public to be kept informed of decision-making and be given opportunities to express their opinion, contribute their knowledge and convey their priorities. 26 Sunstein CR, After the Rights Revolution Reconceiving the Regulatory State Harvard University Press USA 1990 p.97 where he states that it has been found that statutes that involve diffuse and numerous beneficiaries and well organised regulated classes tend to be inadequately enforced: p.102. In Indonesia it is also likely to take the form of corruption as well as administrators being “captured” by the group they are seeking to regulate. 24 ibid
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(g) Nothing has been said about the reasons which may provide the basis of a grant or a refusal of a licence or other form of environmental approval. Thus there is no limit on discretion in environmental decision-making and no system to ensure accountability. In particular, no provision has been made for the integration of licensing between environmental mediums. As will be discussed elsewhere in the report, there are advantages in the integration of pollution licensing so that there is one licence for an entire facility to cover all environmental media such as the discharge of waste water, air emissions, the handling of hazardous materials, restrictions on products and raw materials and site reclamation criteria.27 The main advantage of multimedia licensing is that it allows the licensing authority to assess the total environmental effect of a facility. It allows for the determination of priorities, where a facility does not have adequate resources to address all problems at once. It also allows from a reduction in the number and complexity of licence conditions and a more efficient and useful allocation of scarce resources for the licensing authority. Indeed, a number of Indonesian commentators have called for integrated licensing.28 The different kinds of licences that apply to environmental management need to be set out together with an explanation of their purpose and objective. As far as possible pollution licensing should be integrated licensing to cover all environmental media and requirements. Licensing procedure should be set out in the Act together with relevant conditions. There should be procedures for public participation in relation to major licence decisions. There needs to be a means to limit the discretion of decision-makers tasked with licensing. This can be achieved by setting out the relevant matters be taken into account in deciding pollution licence applications such as: the technical characteristics of the installation, its geographic location and the local environmental conditions the pollution caused by the carrying out of the activity and the likely impact of that pollution on the environment the practical measures that could be taken to prevent, control, or mitigate the pollution any relevant environmental impact statement or environmental assessment any industry waste reduction program or practical measures that may be taken to achieve the waste management hierarchy any public submission any relevant guidelines. Particular emphasis should be given to pollution prevention within pollution control through recognition of the waste hierarchy, and mechanisms to ensure that prevention issues are considered at the outset of a proposed industrial development. There should be a requirement upon a regulatory authority to give reasons for the grant or refusal of a licence. The licence application and the decision should be put on the public record.
27
Potter C. and Makarim N., Development and Implementation of Water Quality Paper prepared for the Environmental Management Development in Indonesia Project (EMDI) Co-published by the Indonesian Ministry of State for the Environment dated 31 December 1995 at p.35. 28 ibid.
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Monitoring Allocation of responsibility for monitoring has not been made. A role for monitoring the State of the Environment (SoE) as a source of information for understanding patterns of change is not established in the Act. Voluntary mechanisms such as self-monitoring are also not set out in the Act rather, as discussed in Chapter 13 they are contained in Government Regulations. Voluntary compliance as a concept should be elaborated in UU 23/97, and tied to administrative enforcement. Responsibility for monitoring by environmental agencies also needs to be allocated in the Act both in relation to seeking compliance and as a mechanism to obtain information about patterns of change in the environment, unrelated to “supervision of compliance.” These provisions should set out government responsibility in this regard throughout the levels of government. Access to information and public participation The concept of public participation has not been fully developed. There are numerous potential benefits of public participation in environmental decision-making. Public participation functions as a means of integrating influential sectors of the community, building loyalty, legitimising the decision reached, increasing community readiness to accept the decision, controlling decisions of public representatives and protecting legal rights and interests.29 Public participation in environmental management depends on the public’s ability to obtain information held by government about the environment. The provisions of articles 5(2) and 6(2) appear to mean that anyone can request information from an industrial enterprise in regard to the fulfilment of their environmental obligations. The elucidation of article 5(2) states that environmental information can be: in the form of data, explanation or other information involved in environmental management which according to its nature and goal is such that it is open to be known by the community, such as environmental impact assessment documents, reports and evaluations on results of environmental monitoring, both monitoring of compliance and monitoring of environmental quality changes, and spatial management ordering plans.
There is, however, an absence of detail about how such information is to be obtained. The provisions relating to public participation therefore need to be further elaborated along with procedures to guarantee the right to obtain information and to participate in environmental decision-making. The different points at which public participation is to be ensured should be set out in the Act including planning, environmental assessments, licensing, monitoring and enforcement. There should be provisions that ensure that where the public has made a contribution to the decision-making process, their views have been taken into account. Consideration should be given to the need for a statute on environmental information. It could be introduced at the national level and provide detailed procedural provisions. As a minimum the provisions should state:30 (a) that it is to apply to all levels of government (b) definitions of authorities who are the subject of the Act and what is information about the environment, (c) a general entitlement to free access to information about the environment C, “Understanding Access to Environmental Information: the European Experience” Jewell T and Steele J Law in Environmental Decision-making National, European, and International Perspectives Clarendon Press Oxford 1998 pp.139-160 at pp.142-143. 30 Reference has been made to the German Environmental Information Act 1994. 29 Kimber
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(d) (e) (f) (g) (h)
the process for making an application including time limits the absence of any government entitlement to exclude information on the basis of the public interest conditions upon which a application may be refused exemptions and restrictions on the entitlement to protect private interests obligations to inform the public about the environment.
Market-based instruments Market-based instruments have been recognised as including: taxes fees subsidies tradable permits deposit refunds There is no mention of any of these terms in the Act. There is, however a reference to “developing and applying instruments of a pre-emptive, preventative and proactive nature” (art 10 (e)). Detail regarding market-based instruments can be expected at the provincial level although to date it is still only found rudimentary form. For example in the Yogyakarta Provincial Regulation No. 3 of 1997 regarding the Control of the Disposal of Liquid Waste (Peraturan Daerah DIY No. 3 Tahun 1997 Pengendalian Pembuangan Limbah Cair) (Yogya Perda 3/97), it is stated that to obtain a license, a fee must be paid (art 7). The amount of the fee is essentially based on the volume of liquid waste with different rates applicable depending on whether the waste contains toxic material (art 8). An example of a Regional Regulation that could be introduced at the district level for market-based instruments has been drafted in Yogyakarta (Contoh Peraturan Daerah Kebupaten/Kota Madya Retribusi Pengolahan Limbah Cair). The sample regulation is an example of a fee that could be introduced by district government in the control of the management of liquid waste. It was drafted in June 1998 as a regulation to be passed at the district level. The sample regulation is designed as a payment for services provided for the processing of liquid waste that is managed by the regional government and not by private enterprise (art 1(i)). The waste to be covered is household waste, waste from offices and from industry (art 2). It is to be regarded as a service fee (retribusi jasa usaha). The size of the fee is to be in accordance with receiving a profit that is appropriate to be received by a business of the same class that operates efficiently in the market (art 7). It is to be grouped according to the type and volume of waste (art 8). Administrative sanctions have been provided for non-payment of the fee (art 15). The arrangements for payment have also been set out. Criminal provisions are also stated to apply if the non-payment impacts on the profit of the region. The level of the penalty is 6 months jail or at the maximum 4 times the total of the fee that is outstanding as a debt (art 25(1)) Investigative powers are provided for in relation to criminal proceedings (art 26). This is an area of law development that requires more attention at the regional level. Market-based instruments need to be introduced as law at the national level, however, and at least explained in principle, to provide the basis for the detailed formulation of regulations either at the central or regional level.
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CHAPTER 6 - ENVIRONMENTAL IMPACT ASSESSMENT, ENVIRONMENTAL MANAGEMENT PLANS AND ENVIRONMENTAL MONITORING PLANS Introduction This chapter will outline the arrangements for the environmental assessment including the provision for environmental impact assessment under Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) (UU 23/97) and subordinate regulations. It will also review the environmental assessment that is made of new enterprises that are not required to undergo environmental impact assessment and the provisions for environmental assessment of industries that pre-existed the passing of environmental impact assessment regulations but which would otherwise have been required to undergo environmental impact assessment. APPROVAL OF NEW DEVELOPMENTS WHERE “A LARGE OR IMPORTANT ENVIRONMENTAL IMPACT” IS LIKELY Where a large or important impact is likely to result from a proposed development an Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan) (“AMDAL”) is required to be carried out. Act No. 23 of 1997 regarding Environmental Management Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup (UU 23/97) and Regulation No. 27 of 1999 regarding Environmental Impact Assessment Peraturan Pemerintah No. 27 Tahun 1999 tentang AMDAL (PP27/99) Definitions (a) Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan) (“AMDAL”) A definition of Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan) (“AMDAL”) is not contained in Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup) (UU 23/97). UU 23/97 contains a description rather than a definition of an environmental impact analysis. In the elucidation to article 15 (1), it states that an environmental impact analysis is: on the one hand part of a feasibility study for implementing a plan for a business and/or activity, and on the other hand a condition that must be fulfilled to receive a licence to carry out a business and/or activity.
As a feasibility study is carried out before any work is carried out in relation to a proposed development, and the business/activity licence is the last stage of the development approval process, this description appears to have an internal inconsistency. In practice, a serious omission in the implementation of AMDAL has been that it is not treated as being part of the feasibility study and is often not considered until after construction has commenced. Generally, if changes or adaptations are made to a proposed development, it is in terms of the environmental management plan or the environmental monitoring plan, rather than a decision to relocate the proposed development or not to proceed at all. Notably, UU 23/97 does not state the purpose of the AMDAL or the role that it is to play. Comparison may be made, for example, to the German Act on Assessment of Environmental Impacts 1990, where it is stated that (art 1):
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In order to guarantee effective preventative environmental protection on the basis of uniform principles: 1. the effects on the environment are identified, described and assessed in time and comprehensively, 2. the results of the environmental impact assessment are taken into account as early as possible in all cases in which authorities decide upon the approval of projects.
The role of environmental impact assessment is stated in the German Act as being “an integral part of the procedures applied by authorities when deciding upon the approval of projects” (art 2(1)). It also states the content of environmental impact assessment as comprising (art 2(1)): the identification, description, and assessment of a project’s effects on: human beings, animals and plants, soil, water, air, climate and landscape, including the individual interaction that may occur; and cultural goods and other material assets.
(b) Business or activity licence Whilst an AMDAL is said to be a condition that must be fulfilled to receive a licence to carry out a business or activity, “business and/or activity” is not defined in UU 23/97. By way of comparison, the German Act includes a definition of “projects” as follows: 1. 2. 3. 4.
Construction works which are to be installed or operated. Other plants which are to be installed or operated. Other interventions in the natural surroundings and landscape Considerable alternations to a plant pursuant to sub paras 1 and 2 as far as they have significant effects on the environment.
The range of decisions that are required to take the AMDAL into account are not specified in UU 23/97, rather they are simply referred to as the “grant” of an activity or business licence. In this respect, therefore, it would seem that the range of uses for an AMDAL is quite limited. Legislation in other countries gives EIA a far wider application. For example, the German Act defines “decision” as: 1. 2. 3.
licence, permission, development consent, plan approval and other decisions on the approval of projects taken by authorities within the framework of an administration procedure, except for notification procedures general routing provisions. resolutions pursuant to the Town and Country Planning Code.
Obligations An obligation is imposed upon every plan of a business and/or activity that possibility can give rise to a large and important impact on the environment, to possess an AMDAL (UU 23/97 art 15(1)). This is a vaguely worded obligation, as it is not imposed upon anyone in particular. It also does not say that the AMDAL needs to have been approved by the relevant authority. The AMDAL assessment process There are five stages to the AMDAL assessment: (a) The decision by the government as to whether an environmental impact assessment is required or not; (b) Preparation of AMDAL documents by the proponent; (c) The assessment by the AMDAL commission of the AMDAL documents; (d) Recommendation by the AMDAL Commission to executive government; and (e) The final decision by the relevant sector, governor or mayor whether or not to approve the development.
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(a) When will an AMDAL be required? The level of environmental assessment in the approval process will depend on whether or not the proposed development is considered to possibly give rise to a “large and important impact” on the environment. The elucidation of UU 23/97 article 15(1) sets out the criteria to measure or clarify whether there is a “large and important impact” as follows: a. the number of people affected b. the extent of the area affected c. the intensity and duration of the impact d. the number of other environmental components that will be affected e. the cumulative nature of the impact f. reversibility or non-reversibility of the impact. This list is repeated in article 5(1) of Regulation No. 27 of 1999 regarding Environmental Impact Assessment (Peraturan Pemerintah No. 27 Tahun 1999 tentang AMDAL) (PP 27/99) which goes on to state that the list of projects that will require an assessment of environmental impact is determined by government regulation (art 15(2) PP 27/99). PP 27/99 provides a list of characteristics, the presence of any one of which means that a business or activity will possibly give rise to a large or important impact on the environment. It does not appear to be a comprehensive list but merely serves to indicate the range of activities that may be included in the requirement to prepare an AMDAL. Processes that may potentially give rise to a change in the form of the landscape, exploitation of natural resources, or pollution and damage to the environment are included in the list (PP 27/99 (art 3)). The regulation is supplemented by Ministerial Decree No. 17 of 2001 regarding Types of Businesses or Activities That Are Obliged to Complete an Environmental Impact Analysis (Keputusan Menteri Negara Lingkungan Hidup No. 17 Tahun 2001 tentang Jenis Rencana Usaha Dan/Atau Kegiatan Yang Wajib Dilengkapi Dengan Analisis Mengenai Dampak Lingkungan Hidup) which contains the list of industries required to carry out an environmental impact assessment.1 The annexure states that the size of the impact is to be based on: (a) the Decision of the Head of BAPEDALA No. 56 of 1994 regarding Guidelines for the Measurement of the Size of Environmental Impact (Keputusan Kepala BAPEDAL No. 56 Tahun 1994 tentang Pedoman Mengenai Ukuran Dampak Penting) (b) international standards (c) uncertainty in the capacity of technology to handle the negative impact that may arise. In addition new enterprises located next to protected areas are obligated to carry out an environmental impact assessment. Lists of industries are set out for the following sectors: A. Defence and security B. Agriculture C. Fisheries D. Forestry E. Health F. Communications 1 Issued
pursuant to article 3(2) of Regulation 27 of 1999 regarding Environmental Impact Assessment.
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G. H. I. J. K. L. M. N.
(omitted from the annexure) Industry Regional Infrastructure Minerals and Energy Tourism Nuclear Power Management of Hazardous and Toxic Waste Genetic Engineering.
By way of example, the activities related to industry and commerce that are listed in the Ministerial Decree are: 1. Cement 2. Pulp and paper industry 3. Petrochemical industry 4. Iron and steel smelting 5. Lead smelting 6. Copper smelting 7. Aluminium production 8. Industrial estates 9. Ship building with graving docks 10. Aircraft production 11. Production of weapons, munitions and explosives 12. Dry battery production 13. Wet battery production 14. Organic and inorganic chemical production that produces materials that are hazardous and toxic 15. Various other industries in metropolitan areas with 5 or more ha, large towns 10 or more ha, medium sized towns with 15 or more ha, small towns 20 or more ha and rural areas 30 or more ha. Thus, environmental impact assessment in Indonesia primarily operates on a legislative base with an action-forcing threshold rather than through the exercise of administrative discretion. Where there is scope for the exercise of discretion, it should be indicated who is responsible for exercising that discretion and the basis on which the discretion may be applied. The advantage of an action-forcing threshold is that it avoids the need for the exercise of discretion and therefore provides greater predictability as well as institutional authority. It is also more transparent and provides a firmer foundation for openness in the assessment process and therefore greater scope of public participation. A shortcoming of this approach is that it is inflexible and depends on the inclusiveness of the list. The following comments may be made regarding the list relating to the industrial sector: (i) A comparison between this list and the industries that have been identified as major polluters, through the Clean Rivers Program (Program Kali Bersih (PROKASIH)) shows that many polluting industries are not included in the list and therefore will not be required to undertake an AMDAL such as: Sugar, textiles, leather (tanning), slaughterhouses, tapioca, paper mills, nuts and bolts, frying oil, MSG, soybean cake, cigarettes, alcohol, yarn colouring and bottled tea.
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(ii) A number of industries that are caught by the regulations pertaining to the management of hazardous and toxic waste are not specifically included in the list of industries requiring an AMDAL. There is therefore a lack of congruence between the AMDAL regulations and the regulations regarding hazardous and toxic waste. A comparison may be made between the AMDAL list and the list contained in Appendix 1, Table 2 of Regulation No. 85 of 1999 Amending Regulation 18 of 1999 Regarding the Management of Dangerous and Toxic Waste (Peraturan Pemerintah Pepublick Indonesia No. 85 Tahun 1999 Tentang Perubahan atas Peraturan Pemerintah No. 18 Tahun 1999 Tentang Pengelolaan Limbah Bahan Berbahaya Dan Beracun). In this list it is stated that toxic waste is produced by the following industries: Fertilizer; pesticide; processes using chloro alkali; adhesive resins; polymers; petrochemicals; wood processing; processing iron and steel; steel treatment; lead smelting; copper smelting and purification; dyes for paper; plastic and textiles; textiles; manufacture and manufacture and assembling of vehicles and machines; electroplating and galvanising; paints and varnish; dry batteries; wet batteries; electronic components; exploration and production of oil and gas; refining oil and gas; mining; coal burning; tanning; colour substances and pigments; pharmaceutical products; hospitals; research and commercial laboratories; photographic studios; coke production; oil recycling; soapdetergent/cleaning products/disinfectants and cosmetics; animal fat processing and its derivatives; aluminium chemical conversion coating; zinc smelting; non-ferro metal processing; metal hardening; metal and plastic shaping; laundry and dry-cleaning; liquid waste treatment; waste treatment incinerators; recycling of solvents; the gas industry; glass and ceramics; seal, gasket and packing; paper; chemical and industrial cleaning; photocopying; all industry that produces and uses electricity; and vehicle repair workshops:
These industries will not undergo AMDAL assessment unless the collection, exploitation, processing and/or storage is the primary activity of the enterprise (Appendix M). Thus, whilst it is recognised that these industries deal with or produce hazardous and toxic waste, an AMDAL will not be required where handling of the waste is not the primary activity. (iii) Where a proposed development changes overtime - prior to, during, or after construction - a question arises as to whether a fresh environmental impact assessment is needed. Regulation 27 of 1999 does not adequately address this. It appears to merely state that industrial enterprises already the subject of an environmental impact assessment do not need to undergo further assessment as long as control of environmental impact is in accordance with the environmental management plan and monitoring plan (art 4). (b) Preparation of AMDAL documents by the proponent The AMDAL process involves the review of four documents, the content of which is detailed the Decision of the Head of the Environmental Impact Management Board Number 9 of 2000 Regarding Guidelines for the Formulation of Environmental Impact Assessment (Keputusan Kepala Badan Pengendalian Dampak Lingkungan No.: 9 of 2000 Tentang Pedoman Penyususan Analisis Mengenai Dampak Lingkungan Hidup) ("the AMDAL Guidelines"). The documents are as follows: (a) Terms of Reference or Scoping Document (Kerangka Acuan (KA)) (b) Environmental Impact Assessment (Analysis Dampak Lingkungan (ANDAL)) (c) Environmental Management Plan (Rencana Kelola Lingkungan (RKL)) (d) Environmental Monitoring Plan (Rencana Pemantauan Lingkungan (RPL)
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The AMDAL guidelines are highly prescriptive regarding the content of each of the AMDAL documents and the methodology to be adopted in their preparation. The content of the AMDAL documents as specified in the AMDAL guidelines will not be considered in this report. However, the comment can be made that the high level of detail is likely to assist an AMDAL Commission in its assessment of the documentation. Of particular importance is the existence of a requirement within the AMDAL guidelines to consider alternatives so that decision-makers are given choices that would accomplish objectives with less impact. The comment has been made that ANDALs rarely consider alternatives within the project, with the result that measures to avoid or minimise impacts through changes in siting, alignment or technology are not considered.2 (c) Assessment of the AMDAL documents and the ultimate decision PP 27/99 states that the terms of reference must be rejected if the planned location of the development does not comply with spatial planning requirements (art 16(4)). Apart from this requirement, there is little guidance as to the approach to be taken in assessing the terms of reference. The assessment of the other AMDAL documentation is stated to be for the purpose of discerning the extent of the environmental impact and the adequacy of the environmental management plan and environmental monitoring plan. It is also to assess the social impact and to this end a Decision of the Head of BAPEDAL No. 299 of 1996 regarding Technical Guidelines for the Examination of the Social Aspects of AMDAL (Keputusan Kepala BAPEDAL No. 299 Tahun 1996 tentang Pedoman Teknis Kajian Aspek Sosial Dalam Pengusunan AMDAL) has been passed.3 A broadly cast obligation is imposed upon the AMDAL Commission pursuant to Ministerial Decree No. 40 of 2000 regarding Guidelines for the Work Administration of AMDAL Commissions (Keputusan Menteri Negara Lingkungan Hidup No. 40 Tahun 2000 Tentang Pedoman Tata Kerja Komisi Penilai Analisis Mengenai Dampak Lingkungan Hidup) (“the AMDAL Commission Guidelines”) to take into account national policy for the management of the environment, development plans for the locality, spatial planning and the interest of national security (art 2(2)). The AMDAL Commission is assisted by a technical team which according to article 5 of the AMDAL Commission Guidelines makes an assessment of: a. conformity with the AMDAL Guidelines b. conformity with laws and regulations c. conformity with spatial planning requirements d. methodology of research and analysis e. validity of the data f. the appropriateness of the design, technology and production process g. the ecological appropriateness of the proposed development. The assessment PP 27/99 states that if the AMDAL commission concludes that (art 22(1)) 2 Presentation
by Tom Walton, Director Environment Department, World Bank Indonesia Office on 28 June 2000
3 Another relevant instrument is Decision of the Head of BAPEDAL No. 124 of 1997 regarding Guideline for the
Examination of the Community Health Aspects of AMDAL (Keputusan Kepala BAPEDAL No. 124 Tahun 1997 tentang Panduan Kajian Aspek Kesehatan Masyarakat Dalam Penyusunan AMDAL). Space will not permit a review of these instruments.
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a. the size and the importance of the negative impact is such that it is not able to be managed by available technology; or b. the cost of handling the impact is larger than the benefit brought by the development then the responsible agency (instansi yang bertanggung jawab) is to decide that the development is not appropriate for the environment. The responsible agency is according to PP 27/99, the agency with authority to give a decision regarding the environmental suitability of the proposed development with the understanding that this agency within central government is BAPEDAL and within regional government is the governor (art 1(9)). More detail regarding the assessment of the AMDAL documentation is provided for by way of the AMDAL Commission Guidelines which state that a technical evaluation is to be made by the technical team and lists the factors to be taken into account in making the evaluation (art 5(2)). The technical team is to guide consideration of the technical issues to the AMDAL Commission (art 6). The AMDAL Commission Guidelines provide detail as to how the AMDAL Commission is to consider both the Terms of Reference and the AMDAL itself, for example, an obligation is imposed on the Commission to give attention to the suggestions, input and opinions of the community (arts 12 & 16). The guidelines do not, however, elaborate on the criteria to be applied in assessing the documents. In particular, further detail should be provided in relation to the sort of considerations that are to be taken into account in forming the view that the cost outweighs the benefit, such as how to include costs that do not have a value that can be readily assessed in economic terms. The ultimate decision The final decision-maker (instansi yang berwenang) is the person empowered to approve the business or operating permit, namely, a sectoral minister, governor or mayor. It is stated in PP 27/99 that the agency with authority to give permission to the industry or activity will refuse an application for approval if there is a finding to the effect that the development “is not appropriate for the environment.” (art 22(2)). Thus a distinction has been made between the assessment of documents by the AMDAL Commission and responsibility for making the final decision on whether or not to approve the development. It would seem that this provision is intended to convey that there is no scope for the exercise of discretion by the ultimate decision-maker. However, such a conclusion would be strengthened by the use of the word “must” (wajib) which is absent. A procedural defect in PP 27/99 is the provision that states that if, after a certain amount of time has passed no decision has been made, the AMDAL documentation will be deemed to have been approved (arts 16(3) & 20(2)). These provisions may be designed to ensure a swift assessment, however, they could lead to a superficial review where detailed analysis is needed. Given that it may be necessary to gather adequate data and make informed predictions, limitations on the time available for the assessment of AMDAL documentation is not appropriate and could affect the quality of the environmental science in the AMDAL. A more environmentally protective approach would state that without a positive decision regarding the adequacy of the AMDAL documents, the proponent should consider that approval has not been granted. Regional Regulations It would seem that some variation is occurring at the regional level. By way of comparison, the directive passed at the provincial level in Yogyakarta – Decision of the Governor No. 9 of 2001 regarding a Direction for the Implementation of AMDAL (Keputusan Gubernor Daerah Istimewa Yogyakarta No. 9 Tahun 2001 tentang Petunjuk Pelaksanaan Analisis Mengenai Dampak Lingkungan Hidup Propinsi Daerah) states that 89
the assessment of the AMDAL documents is to be carried out by a technical team (art 12(2)(a)) who are to report their findings to the AMDAL commission. The criteria to be applied in assessing the documents are not set out in the directive, rather it merely states that, if as a result of the assessment, the AMDAL commission considers that the documents are “not complete/well done” (kurang sempurna) then they are to be returned to the proponent (art 12(2)(d)). Thus there is no mention of the factors mentioned in article 22(1) PP 27/99. The Yogyakarta directive also states that, if as a result of the assessment there is a finding that the documents are “complete/well done” then the AMDAL commission is to hand over a report or recommendation to the governor as “a matter to be considered” in taking his decision (art 12(2)(h)). Thus in the regional directive, a wider discretion appears to have been granted to the ultimate decision-maker than is available under PP 27/99. There is no mention of the matters that are to be taken into account by the governor in deciding whether or not to approve the proposed development. Inconsistency between a provincial regulation and a national regulation could lead to decision-making within the regions that does not conform with the regulation. As PP 27/99 is a higher law, it has priority over the regional regulation, however, an inconsistent approach could possibly develop in the regions unless rectified. Accountability in AMDAL decision-making One of the most common criticisms of EIA in the USA and elsewhere is that the assessment is prepared by the party that most wants the proposal to be accepted. Even though the document itself is likely to be written by a professional firm of environmental consultants, they can be expected to present their client’s proposal in the best possible way and this may affect the quality of the information and analysis contained in the assessment. To counteract this tendency, systems need to be put into place to ensure that biased or inadequate assessments are detected. In Indonesia this objective has been partly fulfilled by the detailed provisions of the AMDAL guidelines. Public participation provisions are also important to allow for external scrutiny of environmental decisionmaking. PP 27/99 provides rights to the community to information and to participate in AMDAL decisionmaking. It also imposes obligations on the developer and the AMDAL commission (arts 33-35). Decision of the Head of BAPEDAL No. 8 of 2000 regarding the Involvement of the Community and Access to Information in AMDAL (Keputusan Kepala Badan Pengendalian Dampak Lingkungan No.8 Tahun 2000 tentang Keterlibatan Masyarakat Dan Keterbukaan Informasi Dalam Proses Analisis Mengenai Dampak Lingkungan Hidup) provides additional detail regarding public participation. Notably, however, it only takes the form of a guideline issued be a head of government body and does not have the force of law. It sets out rights of the community to obtain information regarding the different stages to the AMDAL assessment and to provide comments and suggestions regarding the AMDAL documents. It also states that the affected community has a right to be a member of the AMDAL commission reviewing the proposed development. Obligations are also set out to advertise the commencement of the AMDAL, process opinions and suggestions received from the community, provide a summary of the material received from the public along with a response, provide information regarding the consideration of the AMDAL documentation as well as to facilitate the involvement of the public. Obligations are also imposed on the developer in relation to the provision of information about the proposed development. Comments that can be made in relation to these obligations are as follows: (a) The quality of information supplied about a project is crucial to meaningful participation by the public. Little detail is provided in this regard; the guidelines simply state that the developer is required to notify the 90
public as to “the impact on the environment that will arise” (3.1 (3)(f)). This information should be sufficient to indicate the full extent of the impact. (b) The consideration of the public’s response by the AMDAL commission must be genuine and not token. The achievement of real consideration is assisted by the obligation upon the AMDAL commission to provide a summary of the material received from the public along with a response. (c) A mechanism, which is often important to encourage meaningful participation, is the option of holding a public hearing. This has not been provided for, rather there is an obligation imposed on the developer “to consult” with the affected community in the preparation of the terms of reference4 (2.3 (2)). (d) Review of decision-making relating to EIA through access to a court or a tribunal is an important aspect of protecting public rights and expectations. Experience elsewhere has shown that it is relatively easy for decision-makers to ignore public opinion. A right of review is particularly important if one takes into account the difficulties regional governments may have in saying ‘no’ to environmentally damaging projects that may promise investment and job creation. In other countries, legal review through the courts is possible at two stages of the EIA process: (i) to ascertain whether a decision to require, or not require an EIA was reasonable; and (ii) to test the adequacy of an assessment, where one was provided. The Administrative Court is potentially available for this kind of review. Act No. 5 of 1986 regarding the Administrative Court (Undang-undang No. 5 Tahun 1986 tentang Peradilan Tata Usaha Negara) provides that an interested person or a legal organisation who is affected by an administrative decision is able to file a claim with the court seeking that the decision be set aside with or without a claim for compensation and or restoration (art 53). For a decision to be reviewable it must be issued by a government authority or official and be written, concrete, individual and final, and give rise to a legal consequence for someone or a legal entity (art 1(3)). It is likely that recommendations made by the AMDAL Commission do not meet these criteria and therefore are not able to be challenged under the Administrative Court Act.5 This aspect requires further exploration, however, it would seem that decisions such as (i) and (ii) mentioned above will not be challengeable through the Administrative court as even though they may by written, concrete and individual, they are neither final nor do they give rise to a legal consequence. The final decision could be challenged, as it is this decision which gives rise to a legal consequence. The only basis that it could be challenged on, however, would appear to be a failure to apply the recommendation of the AMDAL Commission. INSTITUTIONAL ASPECTS OF AMDAL Prior to regional autonomy, responsibility for the assessment process had been delegated to BAPEDAL, the relevant sectoral department within central government or the provincial government.6 Each Ministry 4 It
is understood, however, that public hearings do occur from time to time. SS and Wijoyo S, “Deregulating Licensing to Improve Environmental Control and Monitoring in Indonesia” Indonesian Journal of Environmental Law Ed 2 August 1997 pp.99-119 at p.105. 6 There were four kinds of EIA projects (1) Project developments were approved by the Department of Industry (2) Estate Developments were approved by their sectoral departments. (3) Regional EIAs were reviewed by the BAPEDAL Central Office; and (4) Integrated developments, which include different sectors such as forestry and 5 Rangkuti
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and Provincial Government had been required to develop sectoral AMDAL procedures and guidelines consistent with the guidelines issued by the Minister for the Environment and to establish an Environmental Commission. AMDAL Commissions were established in sectoral government departments and agencies at central government level and at the provincial level and were overseen by BAPEDAL. As a result of decentralisation, this arrangement has changed. Pursuant to PP 27/99 central government is responsible for evaluation of AMDAL documentation in a limited range of areas, for example, where strategic or defence issues are involved, where the activity takes place in more than one province, or where the area borders on another country (art 11(1). This arrangement accords with regional autonomy law set out in PP 25/2000 which states that the central government has retained authority only for environmental impact assessment activities that (article 2(18)(c)):
have the potential to negatively impact society at large and/or concern defence and security; or have locations encompassing more than one province; or are located in regions that are in dispute with foreign countries, are in the sea beyond the twelve nautical mile limit or which cross over to another country.
Provincial government now has authority for AMDAL assessment regarding activities with the potential to have a negative impact on the wider community and for locations that include more than one district (PP 25/2000 art 3(5)16.d.). District level government has responsibility for the balance of AMDAL assessments. The respective authority of each level of AMDAL is clarified in the AMDAL Commission Guidelines which list the sorts of enterprises that are to be assessed by each level of AMDAL Commission (arts 1(4),(5)&(6)). Provincial commissions set up at the regional and district level are now handling the bulk of the AMDAL assessments7 and this means that the final decision in most AMDAL assessments is made by the governor or mayor.8 The implications for law making at the regional level is that consideration has to be given to converting guidelines passed by central government into provincial and district Perda so as to provide a legal basis to the operation of the AMDAL Commissions established at the regional level. POST-DECISION MONITORING A common criticism of environmental impact assessment generally is the lack of post-decision monitoring and therefore a brief comment is required in this regard. Monitoring the predictions made in an AMDAL is essential if the accuracy and effectiveness of the program is to be checked. The AMDAL documents and subsequent monitoring results can also be used to improve the scientific basis to environmental management more generally. Information prepared by consultants could become part of the matrix of known data about the environment and AMDAL could become part of an ongoing learning process. To ensure that post-decision monitoring occurs, it is necessary that specific regulations coordinate the AMDAL commissions and other agencies tasked with environmental monitoring. Ideally, monitoring should transport and these, were reviewed by the BAPEDAL Central Office. 7 Article 11(2) Regulation 27 of 1999. 8 A Ministerial Decree regarding AMDAL Commissions established at the district level regarding membership, the sectoral representatives, experts and community representatives has been passed: Keputusan Menteri Lingkungan Hidup No.41 Tahun 2000 tentang Pedoman Pembentukan Komisi Penilai AMDAL Kabupaten/Kota.
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commence before construction so that base-line data can be obtained. It should also be carried out during construction to determine the impact of construction and after the commencement of operations to determine whether the impact accords with predictions in the AMDAL. The extent to which laws or regulations exist to enable this sort of monitoring is an area that needs to be followed up by further research. APPROVAL OF NEW DEVELOPMENTS WHERE “A LARGE OR IMPORTANT ENVIRONMENTAL IMPACT” IS NOT LIKELY Where a proposed development is not likely have a large or important impact and/or technology is able to manage the level of impact, there are two documents that are required to be prepared, namely the: (a) Upaya Pengelola Lingkungan (UKL) - the environmental management plan (b) Upaya Pemantauan Lingkungan (UPL) - the environmental monitoring plan. The industries that are required to complete the UKL and UPL are listed in sectoral regulations.9 The UKL and UPL will be required for a wide range of activities. For example, in relation to protection of the soil, a business or activity a business will be required to prepare a UKL and UPL to prevent damage to the soil before it can obtain a business or activity licence.10 Pursuant to Decision of Minister for the Environment Number Kep-12/MENLH/3/94 regarding General Guidelines for Environmental Management and Monitoring Procedures (Keputusan Menteri Negara Lingkungan Hidup No. 12 Tahun 1994 tentang Pedoman Umum Upaya Pengelolaan Lingkungan (UKL) dan Upaya Pemantauan Lingkungan (UPL)) (“the UKL/UPL Guidelines”) there is an obligation upon enterprises to implement these documents in accordance with a licence passed under applicable regulations (art 1). This indicates without specifically stating, that there is also an obligation upon a licensing authority to incorporate the UKL and UPL in a business or activity licence. The content of UKL and UPL for the industrial sector is set out in the appendix to the UKL/UPL Guidelines pursuant to which the UKL and UPL is stated to include: 1. A brief explanation of the activities to be undertaken by the proponent, including • the precise location in relation to resources such as rivers; • the facilities including the types of raw and auxiliary materials including quantities, volumes, features, origins, types of transportation, storage methods and final waste disposal; • the source of water and its utilisation; and • production processes used or implemented. 2. A brief explanation of the environmental resources or components which are predicted to experience any impact. 9 Such as Decision of the Minister for Industry No. 250 of 1994 regarding Technical Guidelines for the Control of
Environmental Impact in the Industrial Sector (Keputusan Menteri Industri No. 250 Tahun 1994 tentang Pedoman Teknis Penyusunan Pengendallian Dampak Terhadap Lingkungan Hidup Pada Sektor Industri): art 5(2) Appendix II. 10 Government Regulation No. 150 of 2000 regarding the Control of Damage to Soil For the Production of Biomass (Peraturan Pemerintah 150 Tahun 2000 tentang Pengendalian Kerusakan Tanah Untuk Produksi Biomassa) article 11 and elucidation.
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3. An outline of the impacts which are expected to occur in the form of wastes or pollution or otherwise including the source of the impact, the type of impact and magnitude and the characteristics of and criteria for the impacts. 4. A detailed description of the environmental management procedures to be implemented. 5. A detailed description of the environmental monitoring procedures to be implemented. 6. A detailed description of the mechanism for reporting on the application of the procedures. 7. A signed commitment to implementing the procedures. Despite a requirement that there be a “detailed description” of the environmental management, monitoring and reporting procedures, there is no specification in the UKL/UPL Guidelines as to what the description should contain. This is left to sectoral guidelines. The content of the UKL and UPL is set out in Ministerial Decrees and technical pedoman issued by the respective sectors, for example:
Decree of the Minister for Tourism, Post and Telecommunications No. 95 of 1995 regarding Technical Guidelines for the Compilation of UPL and UKL (Keputusan Menteri Pariwisata Pos dan Telecommunication No. KM 95/UM.001/MPPT-94 dated 22.11.94 tentang Pedoman Teknis Penyusunan Upaya Pengelolaan Lingkungan Dan Upaya Pemantauan Lingkungan Bidang Pariwisata)
Decree of the Minister for Communications No. 2 of 1996 regarding Planned Businesses or Activities in the Communications Sub-Sector that are Obliged to Complete a UKL and UPL (Keputusan Menteri Perhubungan No. KM 2 Tahun 1996 tentang Rencana Usaha atau Kegiatan Pada Sub Sektor Perhubungan Darat Yang Wajib Dilengkapi Upaya UKL and UPL).
To ensure that sectoral UKL and UPL are environmentally effective it would be preferable for a higher legal instrument such as a government regulation to specify the content of the UKL and UPL including aspects such as pollution prevention measures, an integrated approach to waste minimisation and compliance with the waste hierarchy. OLD ENTERPRISES The first AMDAL regulation came into operation through the passing of Government Regulation No. 29 of 1986 regarding Environmental Impact Assessment (Peraturan Pemerintah No. 29 Tahun 1986 tentang Analisis Mengenai Dampak Lingkungan)(PP 29/86). At this time, as there were many operating enterprises that escaped AMDAL, an obligation was imposed on them to complete an Environmental Evaluation (Studi Evaluasi Mengenai Dampak Lingkungan). If these industries used toxic and hazardous materials in their production process they were required to complete the study by 5 June 1990 and other industries were required to complete the study by 5 June 1992. In 1999 it was recognised that there were still many businesses that had not completed the study. Pursuant to Decision of the Minister for the Environment No. 30 of 1999 regarding Guideline for the Composition of Environmental Management Documentation (Keputusan Menteri Lingkungan Hidup No. 30 Tahun 1999 tentang Penyusunan Dokumen Pengelolaan Lingkungan Hidup) all industries and activities that had not complied with PP 29/86 were required to complete an Environmental Management Document (Dokumen Pengelolaan Lingkungan) (art 2). The content of the document is stipulated in the appendices (art 3) and is to be the basis for sectoral implementation (art 4(1)). An obligation was imposed upon every industry to
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hand over a report on the implementation of their Environmental Management Document to the relevant government department and BAPEDAL by 31 December 1999. Further research is required as to the extent to which this regulation has been complied with. It is likely that compliance is not complete. Consideration is therefore required as to how these provisions can extended, taking into account regional autonomy. CONCLUSIONS AND RECOMMENDATIONS A great deal of detail is contained in the guidelines for the preparation of AMDAL documentation. It can be seen, however, that a significant range of polluting industries will escape the AMDAL net. The control of these industries relies on the preparation of UKL and UPL and the approval of these documents by sectoral agencies. The monitoring of the implementation of commitments made in these documents is to be supervised by the sectoral agencies. In relation to the AMDAL process, it is notable that the definition of AMDAL and the explanation of its role and purpose are not clearly set out in UU 23/97. AMDAL needs to be defined in UU 23/97. The purpose and role of AMDAL needs to be clearly set out. It should be indicated that it is an assessment made at a time when the feasibility of a proposed development is being considered prior to any work commencing. The option should be kept open that the development may be refused. The full range of approvals and licences that will require an approved AMDAL as a precondition should be set out in UU 23/97. Whilst the content of the AMDAL document is prescribed in detail in the AMDAL regulations, there is a lack of guidance from UU 23/97 and PP 27/99 regarding the factors to be taken into account, and the matters that are to have particular weight, in assessing the documents. A superficial “ticking the box” type of approach to AMDAL assessments needs to be avoided. There needs to be further guidance in the form of the sorts of factors that are to be considered in making a benefit cost analysis of the proposal by the AMDAL commission. The provisions that deem an approval after the expiry of time should be revoked. Consistency between the national regulations and Perda needs to be ensured in relation to the effect of a finding regarding the AMDAL upon the ultimate approval decision. This could be done by greater specificity at the national level. A system of external oversight needs to be established to cater for situations where there is an allegation that AMDAL documentation is inadequate or the review process has not been properly carried out in some way. The experience in other countries has been that there is a need for external review to ensure that decision-makers take all matters into account in reaching their decision that they should. Greater attention needs to be given to the UKL and UPL, as there are many heavily polluting industries for which these documents are the only form of environmental control. National cross-sectoral regulations should be drafted to provide detail as to the content of the UKL and UPL. This should include provision for an integrated approach to all materials used and waste produced by an enterprise with prioritisation being given to prevention rather than ‘end-of-pipe’ solutions.
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The provision in place for enterprises that predated the introduction of environmental impact assessment need to be re-visited to take into account the reality that many businesses have not yet completed an evaluation of environmental impact. Government responsibility needs to be re-allocated to take into account regional autonomy.
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CHAPTER 7 – FRESH WATER QUALITY Introduction Deterioration in the quality of fresh water is a major environmental problem in Indonesia. The management of water resources is undergoing reform at the national level. Both this chapter and Chapter 16 on Water Resources Management will refer to draft laws and regulations available at the time of writing the report. This chapter will focus on the new Government Regulation No. 82 of 2001 regarding the Management of Water Quality and the Control of Water Pollution (Peraturan Pemerintah No. 82 Tahun 2001 tentang Pengelolaan Kualitas Air Dan Pengendalian Pencemaran Air) (“PP82/2001”) which has replaced Government Regulation No. 20 of 1990 regarding the Control of Water Pollution (Peraturan Pemerintah No. 20 Tahun 1990 tentang Pengendalian Pencemaran Air) (“PP 20/1990). The stated goal of the reform of water resources management is to introduce Integrated Water Resources Management (IWRM) based on the concept of the river basin or watershed. The concept of IWRM represents a convergence of thinking internationally on how to manage water resources. A watershed takes into account both surface and groundwater in an area divided topographically and draining ultimately to the sea. Management based on the watershed is the key principle to integrate the interests of all those who have a relationship to a particular body of water, both humans and non-humans. It can be the basis for the building of broad-based alliances between diverse users of water to help solve problems cooperatively through public participation. Within a single watershed, problems may range from water shortages to floods, erosion to sedimentation and water pollution from family units and from large-scale industry. Watershed management links water quantity and water quality. In relation to both water quantity and quality, watersheds may be used as the basis for information gathering, which can then be used for standard setting, licensing, monitoring and enforcement. The application of the river basin approach in Indonesia has gradually evolved since the early 1980s. It was first provided for in Government Regulation No. 22 of 1982 regarding the Administration of Water (Peraturan Pemerintah No.22 Tahun 1982 tentang Tata Pengaturan Air), which referred to the concept of the river basin as the unit for planning the use of water. At that time the concept of the river territory (wilayah sungai) integrated the planning of river basins, as encapsulated in the phrase “one river - one plan”. The recently adopted National Water Policy seeks to pursue the watershed approach in combination with new systems of public governance. GENERAL Definitions The definitional framework for water quality management will be shared between Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup)(“UU 23/97”), the National Water Act and PP 82/2001 which between them will define
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terms such as “the environment”, “environmental pollution”, “environmental damage”, “sustainable development”, “waters” and “water pollution”.1 Waters – surfaces water and groundwater PP 20/1990 defined water as follows: All the water that is present in or is derived from water sources, and is found on the surface of the ground, not including water that is present below the surface of the soil, or sea water.
Thus, it can be seen that it only dealt with surface water and failed to integrate water as a whole so as to take into account both groundwater and surface water. In contrast, the draft National Water Act defines water as: all water above and below the surface of the earth, including groundwater, rainwater, and seawater that is used on the land.
PP 82/2001 defines water as: All the water above and below the surface of the earth, not including seawater or fossil water.
It is clear that groundwater is now included within the concept of water quality management. The exclusion of fossil water, however, does not take into account the fact that the use of fossil water impacts on the use of other sources of water as it is an alternative source of water. It would be more complete to include all forms of groundwater in the concept of water, including fossil water. Seawater The definitions leave uncertain the position of estuarine waters such as salt marshes, coastal and inter tidal areas, bays, harbours, lagoons, inshore waters and channels. Whilst PP 82/2001 excludes seawater outright (art 1(1)), the draft National Water Act includes seawater that is used on the land (art 1(2)). It would have been preferable to provide a definitive list of water bodies including estuarine waters. Given that the hydrologic unity of the river basin is the unifying principle in integrated water resources management, estuarine waters should be included in the definition of water. Water Pollution Water pollution is defined in PP 82/2001as: (art 1(11)) Anything and everything that has entered into the water, i.e. living organisms, materials, energy and/or other components that have entered into water by human activities, that cause the deterioration of the quality of water to a certain level, and that pursuant to its function, causes water to no longer meet its function.2
This definition leaves open the question of how to assess the deterioration of water quality and how to establish that water quality is “no longer able to meet its function”? To prove that water pollution has occurred it would have to be established that the pollution in question has caused deterioration in water quality and that this in turn has resulted in the body of water no longer being able to meet its function. It is 1 “The
environment”, “environmental pollution”, “environmental damage” and “sustainable development” have been discussed in Chapter Five. 2 The definition of environmental pollution in Act No. 23 of 1997 Regarding Environmental Management is drafted similarly (art 1(12)).
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linked to the classification of water bodies discussed below, under which ambient standards are set for the particular beneficial uses of a water body. This formulation is difficult to implement. It means that in criminal or civil proceedings it is necessary to prove that a particular discharge has caused the deterioration of water quality to the extent that the water is no longer able to meet its function. By way of comparison, water pollution could be more simply defined as: (a) a change in the physical, chemical or biological composition of waters or alternatively (b) a change that is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters or alternatively (c) the introduction matter of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter. 3
Groundwater A definition of groundwater is not provided by PP 82/2001. A definition of groundwater pollution is provided in the Groundwater Administration Regulation as follows: The entrance into ground water of substances, physical, chemical or biological components and or the change in the order of groundwater by human activities or processes that as a consequence cause the quality of groundwater to fall to a certain level that is not in accordance with its allocation (art 1(m)).
VALUING WATER RESOURCES Environmental or use values in valuing water quality? The practical place at which to start a water quality management program is the valuation of a water body. The protection of specifically identified and recognised values is widely accepted internationally.4 The primary difference in approach between countries turns on whether the values to be protected are 'use values' or 'environmental values'. Use values focus upon human, health-oriented values, such as the quality of water for drinking, agriculture or aquaculture. Environmental values go further to include ecosystem protection and protection of the aesthetic aspects of a water body. Environmental values also take into account the maintenance of ecosystem integrity. For this reason they are relevant to the discussion of ecosystem protection and biodiversity protection contained in Chapters 18, 19 and 20 in relation to the freshwater environment. Use values tend to be human centred and represent an exploitative approach to the management of environmental resources. They also present a deterministic view of an ecosystem, in that they do not see an ecosystem as a complex whole and assume that factors controlling its function may be easily identified. It is now recognised that the relationships between key ecological processes and their components are complex, variable, probabilistic and cannot be determined precisely.5 For this reason, use values alone are not considered an adequate basis for water quality management. 3 Taken
from the dictionary in the Environmental Offences and Penalties Act (NSW) 1997
4 Australian and New Zealand Environment and Conservation Council, Guidelines for Fresh and Marine Water Quality,
November 1992 p.1-2. 5 Ibid at p.1-4. Despite the economic importance of freshwater ecosystems to people in the tropics, nutrient cycles, carrying capacities and ecological limits are generally not well understood according to Whitten T, Soeriaatmadja RE and Afiff SA, The Ecology of Java and Bali The Ecology of Indonesia Series Vol II, Dalhousie University 1999 at p.413.
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Integrated water quality management requires the assessment of both the environmental value as well as the use value. This is indicated in the general objective of Agenda 21 relating to water resources: to make certain that adequate supplies of water of good quality are maintained for the entire population of this planet, while preserving the hydro geological, biological, and chemical functions of the ecosystems, adapting human activities within the capacity limits of nature.6
The objective of the Agenda 21 programme for the protection of water resources, water quality and aquatic ecosystems is stated to be the maintenance of ecosystem integrity, according to the management principle of preserving aquatic ecosystems, including living resources. 7 Thus, Agenda 21 contains the dual objectives of (1) meeting human needs and (2) preserving the functions of ecosystems.8 The provisions of PP 82/2001 mention the need for ecosystem protection within water quality management. The preamble refers to giving attention to the present and future generations and ecological balance. There is a statement of principle in article 2 that the management of water quality and the control of pollution is to be implemented in an integrated way using an ecosystem approach. The concept of making efficient use of water (pendayagunaan air) in article 7 states that in composing the plan for efficient use of water the relevant level of government is to take into account the economic and ecological function of water (art 7 (2) & (3)). Of more importance, however, is whether these provisions are followed up with procedural rules that require ecological considerations to be taken into account in decision-making. Such rules have not been drafted in the new regulation. Classification of waters If values are to be attributed to particular water bodies, it follows that a system to classify water bodies according to their value needs to be established. PP 82/2001 establishes a system within the body of the regulation as follows (art 8): Class One: drinking water or similar uses. Class Two: recreation, fish cultivation, watering plants or similar uses Class Three: fish cultivation, animal husbandry, watering plants or similar uses Class Four: watering plants or similar uses. The criteria for each class are contained in the appendix to the regulation. There is no category for the protection of aquatic life and this is consistent with the impression that the approach adopted in Indonesia does not yet accommodate environmental values. The opinion has been expressed that a category for protection of ecosystems would require the preparation of ecological criteria to enable investigation of the ecological status of a water body and that this is not yet feasible in Indonesia as ecological criteria are not For example Java has about 130 species of native freshwater fishes but little is known of their abundance, status, migratory habits or ecological role: at p.435. 6 Agenda 21 United Nations 1992 Chapter 18:2. 7 ibid at 18.38 (a). 8 This does not imply a duty to protect ecosystems for their intrinsic value and leaves unresolved the ethical question of how to resolve conflict between human demand for water resources and the needs of water for ecosystem protection. Canter L, Otto K and Brown DA, “Protection of Marine and Freshwater Resources” in Lemons J and Brown DA Sustainable Development: Science, Ethics and Public Policy Kluwer Academic Publishers Netherlands 1995 pp.158214 at p.202.
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yet available.9 However, a category for the protection of ecosystems could have been established for the interim period before the finalisation of ecological criteria. The classification process To date the valuation of water bodies has been carried out at the provincial level.10 Under PP 20/1990 the governor was to appoint a technical authority to make inventories of the quality and quantity of water in their respective province (art 2). The data was to be prepared and documented by the technical authority (art 4(1)). Little detail was provided in PP 20/1990 concerning the process for determining the beneficial uses of water.11 Thus, it was not clear how the governor was to go about determining the use of water bodies except that it was to be pursuant to the beneficial use categories of water (art 10(1)(a)). There was no compulsion to use the water quality and quantity data that had been collected by the technical authority. 12 When sufficient information on existing and planned water uses and on water quality was not available, the river section was to be classified as Category B by default (that is, water able to be used as drinking water after processing).13 In practice, however, there was a tendency to classify water as suitable for industrial use, which was the least stringent category. PP 82/2001includes even less detail regarding classification of water bodies. It sets out the form of the classification in terms of the sort government regulation in which it will be contained – that is Keppres, Provincial Perda or Kabupaten/Kota Perda (art 9(1)). It states that it is to be based on the results of investigations (art 9 (2)). The classification of water bodies is to be the subject of a guideline (pedoman) to be produced by the Minister for the Environment (art 9(4)). The body responsible for the classification process is not allocated - is therefore not clear whether it is to be a sectoral department (dinas) or the regional technical organisation with primary responsibility for the control of environmental impact. This raises issues regarding the ongoing uncertainty about who is to do what in implementing environmental control measures. The issue of the appropriate level of lawmaking also arises in the classification process. A choice has to be made between laws or guidelines. At issue is whether the substance and procedure of classification should be regulated through a pedoman. It is likely that the pedoman will cover a wide range of matters including the procedure of inventory making, public access to information regarding the classification, public participation in the process and matters to be taken into account in the classification. Without any legal status, there will be no legal force requiring regional governments to fully assume their responsibilities and no legal basis upon which to call decision-makers to account.
9 According to personal communication with BAPEDAL officer responsible for drafting the regulation on 14 September
2000. 10 Regulation 20 of 1990 (art 10(1)) 11 It was simply stated that the water quality and quantity data may be used as the basis for consideration of water uses of the water sources concerned (art 6 a.). Article 10 (a) said that the governor shall: Pursuant to the categories of water mentioned in article 7 paragraph (1), determine the beneficial uses of water. 12 Article 6(a) said that this data may be used to determine water quality uses 13 Potter C. and Makarim N, Development and Implementation of Water Quality Standards in Indonesia. Paper prepared for Environmental Management Development in Indonesia Project (EMDI) co-published by the Indonesian Ministry of State for the Environment 31 December 1995 at p.22.
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Links between water quantity and quality in planning and classification Notably the body of the regulation does not link the management of water quantity and quality. The elucidation of article 2 refers to the concept of the watershed (daerah aliran sungai (DAS) dan daerah pengaliran sungai (DPS)) regarding the concept of integrated water quality management and pollution control, however, there is no mention of watershed or river basin in the regulation in a procedural sense. The elucidation states that cooperation between regions is to be through a board (badan) established for the river basin, to coordinate the sectors and levels of government involved with managing water quality. There is no detail, however, apart from a statement that it is to be made up of agencies related to the use of water, monitoring water quality, setting water quality standards, determining carrying capacity, licensing the disposal of waste and building compliance (art 2 elucidation). Overall, the mechanisms for considering water quality and water quantity in planning need to be more clearly set out to enable coordination. The draft National Water Act establishes that the plan is to be the basis for all water resources management activity. As the utility of water entitlements is dependent on water quality, there should be a clear reference in the National Water Act to planning the improvement and maintenance of water quality. A link needs to be made between the classification process pursuant to PP 82/2001 and planning under the National Water Act both in terms of procedure and substance. For instance, the entity that creates the inventory and formulates the plan for the river basin (assuming this is done by one authority) should also classify the water in terms of its quality. Alternatively, clear lines of communication between the authorities responsible for water quality and quantity need to be established. Public participation in classifying water resources The inclusion of community expectations in water resources planning is fundamental to the approach envisaged in integrated water resources management. Water use may influence water quality and the allocation of water in turn needs to accommodate competing interests. Procedure to guarantee public participation in the classification of waters needs to be set out. It should include the time period to allow adequate time for public discussion. Stakeholders could include planners, regulators, the scientific community, users (such as industry and farmers), residents and non-government organisations. It is conceivable that opinion within the community may differ regarding the value to be attributed to a water body. For example, a small business that wants water for use in their industrial processes may not agree with householders who want water that can be used as drinking water. The issues are likely to be complex and require an effective process of consultation, as often a benefit to one sector of the community will be a cost to another. The process should include a statutory period for the making of written submissions as well as the holding of information and discussion forums. Planning efforts, which truly involve all legitimate interests, are likely to require facilitated processes over a considerable time. Through the process, however, awareness of water quality issues is likely to grow together with a sense of community ownership and responsibility for their local water resources. As a bottom line, public participation is important to ensure that water bodies are actually valued. At present, there is actually no obligation imposed upon any particular authority within government to classify water bodies.14
14 The experience
in the EC has also been that where there is no duty to designate (for example, the directive on Freshwater Fish and Shell Fish), the main effect of a directive is to increase sampling and monitoring Ball S and Bell S, Environmental Law – The Law and Policy Relating to the Protection of the Environment (4th Ed) Blackstone Press Ltd 1997 London at p. 442
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AMBIENT WATER QUALITY STANDARDS – CRITERIA, OBJECTIVES AND INDICATORS National ambient standards To sustain the classification of a watercourse, a certain ambient level of water quality must not be exceeded. The ambient water quality standard, that is, the level of desired water quality, is the cornerstone for implementation of water quality laws. The experience in other countries is that standard setting is a difficult and intensive process and requires clear national policy.15 Given the diversity of environments throughout Indonesia, a balance needs to be struck between flexibility and a need for national consistency in the setting of ambient water quality standards. A water quality standard is defined in PP 82/2001 as: the measurement of the limit or level of content of organisms, substances, energy or components that exist or should exist and/or elements of pollution that indicate the existence of any organism, substances, energy or other components and/or elements of pollution that are in water. (art 1(9))
Minimum ambient water quality standards for those water bodies that have been classified were set up in PP 20/1990 (art 8 and appendix). Minimum ambient water quality standards for a water classification have been retained in PP 82/2001 (art 10) and are established by the Minister for the Environment (art 11(2)). The only variation that is expressly allowed is a variation to determine standards that are more stringent to the criteria set out by the Minister (art 11(1) and art 12 (1)). Criteria PP 82/2001 introduces the concept of “water quality criteria” defined as “a measures that indicates the water quality level that is assessed as appropriate for a classification” (art 1(7)). It states that criteria for each of the four classifications are to be contained in the appendix to the regulation (art 8(2)). The criteria appear to be more numeric than narrative although the appendix has not been reviewed for the purpose of the report.16 There is also no explanation of the different roles played by physical, chemical and biological criteria. There is however a statement in the elucidation of article 14 to the effect that an example of parameters that have not yet been included in criteria of water quality are bio-indicators and indicators of toxicity. This is an important omission as experience has shown, for example, in the USA that biological criteria are particularly useful in assessing water quality and that they are more comprehensive, sensitive, and objective assessment than chemical criteria.17 In a previous draft, the elucidation had stated that criteria are to take the form of chemical, physical or biological parameters. The inclusion of biological parameters could have been a significant step towards the integration of ecological considerations into decision-making. Ambient standards at the district level There is little detail in PP 82/2001 on the process to be followed in the setting of ambient water quality standards. Either the national standard for the water classification is simply adopted or an investigation is undertaken to determine whether a more stringent standard is required. It is stated that ambient water 15 Savage RH, “Clean Water Act Reauthorization - The State’s Perspective National Water Resources Regulation
Where is the Environmental Pendulum Now?” Holme H (ed), American Society of Civil Engineers New York 1994 pp. 34-52 at p.40. 16 In other countries such as the USA there has been a call for narrative as well as numeric criteria: Ibid. 17 Karr JR, “Clean Water Is Not Enough” in Holme H (ed), American Society of Civil Engineers New York 1994 pp. 79-95 at p.83
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quality standards for each water body are to be based on the results of investigation and the classification of the water body (art 10). A Decision of the Minister (Kepmen) is to be prepared on this aspect (art 11(2) & 12(3)). It can be seen that PP 82/2001 does not provide any detail concerning the decision making process in setting ambient standards. The Kepmen that is to be prepared for the setting of water quality standards provides an opportunity to identify the process, to list the considerations that need to be taken into account and to detail stakeholder involvement. This would contribute to a shared commitment to a water quality program as well as an understanding of how ambient standards adopted by district government relate to the criteria established by central government. As these aspects will be contained in a Kepmen, which is not a source of law, there will be no legal obligation in relation to any of these aspects. Indicators Indicators have been described as “simple measures that represent key components of the system, and have meaning beyond the attributes that are directly measured.” 18 Indicators can be used in monitoring water quality and assessing environmental conditions within a river basin. They may include the following: physical, biological and chemical properties that are normally present in water that can be monitored for a change in concentration, quantity or quality, which can be linked to a change in value; and physical, biological and chemical properties that are not normally present, but if detected in certain concentrations or quantities can be used to identify a change in or effect on a value.19 Indicators can indicate a condition or a trend. They can also focus on ecological functions such as stability, resilience and sensitivity within a catchment.20 The most direct measure for assessing biological integrity is to through biological indicators that assess species richness, species composition, population sizes, and trophic composition of resident organisms (biota).21 Biological indicators are significant as they can be the ultimate test of ecological health through, for example, the return of fish species. Thus the inclusion of biological indicators could have set the stage for the taking into account of ecological considerations in water quality management.22
18 Aspinall R and Pearson D, “Integrated Geographical Assessment on Environmental Condition in Water Catchments:
Linking Landscape Ecology, Environmental Modelling and GIS” Journal of Environmental Management August 2000, Vol 59 No.4 pp.299-317 at p.299. 19 Australian and New Zealand Environment and Conservation Council, Guidelines for Fresh and Marine Water Quality, November 1992 p.1-5. 20 Aspinall R and Pearson D, “Integrated Geographical Assessment on Environmental Condition in Water Catchments: Linking Landscape Ecology, Environmental Modelling and GIS” Journal of Environmental Management August 2000, Vol 59 No.4 pp.299-317 at p.299. 21 Karr JR, “Clean Water Is Not Enough” in Holme H (ed) American Society of Civil Engineers New York 1994 pp. 79-95 p.89. Biological integrity has been defined by the US EPA to be “the condition of the aquatic community inhabiting unimpaired water bodies of a specified habitat as measured by community structure and function”. An aquatic community is “an association of interacting populations of aquatic organisms in a given water body or habitat” (EPA 1990). 22 The appropriate use of indicators is a common problem worldwide, as the development of biological assessment techniques applicable to the protection of aquatic ecosystems is in its infancy. The 1992 Dublin International Conference on Water and the Environment (ICWE) proposed the development and application of water quality criteria for ecosystems and health protection at the international, national, provincial and local level - Young GJ, Dooge JCI and Rodda JC. Global Water Resource Issues Cambridge University Press, UK, (1994) at p.76 (table 18). The ICWE conference recommended that the traditional emphasis on chemical indicators of water quality be supplemented by more comprehensive indicators based on the total properties of a water body, including the physical, chemical,
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There is no definition or explanation of the role of indicators in PP 82/2001. In a previous draft, the elucidation of the use of criteria in the classification of water bodies had referred to the use of indicators/measurement/parameters in the measurement of criteria, which were stated to be physical, chemical or biological. PP 82/2001 uses the term “parameter”, although it is not defined. Article 1(5) defines water quality as “the condition of the quality of water that is measured or investigated based on certain parameters and methodology based on legislation.” THE ESTABLISHMENT OF A WATER QUALITY MANAGEMENT STRATEGY A water quality management strategy is the means for achieving the desired level of water quality in a particular water body. A strategy needs to explain how water quality standards/objectives are to be achieved. Ideally, a strategy should identify key community values and develop targets to protect them. A single watershed will usually have many reasons for water quality degradation, arising from both point sources and non point sources, so an important principle of watershed management is that it be holistic. PP 82/2001 does not specifically provide for the development of a water quality strategy on a watershed basis. Water quality strategy formulation PP 20/1990 had set out the following steps in the establishment of a water quality strategy: (a) Classify the beneficial use of water body (art 10(1)(a)) and allocate the water quality standard required for that use (art 10(1)(b)) (b) If the quality of water is lower than the water quality standard for the classification, the governor shall establish a program to raise the quality of water (art 11) (c) If the quality of water meets the water quality standard for the classification, the governor shall establish a program to raise the level of the classification (art 12) (d) Control shall be exercised over water pollution (art 13) (e) The capability to assimilate pollution loads shall be determined (art 14). In addition, PP 20/1990 provided that the Minister was to determine effluent quality standards (art 15) and the governor was to review ambient water quality standards, the capability to assimilate pollution loads, and the liquid waste quality standards, at least once in every five years (art 1). As can be seen, this was a bare outline for strategy making. PP 20/1990 did not detail how the governor was to establish the program or what it was to contain. There was no linkage between the steps. In PP 82/2001, a reference in an earlier draft to a status assessment based on an inventory has been deleted. There is, however, an unrelated section that establishes a role for an inventory of sources of pollution to be implemented in the framework of the control of water pollution, including the monitoring of water quality and identification of sources of pollution and other factors that may cause a change in water quality (arts 20 and 21). The process for establishing a strategy is stated as follows:
biological, radiological and ecological parameters of the water and the material it carries Young GJ, Dooge JCI and Rodda JC, at p.73
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A status assessment is to be made by comparing the quality of water with the water quality standard. It will be considered to be polluted if the quality of water does not meet the standard and will be considered of proper quality if it meets the standard (art 14(1)). A pedoman is to be issued by the Minister to provide guidance for assessing the water quality status (art 14(2)). It is stated that if water quality is poor then the relevant level of government (both central and regional) is to carry out a pollution control program and restore water quality through the establishment of water quality objectives (art 15(1)). There is no obligation, however, in this regard. It is also stated that if the water quality standard is already met, then government is to defend and increase water quality (art 15(2)). Again, there is no obligation in this regard.
It is notable that there is no mention of the river basin providing the hydrological basis for a water quality management strategy. Thus, the strategy formulation does not directly relate to the planning processes referred to in the draft National Water Act. It therefore neglects to set up a system for integrating the control of water quality with water quantity issues. A prerequisite for linking water quality objectives and the means for their achievement is that there is sufficient data in respect to a particular river basin. The establishment of a water quality database and the estimation of future water quality are scientifically and technically complex operations. There should be a means to share information on a watershed basis and a linkage both in terms of procedure and institutional coordination between the water resource plan and the water quality strategy through inventory making, setting the boundaries of the river basin and the formulation of the plan. Another serious omission is that PP 82/2001 does not actually set out the content of the strategy. For example, the regulation could state that a strategy must define the water quality priorities and articulate strategies to achieve them, specifying both short term and medium term goals and the required resources. The regulation could also require the strategy to contain an implementation schedule including the adoption of standards, regulations and policies, the construction of new facilities, sources of financial support, maintenance of systems and the monitoring of progress. The role of objectives To assist in strategy making, the concept of objectives, which have been briefly mentioned in PP 82/2001, could be developed further. Water quality objectives have been defined in the elucidation of article 15(1) as: The level of water quality that is planned for over a certain period of time through the implementation of a work plan for the control of pollution and the restoration of water quality.
In PP82/2001 there is a reference to the use of carrying capacity assessment to determine water quality objectives but without further explanation (art 23(3)e.). There is no explanation as to how an objective is to be established and what it is to consist of. An objective is usually considered to be a numerical concentration or narrative statement which has been established to support and to protect the designated use of water at a specific site, river basin or part thereof. It is different to a standard, as it is not recognised as being enforceable. The baseline of an objective is the criteria together with information on water uses
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and site-specific factors.23 The formulation of an objective is not a scientific process but a political process that requires an assessment of national and local priorities. An approach to set objectives could utilise two stages. Firstly, each water body could be assessed according to its specific characteristics and relevant criteria and secondly, it could be given an objective that becomes the goal for management action. This approach would only work, however, if the setting of criteria were freed from societal considerations. Objectives take the recommended criteria into account together with other considerations such as social, cultural, economic or political constraints. 24 They can then be formulated as a set of indicators to define the target value for key ambient quality parameters. Objectives can be used:25 - to evaluate existing conditions; - as a basis for establishing load limits; and - as a yardstick for measuring changes over time. As the setting of objectives takes social and economic considerations into account there should be stakeholder involvement, using a similar mechanism to that adopted in the classification of the water body. This would facilitate the integration of environmental, economic and social concerns and contribute to a shared commitment water quality. Carrying capacity Mention should be made of the role that the concept of carrying capacity (daya tampung beban) assumes in PP 82/2001in relation to the control of water pollution. Carrying capacity is defined as “the capacity of a water resource to receive a pollution load without becoming polluted” (art 1(13). PP 82/2001 states that it is to be used for (art 23(3)). location licences managing water resources Spatial planning Licensing the disposal of liquid waste Setting water quality objectives and the work program for the control of water pollution. A pedoman is to be created regarding the calculation of carrying capacity (art 23(4)). There is no further explanation, for example, regarding how carrying capacity is to be used in relation to location licenses or spatial planning. Some comments can be made regarding the use of the concept of carrying capacity. Firstly, the development of carrying capacity models to predict the site specific effect of various actions on water quality requires extensive and high quality quantitative and qualitative data on the aquatic environment and is usually determined through the use of computer models. Cheaper modelling techniques that rely on conservative models using worst-case scenarios can only be avoided by attempting more complex and, US, Enderlein RE and Williams WP, “Water Quality Requirements” in Helmer R and Hespanhol I, Water Pollution Control – A Guide to the Use of Water Quality Management Principles UNEP, Water Supply and Sanitation Collaborative Project and WHO E&F Spon London 1997 pp.11-40 at p.14. 24 Australian and New Zealand Guidelines for Fresh and Marine Water Quality draft National Water Quality Management Strategy, Overview July 1999 at p.6. 25 World Bank, Integrated Waste Water Management - [complete reference] at p. 132 23 Enderlein
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therefore, more costly analysis of cause and effect.26 For these reasons it is unlikely that district level government will have the human or financial resources to assess carrying capacity. It is difficult to envisage the enforcement of an obligation imposed on each level of government to refer the task of calculating carrying capacity up to the next level of government if they do not have capacity to undertake the assessment. Secondly, the concept of carrying capacity is now under review in some circles of water resources management. A difficulty related to the application of computer models is that an upper limit identified through modelling may become “the goal” thereby not allowing for anything in reserve. The carrying capacity could then be exceeded if, the situation changed because of the establishment of new industry or if standards were to be reviewed downwards.27 Another criticism is that carrying capacity contains an assumption that water bodies are able to self-clean. It does not allow for the effects of stock pollution in the form of heavy metals and other toxic substances that remain in the environment over a long time and may work their way up the food chain. Public participation in strategy making The process of strategy making does not contain provisions for public participation. Even the provisions for granting public access to the status report are not couched in clear terms. There is nothing to say that the report is to be published although there is a right to every person to obtain information on the status of water quality. This should be rectified as far as possible. It is generally recognised that effective environmental management depends on making choices that are understood and assessed by communities and the public as well as specialists. Public participation may also assist strategy making by building broad-based alliances to help solve problems cooperatively. A transparent process of strategy formulation is likely to generate understanding on behalf of those that will be the subject of regulation and it is likely to encourage local communities to participate in monitoring or enforcement at later dates. It is also essential to avoid a capturing of the process by special interest groups. Strategies for improving water quality In Indonesia, particularly in Java, high levels of pollution have already seriously damaged many waterways. PP 82/2001 does start to address strategy making to improve rather than just protect water quality. It is, however, non-specific regarding water quality improvement. Regulatory provision is therefore needed to set out the process through which an improvement programme is formulated and implemented. One way of doing this would be to make specific provision for the formulation of a strategy to improve water quality within strategy formulation. WATER QUALITY CONTROL MEASURES Effluent standards In Indonesia, effluent control has been provided for through the issuing of effluent-based limitations or standards in PP 20/1990 known as the Liquid Waste Quality Standards. This system has been retained in PP 82/2001 where discharge standards are defined as: The measure of the limit of polluting substances and/or the content of pollution and/or the total substances that can exist in liquid waste and be disposed or released to a water resource from a business or activity. (art 1(15))
26 Australian 27 Interview
Water Quality Guidelines for Fresh and Marine Waters 1992 at p. 1-6. with John Court, Leader of PCI Project, East Java, 1998.
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PP 82/2001 states that effluent standards are to be determined by Ministerial Decree with attention to suggestions received from related sectors (art 21(1)). These standards can be made more stringent by provincial government (art 21(2)). Maximum limits were established nationally, in the Decree of the State Minister for the Environment No. KEP-51/MENLH/10/1995 dated October 23, 1995 ("the 1995 Decree") for the following industries:28 Caustic soda/chlorine, metal coating, leather tanning, palm oil, pulp and paper, rubber, sugar, tapioca, textile, urea/nitrogen fertiliser, ethanol, mono-sodium glutamate (MSG), plywood, foods, light drinks, soap detergent and vegetable oil products, beer, dry cell batteries, paints, pharmacy, pesticides.
The effluent limitations are technology-based effluent limitations representing the best treatment a facility within a particular industry can install within the economic means of the industry as a whole. The national liquid waste quality standards vary from industry to industry. In this way, adjustments have been made to reflect the economic circumstances of particular industries within Indonesia. Where technology-based effluent limitations are in use there is no relationship between the emission levels and the environmental outcome at a particular site. PP 82/2001 opens the way for the tailoring of emissions to specific water bodies through the possibility of provincial government setting effluent standards that are higher than the national standards. Thus, effluent levels could be raised to take into account the effect on downstream populations or ecosystems or the impact on the marine environment at the mouth of a river flowing directly to the sea.29 The emphasis on carrying capacity also allows for greater consideration of site-specific needs. However, PP 82/2001 offers no guidance in regard to the factors to be considered in setting effluent standards that are higher than the national standards. Provincial regulations regarding standards are likely to take a sectoral approach that mirrors the approach taken nationally. For example, Decision of the Governor Yogyakarta No. 65 of 1999 regarding Liquid Waste Quality Standards for the Health Sector (Keputusan Gubernur Kepala DIY No.65 Tahun 1999 Baku Mutu Limbah Cair bagi Kegiatan Pelayanan Kesehatan Di Propinsi DIY) establishes liquid waste quality standards for the health sector. It establishes an obligation that the standards are not to be exceeded (art 2(4)) and states that stricter standards may be imposed if an AMDAL so requires (art 2(3)). Similarly, the Decision of the Governor Yogyakarta No. No. 281/KPTS/1998 regarding Liquid Waste Quality Standards for the Health Sector (Keputusan Gubernur Kepala DIY No. 281/KPTS/1998 Baku Mutu Limbah Cair Bagi Kegiatan Industri di Propinsi DIY) sets out in standards for the discharge of liquid waste for certain industrial sectors, namely: electro plating, tanneries, sugar, tapioca, textiles, alcohol, milk and ice cream, light drinks, soap, paint, abattoirs, processing of fruit and vegetables, tahu, tempeh and kecap, batik, printing and workshops in Annexure 1 (art 2(1)). Those industries that are not listed are required to comply with the standards listed in Annexure 2. The standards include organic waste as well as heavy metals and toxic chemicals. An obligation is imposed not to exceed the level cited and if an AMDAL so recommends, to comply with more stringent standards (arts 2(3)). A similar arrangement is made in relation to the tourism sector.
28 Article
2 As has been done in USA and Canada. See Commission on Sustainable Development, Report Entitled Comprehensive Assessment of the Freshwater Resources of the World Executive Summary 1997 Pt 114 www.un.org/News/Press/docs/endev401.html 29
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Thus, it can be seen that the system of standard setting relies on the AMDAL to introduce a site-specific approach to setting discharge levels. This leads to the question as to how precisely the AMDAL regulations require a site-specific approach to setting the discharge levels? Is it sufficient to rely upon the developer to propose a management system or is there another way to ensure that a site-specific approach is taken? Prohibitions PP 82/2001 imposes prohibitions against the disposal of solid or gaseous waste to water or water resources (art 42). It does not, however, contain a prohibition against discharging liquid waste to water or a more general prohibition against polluting the waterways. It is unlikely additional prohibitions will be introduced at the regional level. For example in Yogya Perda 3/97, the only prohibition that is established in the regulation is a prohibition imposed upon the holder of a licence against disposal of liquid waste to the earth (art 15(e)). Obligations The prohibitions mentioned above are supplemented with a number of obligations such as obligations to:
report (arts 27-29, 34(2)) take care of/protect the function of water, prevent and handle pollution and restore water quality (art 31) provide true and correction information (art 32) preserve the quality of water and control the pollution of water resources (art 34) prevent and handle the occurrence of pollution (art 37) comply with liquid waste disposal standards stipulated in a licence (art 38(1)).
In addition, there is an obligation imposed on every person who disposes of liquid waste to obtain a licence from the mayor (art 40(1)). Licensing Licensing pollution has been discussed in Chapter Five in relation to Act No. 23 of 1997 regarding the Environmental Management. Previously, the only licence that has been specifically designed to address the disposal of effluent is that provided for under PP 20/1990, pursuant to which the governor was empowered to issue a licence. It stated that the discharge of liquid waste to water shall be allowed by a licence issued by the governor (art 26(1)). In practice, few water pollution control licences have been issued. Inquiries with the East Java BAPEDALDA in late 2000 indicated that four licences had been issued. An additional 80 licences were planned to be issued by July 2001.30 Who is to issue water pollution licences? Historically an obstacle for licensing has been caused by the failure to clearly allocate an environmental licensing function to a government body within regional government. PP 20/1990 stated that it is the responsibility of the governor to issue a pollution licence (art 26(1)). This in turn was to be included in the Hinderance Ordinance (Undang-undang Gangguan – Hinderordonnantie) (HO)) issued at the district level (art 26(2)), which necessitated coordination between the provincial level and the district level of government. The PP 20/1990 did not state how coordination was to be achieved. 30 29
November 2000, information provided by BAPEDALDA East Java. The licences relate to discharges of BOD, COD, TSS and pH in the following industries: monosodium glutamate, paper production and leather tanning.
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Regional autonomy has moved the responsibility for licensing the discharge of industrial effluent down to district government. The devolution of responsibility will avoid the duplication involved with having both a discharge licence and a HO. PP 82/2001 states that a licence is to be obtained from the mayor (art 40(1)). It does not, however, state which government body within district government will be responsible for licensing. Unless a specific allocation of authority is made to the BAPEDALDAs, it will remain with the relevant sectoral departments (dinas) such as the Department of Industry. The role of the dinas is essentially sectoral in that they manage the resources of the sector and for this reason they are likely to have a sectoral bias. It is questionable whether they should also be charged with ensuring that sufficiently stringent environmentally protective conditions are contained in sectoral licences. The need to clarify who is responsible for issuing of water pollution licenses is also apparent at the regional level. For example, Provincial Regulation No. 3 of 1997 regarding the Control of the Disposal of Liquid Waste (Peraturan Daerah DIY No. 3 Tahun 1997 Pengendalian Pembuangan Limbah Cair) (Yogya Perda 3/97), which is the primary regulation relating to the control of discharge of liquid waste imposes an obligation upon every person who disposes of liquid waste to water to obtain a licence (art 3(1)) from the Minister for the Environment (art 3(2). Clearly, this section needs amendment so as to state the relevant agency at the district level that is to provide pollution licences. Who should be required to have a licence? PP 82/2001 states that every industry or activity, which releases liquid waste to water, must be authorised to do so with a licence. This indicates that there is no prioritisation of industries for licensing. Such an approach does not address the need for priorities in environmental management. 31 Taking into account the limited resources available for licensing in Indonesia, it would be preferable to have tiered licensing obligations. This lack of focus could be rectified at the regional level. For example, Yogya Perda 3/97 imposes an obligation upon every person who disposes of liquid waste to water to obtain a licence (art 3(1)). This obligation is repeated in an obligation imposed on all businesses that dispose of liquid waste to water to possess a licence (art 6(1)). Perda 3/97, however, also states that the industries that are required to obtain a licence are to be determined by the governor (art 6(2)). Thus it was made possible for the governor to draw up a list of priority industries for licensing. Decision of the Governor No. 24 of 2000 regarding Activities That Must be Licensed for the Disposal of Liquid Waste (Keputusan Gubernur Kepala DIY No. 24 Tahun 2000 Kegiatan Wajib Izin Pembuangan Limbah Cair Di Propinsi Daerah Istimewa Yogyakarta) (Perda 24/2000) sets out the types of industries and activities that require a license. It reiterates the obligation to obtain a license for the disposal of liquid waste (art 1(1)). It says that identification of the businesses and activities that need to obtain a license has been based on the type and size of the activity and or the amount of waste generated (art 1(2)). The types of activities are industry, tourism, and health as listed in the annexure (art 1(3)) and include individuals and legal bodies (art 1 (6)). Similar developments could conceivably occur throughout the regions. It would be
31 Which
is recognised by the The World Bank Group, United Nations Industrial Development Organisation and the United Nations Environment Program in Pollution Prevention and Abatement Handbook, 1998 Toward Cleaner Production. The World Bank Group Washington DC at p.3 where they describe the change in emphasis from pollution control to environmental management at p.3.
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preferable, however, for priority industries to be determined nationally as this would be both more efficient and lead to greater national consistency. What is to be contained in the licence? (a) Non-licence conditions PP 82/2001 relies on licensing to impose obligations upon polluting industry. In acknowledgement of the reality that in practice there is very limited licensing, obligations regarding pollution control could be imposed irrespective of whether or not a licence has been granted. This can be done through the drafting of obligations imposed upon any person who discharges waste. Non-licence obligations have been imposed on those responsible for industrial activities through Decree of the State Minister for of Environmental Affairs No. KEP-51/MENLH/10/1995 dated October 23 1995.32 Yogya Perda 3/97 relies on non-licence based obligations. Obligations are imposed upon the operator to build a drain, to simplify the taking of samples and the measurement of the loss of waste (art 10). There is also an obligation to take daily measurements of the loss of waste, to provide these notes to the Governor every three months (art 11), and to test waste quality every month in a laboratory appointed by the governor (art 12(1). The method of taking samples and carrying out the investigation is to be the subject of further regulation (art 12(2)). The results of the testing of the waste are to be forwarded to the governor every month (art 12(3)). Obligations are also imposed to assist the government in their tasks, such as, the provision of access to the premises and the provision of correct information, (art 13) the handing over of a report every three months to the governor together with a declaration that the report is correct (art 14). (b) Licence conditions Conditions in a licence can be tailored to the needs of the business to encourage compliance. A licence can also take into account site-specific conditions. Within administrative law, a power to impose conditions in a licence is limited; it must be referable to a legislative grant of power. Thus, the conditions that may be imposed by a licensing authority need to be cited in legislation that confers authority to issue the licence. The act or regulation could state that a licence must contain certain conditions and may contain certain other conditions. The compulsory conditions could include compliance with: (i) effluent standards; (ii) self-monitoring, record keeping and reporting requirements; (iii) a pollution control implementation schedule; and (iv) an emergency response plan. Further detail could be provided in relation to each of the above. For example, in relation to self-monitoring, there could be an explanation of what self-monitoring includes e.g.: the operation or maintenance of premises or plant; discharges from premises; ambient conditions in or outside premises; and anything 32 In
article 6 duties are established to: a. not exceed liquid waste quality standards b. make arrangements of waste water channels and water supply c. install a gauge to measure the flowing rate of liquid d. not dilute liquid waste e. take records of monthly production f. submit a report on the records of daily debit, content of waste and daily production at least once in three months to BAPEDAL.
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required by the conditions of the licence. To enable the introduction of market-based instruments there would need to be a power to impose conditions that will allow a market mechanism to become part of the licence such as the payment of an annual licence fee or load-based fees and the maintenance of records required to calculate fees. The authorising act or regulation could also grant discretionary authority to impose other conditions, such as compliance with an environmental audit, the conduct of a study into an aspect of environmental impact, the introduction of certain management practices or a requirement to introduce a pollution reduction program. PP 82/2001 lists minimum conditions that must be contained in a licence, which in summary are conditions regarding (art 38 (2)): (a) (b) (c) (d) (e) (f) (g) (h) (i)
an obligation to process waste the quality and quantity of waste able to be disposed; the method of disposal; the means and procedure to manage emergencies; the monitoring of the quality and loss of waste; inclusion of the findings of an AMDAL in the licence; a prohibition against sudden disposal of waste; a prohibition against the breach of quality limits contained in the licence; and an obligation to carry out self-monitoring and to report the results of the monitoring.
The Minister is to issue a pedoman concerning licence conditions and the method of issuing licences (art 41(7)). This raises the issue as to whether the subject matter for licence conditions should be contained in a mere guideline or in a legal instrument. To ensure consistency with administrative law principles, it is suggested that the grant of authority to impose licence conditions should be contained in a legal instrument that will automatically allow for the imposition of conditions at the district level of government. This approach takes into account the lack of human resources at the district level to draft Perda for such matters. Indeed, at present legal provision for licence conditions at the district level is less detailed than at the national level. For example the Yogya Perda 3/97 simply states that obligations are imposed upon every holder of a licence to obey liquid waste quality standards, not to dilute, to report any change in their activities and to possess a discharge outlet as determined by the technical agency (art 15 (a)-(d)). How is the licence application to be processed? Currently, there is nothing within PP 82/2001 on the licensing procedure. It is likely that provision for licensing procedure has already been made at least at the provincial level. For example, in Yogyakarta, the Decision of the Governor No. 32 of 2000 regarding Technical Directions for the Implementation of Regional Regulation No. 3 of 1997 on the Control of the Disposal of Liquid Waste (Keputusan Gubernur Kepala DIY No. 32 Tahun 2000 tentang tetunjuk Teknis Pelaksanaan Peraturan Daerah Propinsi DIY No. 3 Tahun 1997 Tentang Pendendalian Pembuangan Limbah Cair) states that every enterprise or activity is obliged to obtain a license, based on the size of the enterprise or activity and the amount of waste (art 1(2)). This includes industry, health, tourism, and other activities. It goes on to state that the application for the license must contain certain features both technical and administrative (art 2(2)), and it is to follow a certain formula (art 3(1)(a)). Whether the application is adequate, is to be determined by a team formed by the head of BAPEDALDA (art 2(3)). If so, the license is to be given within 45 working days (art 3(2)(a)). If the
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application is deficient, a response is to be given within 30 days (art 3(2)(b)). There is a licence fee based on the quantity and quality of the waste, as set by the head of BAPEDALDA (art 4(4). It can be seen, however, that neither the national or provincial regulation mentions the factors that the regulatory authority is required take into account in reaching a decision on a licence application. This inhibits legal accountability as it means that there are no boundaries imposed on the exercise of discretion. Such matters could be stated to include:33 The objectives of the National Water Act and the relevant regulations The pollution being or likely to be caused by the activity to be licensed The practical measures that can be taken to prevent, control, abate or mitigate the pollution or protect the environment from harm as a result of pollution caused by the activity Any scheme involving economic measures as an instrument to control or provide incentives to limit discharges Any relevant environmental impact statement relating to the activity Waste reduction plans prepared by the applicant or as practised in the industry Methods for handling sludge from liquid waste processing Public submissions received in relation to the application. Separate provision could be made for other matters that the authority is able or permitted to take into account. This level of control over the exercise of discretion would provide guidance to officials and impose a level of accountability in the licensing process. It would help to avoid the tendency that authorities may otherwise have to weight interests other than environmental ones more than they should under pressure of local circumstances.34 It could also facilitate the appeal of licensing decisions by the applicant (if an appeal procedure is provided) and administrative review of licensing decisions, should third parties be unsatisfied with a particular licensing decision (should a review process be available). Public participation in licensing pollution discharges There is no provision in PP 82/2001 for public participation in licensing.
33 Some
of these factors are taken for the Protection of the Environment Operations Act (NSW) 1997 (section 45).
34 This was the experience in Holland: Kuik OJ, Nadkarni MV, Oosterhuis FH, Sastry GS, Akkerman AE,
Pollution Control in the South and North Sage Publications New Delhi 1997 at p.131
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GROUNDWATER QUALITY National law Currently there is no national legislation specifically on the protection of groundwater quality.35 However, there are a number of regulations that touch on groundwater quality issues including the following: (a) Ministerial Regulation of the Minister for Health No. 528/MEN.KES/PER/XII/1982 regarding the Quality of Groundwater Connected with Health (Peraturan Menteri Kesehatan No. 528 MEN.KES/PER/XII/1982 tentang Kualitas Air Tanah Yang Berhubungan Dengan Kesehatan) (“the Groundwater Quality Regulation”). (b) Ministerial Regulation of the Minister for Mines and Energy No.02.P/101/M.PE/1994 regarding the Administration of Groundwater (Peraturan Menteri Pertambangan Dan Energi No.02.P/101/M.PE/1994 tentang Pengurusan Administratif Air Bawah Tanah) (“the Groundwater Administration Regulation”) Obstacles to the comprehensive inclusion of groundwater in the water quality control program in Indonesia include: The divided sectoral responsibility between the Minister for Mining and Energy who is responsible for groundwater and the Minister for Settlement and Regional Infrastructure who is responsible for water resources. An historical emphasis on groundwater quantity rather than quality. The absence of law relating to the assessment or remediation of contaminated land Classification of groundwater PP 82/2001 makes reference to water resources in protected forests, springs outside protected forests and aquifers, stating that the provision for the management of ground water quality is made by separate regulation (arts 4(3)&(5)). Nothing further is stated regarding water resources in protected forests or springs outside protected forests. The Groundwater Quality Regulation classifies ground water use for household purposes as Zone A, B, C, D and the Discarded Zone (Zone Pembuangan) as follows (arts 1& 2).
implications of this deficiency is apparent when one considers that in relation to Agenda 21’s program area for The Protection Of Water Resources, Water Quality And Aquatic Ecosystems, activities identified for the development and application of groundwater protection include the prevention of aquifer pollution through the regulation of toxic substances that permeate the ground and the establishment of protection zones in groundwater recharge and abstraction areas; the design and management of landfills based upon sound hydro geologic information and impact assessment, using the best practicable and best available technology; and water-quality monitoring, as needed, of surface and groundwater potentially affected by sites storing toxic and hazardous materials.(18.40(D)) 35 The
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Zone A
Non-residential area where groundwater is used as a source of pure water (air baku) as a spring or artesian or non-artesian water
Zone B
Residential area where groundwater is used as a source of pure water (air baku).
Zone C
Residential area where groundwater is used for washing and farming without any need for boiling first
Zone D
Residential area where groundwater is used for various purposes related to health
Disposal Zone (Zone Pembuangan):
A specified zone used as a disposal site for discarded objects both solid and liquid.
The water quality for Zone A-C is to be determined by the Minister for Health (art 3). Similarly with PP82/2001, there is no reference to the process of classification of the quality of groundwater resources. Provisions regarding the making of an inventory of groundwater resources and the devising of a strategy to protect groundwater quality are also lacking from national laws and regulations. Obligations on citizens PP 82/2001 does not contain any obligations that specifically relate to groundwater quality. A licensing framework is, however, set up to regulate the disposal of liquid waste to the ground (arts 35 - 36). Obligations imposed upon government According to the Groundwater Quality Regulation, disposal zones are to be in places where groundwater pollution will not result (art 7(4)). This does not, however, impose a duty on government to ensure that groundwater pollution does not result in such zones. General obligations to maintain and protect groundwater are imposed through the Groundwater Protection Regulation in an organised and continuous manner (dipelihara dengan baik secara teratur dan terus menurus) (art 11). A pedoman is to be prepared by the Department of Health (Dinas Kesehatan) in this regard (art 11(3)). The Groundwater Protection Regulation states that the governor and mayor are to coordinate the oversight of groundwater quality (art 12(1)) and the Department of Health (Dinas Kesehatan) is to implement the oversight (art 12(2)). The oversight function is to include periodical investigation and analysis of groundwater quality and formulation of suggestions to prevent problems that arise (art 13). Fostering oversight is to be carried out at the Provincial Level by the Head of Kawwil of the Department of Health and at the District Level by the Head of the Office of the Department of Health (art 14). The Groundwater Administration Regulation also provides for oversight of pollution by the Director General of Geology and Mineral Resources in cooperation with the governor and the relevant provincial department (art 23(2)c.).
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Prohibitions PP 82/2001 does not contain a prohibition against the disposal or release of liquid waste to the earth or the dumping of solid waste. A licence issued by the mayor is, however, available for those business and activities that use liquid waste to benefit the soil (art 35(1)). There is nothing in PP 82/2001 that deals directly with this form of decision-making. Rather there is a reliance on the AMDAL assessment (art 35(2)) and the issuing of a pedoman by the Minister (art 35(3)). In the Groundwater Quality Regulation there is a provision to the effect that discarded solid and liquid objects that do not biodegrade are not to cover places that contain artesian water, free groundwater or Zones A, B, C or D except in Disposal Zones (art 5). Those that biodegrade naturally or are processed are not to be disposed of at Zone A or areas containing artesian water (art 6(1)) or areas where there is free groundwater from Zones B, C or D (art 6(2)). There are also provisions which state that things that pollute water are not to be placed in Zone A (art 7(1) Also things that things that are able to pollute groundwater or drains in Zones B, C and D are not to leak out (art 7(2)&(c)). The disposal of things that have been processed must fulfil physical and chemical conditions set by the Minister for Health and are not to cause groundwater pollution (art 9). Enforcement The Groundwater Quality Regulation contains enforcement provisions to the effect that whoever negligently breaches the obligations and prohibitions contained in the regulation so that they cause a disturbance or danger to health or the life of a person is to be liable to punishment according to article 203 of the Criminal Code (Kitab Undang-undang Hukum Pidana dan Peraturan Perundang-undangan). As PP 82/2001 does not contain any prohibitions regarding groundwater, it is of little effect in relation to enforcement. A prohibition against the disposal or release of liquid waste to the earth could have provided the basis of a prosecution for the pollution of groundwater. Contaminated groundwater will often be the result of the disposal of solid waste to land and this has not yet been provided for. Actions that lead to the contamination of groundwater are caught by the criminal enforcement provisions of UU 23/97. As discussed in Chapter 22 there are difficulties that are likely to arise in relation to proof of an offence of environmental pollution and this is likely to apply also to groundwater pollution. Often contaminated groundwater is caused by the passage of water through contaminated soil. Therefore, a lack of soil quality criteria may lead to difficulties with proof of causation. INSTITUTIONAL RESPONSIBILITY The sectoral spread of oversight responsibilities has been a cause for the poor implementation of water quality control. At the central level BAPEDAL has been concerned with surface water quality but neither BAPEDAL nor the Ministry for the Environment has been allocated a role in relation to groundwater. If the management of groundwater and surface quality is to be coordinated, systems of coordination will need to be established at the central, provincial and district levels. For example, in East Java, district offices of the Ministry of Public Works have monitored the ambient quality of rivers and streams, whilst representatives of the Ministry of Industry have had authority to enter 117
industrial firms for the purpose of taking samples of waste emissions. PP 82/2001 does not mention the institutional aspects of water quality management beyond setting out the level of government responsibility. Importantly it does not identify the lead agency within provincial and district government with responsibility for water quality. Responsibility for water quality is spread between sectoral agencies so that no single agency has ultimate responsibility. Oversight of water quality is provided for in the Regulation of the Minister for Public Works No. 45 of 1990 regarding The Control Of Water Quality In Water Resources (Peraturan Menteri Pekerjaan Umum No.: 45/PRT/1990 Tentang Pengendalian Mutu Air Pada Sumber-sumber Air) (“Regulation of the Minister for Public Works No. 45 of 1990”). This regulation is still in force. It provides for the collection of data based on water quality standards passed by the Minister for the Environment (art 7(2)). This data is to be used for considering the exploitation of water resources, the grant of waste disposal licences and assessing pollution levels (art 8). An integrated approach to the management of water quality requires clear lines of authority and mechanisms for coordination. There also needs to be a lead regulatory body that is concerned with the environmental outcome of sectoral activities and which has an independent voice in supervising, controlling and reporting on the environmental performance of both the private sector and public sector. This has not yet been provided. Other issues regarding the institutional arrangements arise from the absence of any mention in PP 82/2001 of the new institutions that will be created at the level of the river basin. MARKET-BASED INSTRUMENTS Market-based instruments have been mentioned in Chapter Five in relation to UU 23/97 where it was observed that there is no mention of market instruments in the Act, although there is a reference to “developing and applying instruments of a pre-emptive, preventative and proactive nature” (art 10 (e)). PP 82/2001 introduces a fee (retribusi) for the disposal of liquid waste through a government processing plant (art 24). This is to be the subject of a Perda issued by district government (art 24(2)). There is no mention of the factors to be taken into account in setting the level of the retribusi. For example, an earlier draft had stated that i is to be dependent on volume, pollution load, environmental risk and the parameters of the receiving water. Neither is there any reference to a pedoman being drafted by the Minister for the Environment. Thus, it is apparent that the details of market-based instruments have been left as a matter to be dealt with by district government as a subject for law making. As discussed in Chapter Five, in reference to Yogyakarta, at the provincial level market-based instruments are found in rudimentary form, designed essentially as a fee for service rather than as a pollution control measure. The extent to which regulations introducing market-based instruments have been introduced at the district level across Indonesia would be a valuable area for further research. CONCLUSIONS AND RECOMMENDATIONS Drafting PP 82/2001 provides a bare outline, leaving many details to be formulated in pedoman. Only technical aspects should be left formulation in guidelines. Whilst some matters that are referred in PP 82/2001 are technical in substance, others deal with aspects of water quality management that have a dimension of 118
public rights and governmental obligations. As discussed in Chapter Three, aspects of law making which have a dimension of public rights and governmental obligations, such as, inventory making, the classification of water resources, setting ambient water quality standards for particular water bodies and the determination of the status of a water body should be provided for in legal form, not in non-binding guidelines. Institutional responsibility PP 82/2001 is non-specific regarding institutional responsibility at the regional level. PP 82/2001 should identify the lead agency responsible for ensuring the implementation of water quality programs. It should also state which bodies within regional government are to be responsible for water quality management together with a procedure to ensure coordinated decision-making. Definitions In relation to the definitions contained in PP 82/2001, the definition of water does not adequately accommodate the concept of river basin management, as it does not include seawater in estuaries. The definition of water pollution is unnecessarily complex and should be simplified to facilitate enforcement. Environmental values PP 82/2001 does not provide for the adoption of environmental values in valuing water quality and in the classification process. The valuation of water is essentially human-centric as there is no value for the protection of aquatic life. Environmental values need to be built into the process of valuing water quality. In the classification process, a category for the protection of ecosystems should be established to support the conception of integrated water resources management. Classification There is insufficient detail in PP 82/2001 regarding the process of classifying water bodies. This is stated as being a matter to be dealt with in guidelines. It is, however, questionable whether some aspects of classification of water bodies are appropriate to be the subject of a guideline. Classification will need to deal with a wide range of matters including the procedure for inventory making, public access to information regarding the classification, public participation in the process and matters to be taken into account in the classification. Without a legal status to the procedure, there will be no legal force requiring regional governments to fully assume their responsibilities and no legal basis upon which to call decision-makers to account. Greater detail is required in the regulation regarding the process of classifying a water body. Detailed provisions to guarantee public participation in the classification of waters should be established. This detail should be contained in a legally binding instrument that can guarantee rights to public participation and accountability in decision-making. The minimum classifications for water use that are set out in the National Water Act needs to be linked to classification pursuant to PP 82/2001. More generally, a link needs to be made between the classification process pursuant to PP 82/2001 and planning under the National Water Act both in terms of procedure and substance. Criteria and indicators There is no explanation in PP 82/2001 of the relationship between criteria and indicators, nor is there a definition of the role of indicators. PP 82/2001 briefly mentions in the elucidation the concept of biological indicators but the role of biological indicators has not been fully set out. The relationship between criteria and indicators, a definition of indicators, and provision for the use of biological indicators therefore needs to 119
be established. Further guidelines issued by the Minister should specify the use of biological criteria in the making of an inventory and the investigation of water quality. Ambient standards There is little detail in PP 82/2001 on the procedure to be followed in the setting of ambient water quality standards. The regulation should set out the procedure for setting ambient water quality standards, list the considerations that need to be taken into account and provide procedures for stakeholder involvement. Strategy making PP 82/2001 does not set out the content of a water quality strategy. The process of strategy making lacks transparency and does not contain provisions for public participation. PP 82/2001 does not specifically address the formulation of a strategy for the improvement of water quality. Importantly, PP 82/2001 does not specifically provide for the development of a water quality strategy on a watershed basis. Thus, strategy formulation will not directly relate to the planning processes referred to in the National Water Act. It therefore, neglects to set up a system for integrating the control of water quality with water quantity. There is no mechanism for sharing of information on a watershed basis or linkage in terms of institutional coordination between the water resource plan and the water quality strategy, through inventory making, setting the boundaries of the river basin or the formulation of the plan. The regulation should set out the procedure for strategy making, including public participation provisions. It could state that a strategy must define water quality priorities and articulate strategies to achieve them, specifying both short term and medium term goals and the required resources. The regulation could also require the strategy to contain an implementation schedule including the adoption of standards, regulations and policies, the construction of new facilities, sources of financial support, maintenance of systems and the monitoring of progress. Regulatory provision is also needed to set out the process through which an improvement programme is formulated and implemented. One way of doing this would be to make specific provision for the formulation of a strategy to actually improve water quality. Integration between pollution control and water use The licensing of water use and effluent discharges have not been integrated. Whilst the need for water is to be included in the information accompanying the licence application, PP 82/2001 does not make a connection between using this information in formulating the conditions of the pollution licence and the licensing of water use. Standard setting Effluent quality standards are not based on a relationship between emission levels and the environmental outcome at a particular site. Hence, a primary measure for water pollution control does not relate to the site-specific needs of a particular catchment area and neither does it support integrated water resources management. The authority to impose effluent limitations that are more stringent than the national limitations gives discretion to decision-makers to tailor emissions to the needs of a particular water body. However, there is nothing to guide the use of this discretion, such as a list of factors to be taken into account in setting effluent standards. Thus, there is minimal legal accountability in this regard. The exercise of authority to increase effluent standards could to be elaborated in PP82/2001 and guided by a statement as to the factors that are to be taken into account in deciding whether to increase effluent standards for discharges at a particular location. Non-license based obligations 120
There is an over-reliance on licensing which does not allow for situations where licensing has not been implemented. Obligations outside licensing should be expanded to take into account limited institutional capacity to issue licences. Licensing The licensing obligation as a blanket obligation that does not take into account the limited resources faced by regional government. There is an ongoing failure to allocate responsibility for pollution licences in terms of identifying a particular institution within the relevant level of government. Authority to issue pollution licences needs to be allocated to a particular government agency or authority. It needs to be clarified whether pollution licenses are to remain as sectoral licences, with a reliance on the RKL/RPL and UKL/UPL, or whether there are to be separate cross-sectoral environmental licenses. The concept of tiered licensing should be introduced at the national level to acknowledge the reality of the enormous task involved in attempting to licence all industries and activities. Licence conditions To establish licensing powers that comply with administrative law, an act or regulation should grant power to the licensing authority to impose conditions. Thus, the Act or regulation should indicate the conditions a licence must contain as well as the conditions that can be imposed by the licensing authority in the exercise of their discretion. The authority to impose licence conditions should include a greater variety including the authority to introduce market-based measures, management programs for the prevention or minimisation of waste as well as measures to handle the disposal of sludge. The factors to be taken into account in licence decision-making also need to be listed in the regulation as a source of control over the exercise of discretion. Licensing procedure There is an absence of procedural detail in PP 82/2001 regarding licensing. This is likely to inhibit accountability in licensing decision-making. It also means procedures to guarantee the right to participate in licensing are absent. Market-based instruments The introduction of market-based instruments as effluent control measures is being seen as a matter to be dealt with by district government after the issuing of central government guidelines. As the burden of law making regarding market-based instruments is a heavy one, central government guidelines should be drafted and should be done so that they can be easily converted into district Perda. Groundwater It is acknowledged in PP 82/2001 that the control of groundwater quality is a topic that needs to be the subject of new national law. This law should contain a procedure for inventory making, the classification of the quality of groundwater resources and the devising of a strategy to protect groundwater quality. A regime for the management of groundwater quality should encompass both groundwater quality and quantity. It should also include procedures to coordinate the various agencies that have a concern with groundwater quality and quantity. Enforcement provisions and sanctions in pollution control should be drafted to readily apply to the specific characteristics of groundwater pollution.
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Issues relating to the control of groundwater quality are different to those relating to surface water quality, as groundwater pollution will often result from seepage of water through contaminated land, which in turn has usually resulted from the disposal or storage of solid waste or the dumping or spillage of liquid waste to the ground. Thus leads to the further issue of the need for national laws regarding the protection of soil quality.
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CHAPTER 8 - MARINE POLLUTION Introduction Marine pollution comes from many sources including land-based sources, ships, and the dumping of waste at sea. These sources of pollution needs to be considered in relation to the control of marine pollution and will be dealt with separately below. There are jurisdictional limits of authority over maritime affairs that have been brought in by regional autonomy as mentioned in Chapter 3 and Chapter 17 in relation to the coast. This is particularly important for identifying which level of government is responsible for the regulation of sea pollution within the various jurisdictions. The implications have yet to be incorporated into the legal framework. The sea under the jurisdiction of Indonesia may be classified as firstly, that water that lies beyond the intertidal zone up to 12 nautical miles from the coast and secondly, the area of sea that falls in the area between 12 and 200 nautical miles from the coast within the Exclusive Economic Zone (Zona Ekonomi Eksklusif) (EEZ). The former falls within regional government authority according to Act No. 22 of 1999 regarding Regional Government (Undang-undang No. 22 Tahun 1999 tentang Pemerintah Daerah) (art 3)). This authority is stated to include administrative arrangements law enforcement (art 10(2)). In the zone up to 12 nautical miles from the coast, district government has authority over the area between the inter-tidal zone up to 4 nautical miles and provincial government has authority for the area between 4 and 12 nautical miles (UU 22/99 art 10(3) and PP 25/2000 art 3(5)16b.). Central government authority in relation to maritime affairs extends to the formulation of policies on and regulation of management and utilization of maritime natural resources in the maritime territories beyond the 12 mile waters (art 2(3)2a). It also has responsibility for law enforcement in the maritime territory beyond the 12 mile waters and within the 12 mile waters where specific matters relate to international relations (art 2(3)2e). In relation to the environment, central government has authority for the regulation of environmental management in the use of marine resources beyond the 12 mile waters (art 2(3)18b). POLLUTION FROM LAND-BASED SOURCES Government Regulation No. 19 of 1999 regarding the Control of Sea Pollution (Peraturan Pemerintah No 19 Tahun 1999 tentang Pengendalian Pencemaran dan/atau Perusakan Laut) (PP 19/99) is the only regulation that specifically addresses sea pollution. It is particularly important in view of its application to coastal and estuarine areas, given that the definition of water contained in the draft National Water Act and PP 82/2001excludes seawater. Definitions The sea “Sea” is defined as (art 1(1)) an area of sea that forms one geographic unit along with all the elements that are connected to it that limit it and its system determined according to its functional aspects.
Although not expressly stated, this definition would appear to refer to the coast, as an element that limits the sea. It would also seem to include tidal and coastal waters.
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Sea pollution The definition of “sea pollution” is cast in similar terms to surface and groundwater, in that it relies on establishing that the quality of water decreases to a level that “causes the sea environment to no longer accord with the water quality standard and/or its function” (art 1(2)). Marine destruction The other key definition is that of “marine destruction” (perusakan laut) which is defined as action that gives rise to change either directly or indirectly in physical or biological quality that is shown in marine damage criteria (kriteria baku kerusakan laut). “Marine damage” (kerusakan laut) is in turn defined as physical or biological change in the sea that is indicated by marine damage criteria (kriteria baku kerusakan laut). Definitions are also provided for water quality standards, criteria of damage, sea water quality status, protection of sea water quality, control of sea water pollution, dumping, waste, liquid waste, solid waste, person, instansi and Minister (art 1). Principles The concept of protecting the sea is divided into (art 2): control of pollution and/or control of destruction of the sea with the aim of preventing the lowering of sea water quality and the ruin of sea resources. Thus, in terms of its overall scheme, the regulation does more than address marine pollution; it addresses the impact of pollution in terms of sea resources. This aspect, however, is not developed in the regulation. Sea resources are not defined and there is an absence of provisions relating to the sea resources. Inventory and determination of water quality status Water quality status is to be determined based on the results of an inventory and or research into seawater quality and the condition of the sea (art 5(1)). The governor is to determine the status according to guidelines issued by BAPEDAL (art 5(2)). If the governor does not do so, it is to be done by BAPEDAL. BAPEDAL is responsible for drafting technical guidelines for the evaluating and determining the status of seawater (art 6). Comments can be made in relation to these provisions, which are similar to comments made in relation to the management of fresh water quality. There is an absence of procedural provisions regarding the making of the inventory and the determination of water quality status. Furthermore, these provisions would need to take into account the jurisdictional limits under regional autonomy. Ambient seawater quality standards PP 19/99 states that the protection of water quality is based on the concepts of seawater quality, the use of criteria to assess damage to seawater and water quality status (art 3). Water that meets seawater quality standards is considered to reach “good quality status”, and that which does not, is considered to be “polluted” (art 7). Similarly marine environments that fulfill listed criteria will be considered “good” and those that do not will be considered “damaged” (art 8). Seawater quality standards and criteria to assess damage to seawater are to be established by the Minister for the Environment1 (art 4).
1 To
the writer’s knowledge this has not yet occurred.
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Prohibitions imposed upon the public A prohibition is imposed upon every person or person responsible for an enterprise or activity against actions that are able to give rise to sea pollution (art 9). A similar prohibition is imposed upon every person or person responsible for an enterprise or activity against actions that are able to give rise to damage to the sea (art 13). Obligations imposed upon the public There is an obligation on all those responsible for an enterprise or activity to:
prevent the occurrence of sea water pollution (art 10(1)) or damage to the sea (art 14(1)
tackle pollution or sea damage that arises from their activities (art 15)
restore sea water quality (art 16(2))
pay for the cost incurred by government to contain the effects of an emergency that has lead to sea pollution or environmental damage (art 17(5))
inform an authorised official and/or BAPEDAL of the occurrence of the emergency and the disposal to sea of anything that was needed to protect the safety of people involved (art 17(1)(a)&(2))
inform an authorised official and/or BAPEDAL mentioning the things disposed of, the location, time, total and steps taken to prevent pollution or damage to the sea (art 17(1)(b)&(3))
obtain a licence for dumping of waste to sea by the Minister (art 18(1))
meet any requests made by officials of the Ministry in carrying out investigations (art 20(2))
display signs and attend to the situation and condition in a place under management (imposed upon the manager) (art 20(3))
undertake self-monitoring (art 22(1))
meet the cost of handling pollution and environmental damage and the restoration of the marine environment (art 24(1))
pay compensation to third parties for damage suffered as a result of sea pollution or damage to the marine environment (art 24(2)).
There is a more specific obligation imposed on all those responsible for an enterprise or activity that disposes of waste to the sea to fulfill conditions regarding sea water quality, liquid waste quality standards, standards for emissions and other provisions in accordance with prevailing law (art 10(2)). Thus, a link is made with the effluent discharge standards referred to at 6.2 above. In relation to the management of liquid waste and solid waste produced from “routine activities” (an undefined term), there is an obligation to use a processing unit in accordance with existing regulations (art
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12). Thus, it would seem that the regulations in relation to discharge standards, water quality, and waste management as discussed above are applicable to activities which discharge liquid waste to the sea. Obligations imposed upon government It is stated that in an emergency, the authority that receives a report of the emergency is to take action to prevent the spreading of pollution or environmental damage and to report to the Minister for the Environment (art 17(4)). There is no indication in the regulation, as to who the relevant authority is or what kind of action they are authorised to take. The Minister is allocated authority for oversight of activities that can cause sea pollution or environmental damage (19(1)). In doing so the Minister is authorised to carry out monitoring, request information, and carry out investigative activities (art 20(1)). This is not expressed, however, as an obligation. Clearly, these aspects of the regulation also do not take into account regional autonomy arrangements. Enforcement There are no provisions on enforcement in the sense of administrative and criminal sanctions. There is a section on the payment of compensation by those who damage sea resources or water pollution (art 24). Further guidelines BAPEDAL has been given responsibility for formulating the guidelines on the following:
evaluation and determination of the status of sea water (art 6) prevention of sea pollution (art 11) and damage to the sea (art 14(2)) tackling pollution or sea damage (art 15(2)) restoration of sea water quality (art 16(2)) self-monitoring (art 22(2))
It is stated that the Minister will finalise the following:
the concept of sea water quality and criteria to assess damage to sea water (art 4) arrangements for dumping (art 18(2)) arrangements for calculating expenses, claims, and compensation (art 25).
POLLUTION FROM SHIPS Act No. 17 of 1985 regarding the Ratification of the United Nations Convention on the Law of the Sea (Undang-undang No. 18 Tahun 1985 tentang Pengesahan Konvensi Perserikatan Bangsa Bangsa tentang Hukum Laut) ratifies the United Nations Convention on the Law of the Sea (UNCLOS). The International Convention for the Prevention of Pollution by Ships (MARPOL) (London) and the 1978 Protocol has been ratified pursuant to Presidential Decree No. 46 of 1986 (Keputusan Presiden No. 46 Tahun 1986 tentang Pengesahan International Convention for the Prevention of Pollution from Ships 1973, berserta Protokol) (Keppres 46/86). In UNCLOS there are important provisions regarding the marine environment (eg. arts 192-195) including obligations to protect marine environments and provisions regarding pollution from ships, dumping at sea and seabed operations. Articles 208, 210 and 211 have the effect of incorporating, by
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implication, the 1972 London Dumping Convention and the 1973/78 MARPOL Convention, so that Indonesia is compelled to adopt the basic standards of the treaties. 2 It has not been possible to review the articles in these conventions and the extent to which they have been incorporated into domestic laws regarding marine pollution. It is noted, however, that Act No. 6 of 1996 regarding Indonesia Waters (Undang-undang No. 6 Tahun 1996 tentang Perairan Indonesia) does not mention the control of marine pollution. Some aspects of pollution from ships are contained in Government Regulation No. 70 of 1996 regarding Harbours (Peraturan Pemerintah No. 70 Tahun 1996 tentang Kepelabuhanan). This regulation refers to facilities for collecting waste in harbours and states that harbours be completed with facilities to contain wastes from ships (art 53(1)). In the elucidation, particular attention is drawn to the need for businesses in oil and gas to prevent pollution that may arise from ships. The extent to which enforceable obligations and prohibitions are imposed needs to be further investigated. A number of ministerial decrees have been passed to implement Keppres 46/86 namely:
Decree of the Minister for Communications No. 167 of 1986 regarding the International Certification of the Prevention of Oil Pollution and International Certification of the Prevention of Pollution from Toxic Liquids (Keputusan Menteri Perhubungan No. 167 Tahun 1986 tentang Sertifikat Internasional Pencegahan Pencemaran Oleh Minyak Dan Sertifikat Internasional Pencegahan Pencemaran Oleh Bahan Cair Beracun)
Decree of the Minister for Communications No. 215 of 1987 regarding the Provision of Facilities for the Containment of Waste from Ships (Keputusan Menteri Perhubungan No.215 Tahun 1987 tentang Pengadaan Fasilitas Penampungan Limbah Dari Kapal)
Decree of the Minister for Communications No. 86 of 1990 regarding the Prevention of Pollution from Oil and Ships (Keputusan Menteri Perhubungan No. 86 Tahun 1990 tentang Pencegahan Pencemaran Oleh Minyak dan Kapal-kapal)
Decree of the Minister for the Environment No. 42 of 1995 regarding Liquid Waste Standards for the Oil and Gas Sector (Keputusan Menteri Lingkungan Hidup No. 42 Tahun 1995 tentang Baku Mutu Limbah Cair Bagi Kegiatan Minyak Dan Gas Serta Panas Bumi)
Decree of the Minister for the Environment No. 42 of 1996 regarding Liquid Waste Standards for the Oil and Gas Sector (Keputusan Menteri Lingkungan Hidup No. 42 Tahun 1996 tentang Baku Mutu Limbah Cair Bagi Kegiatan Minyak Dan Gas Serta Panas Bumi)
These regulations need to be reviewed to ascertain whether they contain specific provisions to implement the terms of the convention. Questions of interest are whether they focus on oily mixtures and other liquid substances coming from ships, the jurisdictional arrangements, the nature of the obligations and whom they are imposed upon (such as the master of the ship, owner or any person whose act caused the discharge), and liability for pollution incidents.
2 Birnie
P and Boyle A, International Law and the Environment Clarendon Press Oxford 1992 at p.256.
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THE DUMPING OF WASTE AT SEA As mentioned above, there are important provisions on dumping at sea in UNCLOS. The extent to which Indonesian law provides for such matters is a topic for further research. To implement the terms of the convention it would be necessary to regulate the dumping of wastes and other matter into the sea from ships, aircraft and platforms, and incineration of waste/matter on ships or platforms at sea. The regulatory system should make it an offence to dump waste without a permit and the considerations to be taken into account in issuing the permit should be listed. Responsibility could be allocated to an appropriate Minister to cause steps to be taken to mitigate or repair damage where there is danger to vessels, human or marine life. CONCLUSIONS AND RECOMMENDATIONS Further research is required in relation to the implementation by Indonesia of international instruments to which it is a signatory relating to the prevention of marine pollution. The comments made below relate only to PP 19/99. Autonomy and institutional arrangements PP 19/99 needs a total overhaul, particularly regarding allocation of government authority and responsibility. It needs to be considerated whether this task should be preceded by the passing of a new national statute covering the management of coastal resources and marine resources. PP 19/99 does not take into account the rearrangement of government authority that has been brought in by regional autonomy, particularly the fact that central government authority regarding the sea is now limited geographically. In relation to each source of water pollution, consideration needs to be given to the new governmental authority. The implications are wide ranging, and issues such as the relevant authority for determining the water quality status, and who is to be responsible for oversight and enforcement need to be addressed. A single agency or authority could be allocated responsibility for controlling pollution of the seas and coastal waters beyond the 4-mile limit. Responsibility for pollution of the sea beyond the 4-mile limit could be granted in whole or in part to a statutory authority such as the authority responsible for maritime affairs. In relation to coastal pollution within the 4 mile limit (under the authority of district government) the authority could be a port or coastal authority. Definitions The full range of definitions that apply to marine pollution has not yet been developed in the context of the various sources of marine pollution. Further consideration needs to be given to the definition of “waters” in relation to its application to tidal waters, estuaries and harbours and the concept catchment management. Rights, duties, and obligations PP 19/99 like most environmental regulations simply provides a framework for the control of damage to the sea. Many of the obligations set out in the regulation are not enforceable without further regulation. Minimal obligations are imposed upon government.
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Legal drafting and levels of law making PP 19/99 is lacking in detail. Most of the operational procedures have been delegated to BAPEDAL for formulation in guidelines. Where these matters involve the establishment of rights, obligations and responsibilities they would be more appropriately dealt with by laws and regulation. This is applicable to such aspects as the evaluation and determination of the status of sea water, the prevention of sea pollution and damage to the sea, tackling pollution or sea damage, restoration of sea water quality, and selfmonitoring.
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CHAPTER 9 - THE ATMOSPHERE Introduction This chapter will discuss pollution of the atmosphere by reviewing the environmental law concerning the control of air pollution, the use of ozone depleting substances and climate change. Time has not permitted a full review of the law relating to ozone depleting substances or green house gases and therefore this chapter will concentrate on air pollution. In relation to air pollution, Indonesia faces severe and growing air pollution problems, particularly in urban areas. Deteriorating air quality in major cities is primarily due to emissions from mobile sources.1 Leaded gasoline has been phased out from usage in Jakarta since 1 July 2000. It is to be phased out from the whole of Java in 2002 and the whole country in 2003. This will make a significant impact on air quality as 55% of total fuel needs in Indonesia are met by use of gasoline. However, 44% of total needs are met through diesel fuel, particularly in public transport – buses and trucks. The maximum fuel content for sulphur has been set at 50 ppm but in Indonesia it exists at levels of up to 500 ppm.2 The European Commission for Economy has established four steps for the elimination of sulphur from vehicles using diesel fuel. Indonesia has not yet implemented these steps.3 Stationary sources of air pollution also contribute to poor air quality, particularly in urban areas where there are emissions from the industrial and energy sectors. Reduction of air pollution emissions from industry may have implications for the levels of discharge of liquid waste or the disposal of solid waste. For these reasons, the relationship between pollution of the air, land and water from stationary sources may be interrelated and should be considered together. In this regard, reference is made to the need for an integrated approach to licensing mentioned in Chapter Five on the Constitution and Act No. 23 of 1997 regarding Environmental Management. Government Regulation No. 41 regarding the Control of Air Pollution (Peraturan Pemerintah No. 41 Tahun 1999 tentang Pengendalian Pencemaran Udara) (PP 41/99) covers the control of air pollution from mobile sources and stationary sources. It also includes the control of smell (sumber gangguan) and noise (kebisingan). Smell and noise have not been covered in the report. AIR POLLUTION - GENERAL Definitions Definitions are provided for air pollution, the control of air pollution, sources of pollution, ambient air, ambient air quality, status of ambient air quality, ambient air quality standard, protection of ambient air quality, emissions, emission quality, emission source, air pollution index, inventory, Minister and governor (art 1). The definition of “air pollution” and “pollution source” rely on establishing that air is not able to fulfil its function. Air pollution is defined as “the entering of a substance, energy and or other component into
1 CIDA
and BAPEDAL, Pollution Control – Strategic Directions and Priority Programs May 1998 p.33.
2 According to a quote of Ahmad Safrudin, Chief Executive of the Committee for Leaded Fuel Eradication, Jakarta
Post 5 May 2001 article entitled “Removal of leaded gasoline does little for air pollution”. 3 ibid
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ambient air by human activities so that ambient air quality decreases to a certain level that causes the ambient air not to be able to fulfil its function” (art 1(1)). Pollution source is defined as (art 1(3): every enterprise or activity that emits pollution to the air and causes the air not to be able to meet is function in the manner it should.
The inclusion within these definitions of references to the function of air creates a complex definition that has implications for enforcement. A simpler definition of air pollution would be:4 A change in the natural composition of the air, especially through smoke, soot, dust, gases, aerosols, steam or odorous substances.
The “control of air pollution” is defined as “the prevention and/or tackling of air pollution and the restoration of air quality”5 (art 1(2)). It is said to include the control of emissions and/or sources of disturbance from businesses and/or activities from mobile sources, specific mobile sources, stationary sources, specific stationary sources and is carried out to with the aim of preventing the lowering of ambient air quality (art 2). Thus, the scope of activities in the control of air pollution is established.6 The “prevention of air pollution” is mentioned under the heading of control of air pollution. It is said to be made up of the effort to prevent the occurrence of air pollution through setting ambient air quality standards, emission standards, standards for disturbance, threshold limits on gas emissions, and noise (art 20(a)). It also includes the determination of policy (art 20(b)). The use of the concept of “prevention” is similar to the UU 23/97 and does not make a clear distinction between control and prevention in the sense of cleaner production and the minimisation of emissions beyond compliance with emission standards. Definitions are also provided for stationary source, specific stationary source and air quality standard from a stationary source. Of particular interest is the definition of a “specific stationary source” which is defined as “emissions that come from a place that derive from forest fires and burning rubbish.” (art 1(15)) Thus, the provisions for stationary sources do not only apply to industry but may also apply to land clearing activities through burning off or waste disposal by incineration. There is, however, no follow up of the use of this term in the regulation. In relation to mobile sources of pollution, definitions are provided of mobile source, specific mobile source, threshold limit of gas emission from a vehicle, vehicle, new vehicle, old vehicle, and emission test (art 1).
4 Taken from the article 3(4) German Act on the Prevention of Harmful Effects on the Environment caused by Air
Pollution, Noise, Vibration and Similar Phenomena – Federal Emissions Control Act 1990 5 There is frequent use of the word “tackle” (penanggulangan) in the regulation. This word does not have a defined meaning. 6 The scope is set out again in article 16 where it says that the control of air pollution includes the prevention and tackling of pollution, as well as the restoration of air quality standards through the making of inventories, ambient air quality, prevention of pollution sources from mobile and stationary sources, including sources of disturbance and the handling of emergencies (art 16)
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Notably there is no definition for “harmful effects on the environment”. This could be defined as follows: 7 Emissions which, according to their nature, extent or duration, are liable to cause hazards, considerable disadvantages or considerable nuisance to the general public or the neighbourhood.
Such a definition also avoids reliance upon the concept of the environmental function and would simplify enforcement proceedings. Planning The regulation deals with the protection of air quality which is said to be based on ambient air quality standards, the status of ambient air quality, emission standards, threshold limits of gas emissions, standards for levels of disturbance, noise level standards and the air pollution index (art 3). It is not actually stated that the protection of air quality involves the prevention of air pollution. Importantly, there is no reference to planning the management of air quality. This represents a gap in environmental planning, which should be addressed in the regulation and linked to spatial planning. Inventory making The status of air quality is to be determined according to an inventory and/or research regarding ambient air quality, the potential for air pollution, meteorological and geographic conditions and arrangements for land use (art 6(1)). This is to be the responsibility of BAPEDALDA (art 6(2)). The governor is to determine the status of air quality based on the results of the inventory and/or research (art 6(3)). Technical guidelines for the making of the inventory and the determining of the air quality status are to be prepared by BAPEDAL (art 6(4)). Standards National ambient air quality standards are described as the maximum limits of air quality to prevent the occurrence of air pollution (art 4(1)). They are included in an appendix to the regulation. Standards are to be set at the regional level in accordance with national standards unless they are to be more stringent (art 5). There is no detail on the circumstances in which standards are to be made more stringent, or the considerations to be taken into account setting standards at the regional level. In relation to emission standards, BAPEDAL has the task of setting emission standards for both stationary and it is stated that mobile sources (art 8(1)) and this is to be done taking into account dominant and critical parameters, quality criteria, fuel, raw material and existing technology (art 8(2)). Public participation Community rights to information about air quality are set out in terms of obligations imposed upon government regarding the Air Pollution Index that is to be established by BAPEDAL (art 12(1)). The index is to take into account the level of air quality regarding human health, animals, plants, development, and aesthetics (art 12(2)). It is to be used for community information and by the central and regional government in carrying out the control of air pollution (art 14(2)). An obligation is imposed on BAPEDAL to publish the Air Pollution Index (art 15).
7 Taken from the article 3(1) German Act on the Prevention of Harmful Effects on the Environment caused by Air
Pollution, Noise, Vibration and Similar Phenomena – Federal Emissions Control Act 1990
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The results of the inventory and monitoring of ambient air quality standards, emission standards, disturbance levels, and the air pollution index that are produced as a result of monitoring activities are also required to be provided (disimpan dan disebarluaskan) to the community (art 49). This is to be done by officials who receive a transfer of authority from the Minister (arts 44(2) and 45 (2)) at provincial or district level. There is, however, a lack of detail as to who these officials are and how this will occur. Monitoring The preparation of the Air Pollution Index is the primary form of monitoring by government. There is also a provision allowing the community to monitor air quality (art 51(1)). The monitoring results can be provided to the relevant agencies (art 51(2)) and are able to be used by those agencies (art 51 (3)). In this regard, however, no obligation is imposed upon government to respond to the information provided by the community. THE CONTROL OF AIR POLLUTION FROM STATIONARY SOURCES Scope In relation to stationary sources, the scope includes oversight regarding compliance with emission standards, monitoring emissions and ambient air quality around the location and the investigation of compliance (art 28). Prohibitions The only prohibition is that which applies to “a business or activity” which has completed an AMDAL. The prohibition is to the effect that such entities are not to breach conditions that are contained in the business licence (art 23). This assumes that the environmental management plan (RKL) and environmental monitoring plan (RPL) are incorporated into the business or activity licence. It relies on the terms of the RKL and RPL being expressed clearly and in such a way that they can be converted into licence conditions. Obligations General obligations are imposed upon every person that carries out a business or activity that gives out emissions and/or disturbances to the air to (art 21): comply with ambient air quality standards, emission standards and disturbance standards determined for the business or activity implement pollution prevention and/or tackling of air pollution that results from the business or activity provide the community with information that is correct and accurate. Other more specific obligations are imposed to: (a) fulfill conditions that are provided in a business or activity licence (art 22(1)) (b) carry out efforts to tackle air pollution and restore air quality (art 25(1) (c) comply with ambient air quality standards, emission standards and levels of disturbance (art 30(1)) (d) comply with technical conditions contained in the technical guidelines prepared by BAPEDAL for the control of air pollution from mobile and stationary sources mentioned in article 9(2) (art 30(2)) (e) assist government carry out its oversight role (art 48).
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Self-monitoring is provided for through an obligation upon every person or person responsible for a business or activity to hand over a report of the results of monitoring to BAPEDAL, the technical agency and other relevant agencies (art 50(1)). A guideline is to be prepared by BAPEDAL in this regard. All costs that arise from pollution control from stationary sources are the responsibility of the business or activity (art 52). A further obligation is imposed to assume liability for the cost of tackling air pollution and the cost of restoration (art 54(2)). It is not stated who the payment is to be made to. These provisions apply the polluter-pays-principle, however, as discussed below, there are no back-up provisions specifying how they are to be enforced. Every person who causes damage to third parties because of air pollution is obliged to pay compensation (art 54(2)). There is no detail as to how such compensation is to be obtained, the parties that may claim compensation or the sorts of damage that may be included in the claim. In this regard, the regulation appears to rely on the provisions of UU 23/97 relating to compensation. These questions have been deferred to the Minister’s consideration, as it is stated that the Minister will determine the system for calculating the cost of pressing the claim and securing the payment of compensation (art 55). There is also an obligation imposed upon a person responsible for a business or activity to publicise the level of pollution as recorded in the emission test (art 35(2)). Licensing The regulation does not provide from an air pollution licence to be issued. As mentioned above, a prohibition applies to businesses or activities that have carried out an AMDAL, to the effect that they are not to breach conditions contained in the business or activity licence (art 23). There is no provision expressly linking air pollution licences with the AMDAL process. It is assumed that the business or activity licence will include conditions drafted to protect air quality control. There is, however, no detail as to how this will occur. Where no AMDAL is required, conditions regarding conditions and requirements of emission or disturbance standards to prevent and tackle air pollution are to be made by BAPEDAL (art 24(2)) Obligations imposed upon government An obligation is imposed upon the sector tasked with issuing the business or activity licence to the effect that the business or activity licence must contain (wajib dicantum) conditions and requirements for the compliance with emission or disturbance standards to prevent and tackle air pollution that are made by BAPEDAL (art 24(3)). This is a clear expression of an obligation imposed upon a sectoral agency. In this way, the conditions issued by BAPEDAL, which would otherwise not be legally binding, are given legal force by the regulation. It is also stated that sectoral officials are to require the person responsible for the business or activity to obey emission or disturbance standards to prevent and tackle air pollution that arises from their activities (art 24(1)) This provision, however, is not expressed as an obligation and appears to serve only as a means for allocating responsibility for enforcement actions to the sectoral agency that issues the business or activity licence.
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BAPEDAL is allocated responsibility for coordinating the implementation of air pollution control (art 29(1)) in accordance with technical guidelines (art 29(2)). No further detail is provided in this regard, as to what is actually required to coordinate the implementation of air pollution control. THE CONTROL OF AIR POLLUTION FROM MOBILE SOURCES Obligations upon citizens regarding mobile sources No prohibitions are imposed regarding pollution from mobile sources, rather there is an obligation to meet emission standards (art 33). Additional obligations have been imposed to require the testing of new vehicles (art 34(1)). Old vehicles are to be tested in accordance with prevailing law (art 36(1)). These obligations are not expressed as being imposed on anyone in particular, such as the registered owner of the vehicle. LEVELS OF GOVERNMENT AUTHORITY Obligations upon government The regulation states that if the air quality is lower than the national standard, the governor is to determine that the air is polluted (art 7(1) and is obliged to tackle air pollution and restore of ambient air quality (art 7(2)). There is no detail in the regulation as to how this task is to be carried out. The regulation has partly taken into account the rearrangement of government authority that has resulted from regional autonomy:
In relation to the control of air pollution, whilst BAPEDAL is tasked with the compilation and implementation of national technical policy, (art 17(1)) operational implementation in the regions is to be carried out by district government (art 18(1)) and coordinated by the governor (art 18(2)).
The operational implementation is to be carried out at the district level and compiled and determined by “a regional work program” (art 19(1)) in accordance with guidelines prepared by BAPEDAL (art 19(2)).
In relation to the tackling of air pollution, which is said to consist of oversight of compliance with emission limits, monitoring, investigation, (art 31) BAPEDAL has responsibility for coordination (art 32(1)) and is to produce a pedoman (art 32(2)).
If the Air Pollution Index exceeds 300, the air quality is regarded as being dangerous and the Minister is to declare a national emergency and the governor to declare a regional emergency (art 26(1)). This is to be done using printed and electronic media (art 26(2)).
In relation to emission standards from mobile sources, the testing of new vehicles is to be administered by the agency responsible for roads and traffic (art 34(4)) This would appear to be the agency at the district level although not expressly stated. The test results are to be handed to BAPEDAL and the relevant department according to the type of activity that is being undertaken (art 35). Query whether this applies to the introduction of lead free petrol in the regions.
In relation to old vehicles which are to be tested under prevailing law (art 36(1), the results of the tests are to be the subject of an annual report by the governor to BAPEDAL (art 36(2)).
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The aspect that does not accommodate changes brought by regional autonomy is the provision regarding oversight. Oversight is to be carried out by the Minister (art 44(1)) who is able to transfer his authority to an official authorised to carry out oversight (art 44(2)). This would appear to include lower levels of government, as article 45 assumes that oversight authority may be handed over to the regional government, that is, district level government (art 45(1)). Such a transfer is no longer necessary. It is also questionable whether the Minister is still able to carry out oversight under regional autonomy. ENFORCEMENT Administrative enforcement The enforcement provisions lack detail. There is no clear allocation of responsibility for carrying out enforcement actions. It would appear from article 24(1) that in relation to stationary sources the sectoral agency is responsible for enforcement, however, this is not expressly stated. Comments made in Chapter 21 regarding administrative enforcement apply in relation to the control of air pollution. In particular, there is need for provision for sanctions for more minor incidents of air pollution. In relation to mobile sources, a power to “spot fine” allocated to the police would be a useful sanction regarding heavily pollution vehicles. For repeating offenders, this could be stepped up to take the form of a criminal prosecution with a heavier penalty and a temporary suspension of registration. Criminal Enforcement In article 56(1) it is stated that a person will be liable if they violate the provisions contained in articles 21, 22(1), 23, 24(1), 25(1), 30, 39, 47(2), 48, 50(1) and the violation can give rise to and/or cause air pollution and/or disturbance. The regulation refers to the provisions contained in UU 23/97 regarding criminal enforcement, namely, articles 41, 42, 43, 44, 45, 46, and 47. There are two difficulties with the criminal offence provisions. Those difficulties derive firstly, from the drafting of article 56(1) in PP 41/99 and secondly, from the drafting of the criminal offence provisions in UU 23/97. (a) The drafting of article 56(1) in the PP 41/99 By way of example, if article 56(1) is applied to a breach of article 21(a) of the regulation, the difficulties posed can be demonstrated. Article 21(a) imposes an obligation upon every person who carries out a business or activity to comply with ambient air quality standards, emission standards and disturbance standards determined for the business or activity. To establish that this obligation has been breached, it is only required to show that a company failed to adhere to emission standards. The wording of article 56(1), however, imposes an additional requirement to prove that it is estimated that the breach is able to give rise to or cause air pollution and/or disturbance. As mentioned the definition of air pollution involves establishing that ambient air quality decreases to a certain level that causes the ambient air not to be able to fulfill its function (art 1(1)). Proof of causation provides an additional and unnecessary burden for enforcement, particularly in polluted urban areas for which there my be many sources of air pollution. (b) The drafting of the criminal provisions contained in UU 23/97 The provisions in UU 23/97 are not readily applicable to air pollution offences. If proceedings are brought under the UU 23/97, proof of the offence becomes more complicated. Firstly, a choice has to be made as to which article of UU 23/97 to proceed under (see Chapter 22 in this regard). Continuing the example of a 136
prosecution for breach of article 21(a), if for example, it is decided to proceed under UU 23/97 article 41, a prosecution would have to provide evidence that article 21(a) was contravened intentionally. It is also arguable that it would have to be proven that the giving rise to air pollution was intentional. AIR POLLUTION FROM FIRES As mentioned above, the definition of “specific stationary source” includes “emissions that come from a place that derive from forest fires and burning rubbish.” (art 1(15)) Thus, the provisions for stationary sources apply to land clearing activities through burning of land as well as waste disposal by incineration. There is, however, no follow-up of this part of the definition. There are no specific provisions regarding air pollution caused by fires, such as a prohibition against burning in the open air or the use of incinerators. As noted above regarding the definitions, the regulation does not contain a definition regarding the harmful effects on the environment, which would be helpful for developing provisions regarding fires. Harmful effects on the environment could be defined as follows:8 Emissions which, according to their nature, extent or duration, are liable to cause hazards, considerable disadvantages or considerable nuisance to the general public or the neighbourhood.
Such a definition would be readily applicable to fires and make a link between other regulations relating to fires and air pollution. It has been said that public policy on fires should cover fires in general, in forest and land areas as well as in rural and urban settlements and that this should preferably take the form of a government regulation.9 Recommendations as to the content of such a regulation have also been made. These recommendations deal largely with fires that pose an immediate hazard. However, some of the recommendations are relevant to expanding the scope of the air pollution regulation, such as:10 (a) the need to define and categorise fire disasters (b) a prohibition imposed on all sectors of the community, organisations, groups and individuals to conduct activities which will have an impact on fire risk and fire hazards (c) the procedure (modus operandi ) for fire management (d) integrated early warning and early action systems (e) clear regulation and definition of the institutional and individual legal subject imposed with the responsibility to enforce and implement legal provisions, and clear drafting of sanctions for each category of violation; and (f) designation of functional institutions responsible for the implementation of policy on forest and land fire management and fire management in general. CONCLUSIONS AND RECOMMENDATIONS – AIR POLLUTION Regional autonomy It can be seen that pursuant to PP 41/99, regional government will be responsible for: 8 ibid 9 State Ministry
for Environment and UNDP, Forest and Land Fires in Indonesia Plan of Action for Fire Disaster Management Vol.2 , September 1998, p.62. 10 ibid
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1. 2. 3. 4. 5. 6.
Determining the status of air quality The “regional work program” Operational implementation of pollution control Determination of air quality and emission standards Oversight Publication of an Air Pollution Index
The question that arises is whether the legal framework is sufficient to enable these tasks to be carried out. It will be greatly assisted by the completion of the technical guidelines referred to in the regulation. However, many of these matters should be dealt with as law and there will be a legal gap until they are turned into legal form. In Jakarta it will be mandatory for vehicles to undergo emission checks in the year 2002 to obtain a clearance certificate to apply for or extend a vehicle licence and in this regard a Decree has been issued by the governor (No. 95/2000). This decree has not been reviewed in the report. In many instances, however, there will be a lack of regulations at the provincial and district level pertaining to air pollution control. For example, in the Special Region of Yogyakarta (Daerah Istimewa Yogyakarta), a Regional Regulation (Peraturan Daerah) (Perda) relating to air quality has not yet been passed. The only reference to air quality is contained in a Decision of the Governor on General Environmental Standards (Keputusan Gubernur Kepala DIY No.214/KPTS/1991 Baku Mutu Lingkungan Daerah Untuk Wilayah Propinsi Daerah Istimewa Yogyakarta). This guideline sets up ambient standards for water bodies, the sea, air, noise, liquid waste, and the emission of gas and air particles. It contains definitions of, ambient air, air pollution, ambient air quality, noise, noise sources, and standards for the emission of gas and other particles. The relevant Minister is said to be the Minister for the Environment. It therefore requires amendment to take account of the new responsibilities. Further consideration needs to be given as to the adequacy of the legal framework to support the implementation of responsibility by the regions. Efforts should be made to complete the technical guidelines as soon as possible. Further consideration should be given to their form. Where the technical guidelines impose obligations upon the community, industry, or government, or grant rights to the community, the content should be turned into legal form. A decision will need to be made regarding whether a law/regulations should be issued at the central or regional level. Particular attention needs to be given to apportioning responsibility for oversight of air pollution at the regional level. Scope of the regulation The scope of the regulation is sufficiently broad except regarding the provisions for forest fires and burning rubbish (art 1(15)), as these sources of air pollution are not fully addressed by the regulation. The location of sanctions relating to fires needs to be established more clearly. A Natural Resources Management Act would be an appropriate place for sanction provisions. Recommendations made regarding enforcement under UU 23/97 in Chapters 21, 22 and 23 are applicable to the control of forest fires. There is a need for specific provisions regarding the imposition of sanctions for the lighting of fires based on a hierarchy related to the level of harm caused to the environment. Strict liability offences for criminal prosecutions could be built on prohibitions contained within the Act (for a discussion of strict liability see Chapter 22).
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Mobile sources Further attention needs to be given to the elimination of sulphur from vehicles using diesel fuel. In relation to the effort to reduce the usage of leaded petrol, the recipient of obligations needs to be more clearly drafted. The regulation could be more detailed in terms of its obligations and prohibitions. For example, it could state that the sale of unleaded petrol must be genuine and that the sale of certain motor vehicles that do not require unleaded petrol is prohibited. Prohibitions and obligations need to be imposed on identifiable parties to give greater force to the provisions and to assist enforcement. Planning Importantly, there is no reference to planning the management of air quality. This represents a gap in environmental planning, which should be addressed in the regulation and linked to spatial planning. Environmental planning, particularly planning that is related to urban planning and the planning of transport infrastructure is crucial for the management of air quality. Linkages between these two forms of planning are not provided for. The making of the inventory relies on the production of a technical guideline by BAPEDAL. Some guidance as to the content of the technical guideline is provided by article 6(2); however, there is no compulsion upon BAPEDALDA to follow BAPEDAL’s guideline in making the inventory. The reference to a ‘regional work program” may include a planning function but this is not expressly stated. Furthermore, nothing is stated as to the aim of the regional work program or the entities that may be involved. Neither is there any obligation to actually implement the regional work program. It can be seen therefore that there is no linkage between air quality and spatial planning in terms of transportation planning or land use for industrial activities. As mentioned above, the regulation states that if the air quality is lower than the national standard, the governor is obliged to tackle air pollution and restore of ambient air quality (art 7(2)). There is no detail in the regulation as to how this task is to be carried out. This is a missing link in the environmental planning process. Coordination of spatial planning and air quality management is required. In linking spatial planning and air pollution control, guidance could be taken from the German Act which states that if emission levels are exceeded in all or part of an area, the authority that is competent under the land law shall draw up a clean air plan which shall serve as a rehabilitation plan. It states what is to be contained in such a plan saying that it may be confined to specified air pollutants in specified areas, and when drawing up the plans allowance shall be made to specific needs of regional and land-use planning.11 It goes on to set out what the plans shall comprise, namely:12 1. A representation of emissions and emissions established for all or specific air pollutants 2. Information about the impact on assets worthy of protection 3. Findings as to the causes and effects of such pollution 4. Assessment of forthcoming changes in emission and emission conditions 5. Measures envisaged for the reduction and prevention of air pollution. Licensing
11 Act
on the Prevention of Harmful Effects on the Environment caused by Air Pollution, Noise, Vibration and Similar Phenomena – Federal Emissions Control Act 1990 (art 47(1)) 12 ibid (art 47(2))
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There appear to be two tiers of environmental control through licensing. Both forms, however, are contained within the business and activity licence issued by the sectoral agency. In one, the business and/or activity licence contains AMDAL documentation, in the other it implements technical guidelines produced by BAPEDAL. The regulation states that where no AMDAL is required, conditions regarding air emission standards and/or levels of disturbance to be imposed by sectoral agencies at the district level (art 24(2)) It can be seen that unlike the control of water pollution, the licensing of emissions from stationary sources is not controlled through a pollution licence. There is no role specified for environmental agencies at the provincial level in relation to the control of pollution beyond the assessment made by the AMDAL commission, which only relates to new developments. This is not supportive of a cross medium approach to pollution control, such as would be achieved by integrated licensing and would require amendment if an integrated licensing system is to be introduced. It is also not supportive of an expanded role being played by regional BAPEDALDAs in pollution control. The interconnectedness between air quality problems with the lowering of soil quality and water quality highlights the importance of integrated licensing of industrial activities. Similarly with other licenses, there is a need for the regulation to contain detailed procedural provisions, including public participation through the possibility of the lodging of objections by members of the public. A distinction should be made between enterprises that are not subject to licensing and those that are subject to licensing. Those that are not subject to licensing could be bound by environmental obligations set out in legislation. Monitoring Further detail is required regarding monitoring by government and self-monitoring by industry. The regulation makes little reference to how monitoring is to be carried out. It does not identify which government authority at the regional level is to be responsible for the monitoring of air quality. In relation to self-monitoring, the regulation also lacks detail. For example, it does not mention the kind of information that should be contained in the self-monitoring reports but relies on technical guidelines to be issued by BAPEDAL. By way of comparison, the German legislation states that the operator of an installation is to provide emissions declaration giving information on the type, the volume, and the spatial and temporal distribution of air pollution emitted from an installation within a specified period. The emissions declaration is to be updated every two years (art 27(1)). Furthermore, the emissions declaration is to be publicly available unless it contains information that could be used to draw conclusions concerning trade or business secrets (art 27(3)) Administrative sanctions The regulation does not provide any detail in relation to administrative sanctions. A clear allocation of institutional responsibility for enforcement has not been made for either administrative or criminal enforcement. This aspect needs to be addressed at the national level. Criminal sanctions The difficulties discussed in relation to enforcement under UU 23/97 also apply to criminal enforcement of air pollution offences. Furthermore, the regulation and the Act do not make a “good fit.”
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There are a number of queries that arise about the provisions regarding criminal enforcement including the following:
Is there a distinction between a situation that is estimated to give rise to pollution compared to one where pollution has actually been caused?
What is required to prove that pollution has been caused?
Do the articles in the regulation create two offences – one that is intentional and the other that negligent?
Will it always be necessary to prove either intention or negligence?
In relation to old vehicles, article 56(2) of PP 41/99 provides that whosoever breaches the provisions contained in articles 33(1), 36(1), 40 and 43(1) and does not meet emission limits, is liable to criminal proceedings under article 67 in Act No. 14 of 1992 regarding Traffic and Road Transport (Undang-undang No. 14 Tahun 1992 tentang Lalu Lintas dan Angkutan Jalan). Enforcement provisions need to be made more detailed with different provisions for air pollution from mobile and stationary sources. A penalty structure for air pollution sanctions needs to be established to cover administrative sanctions and criminal prosecutions. Administrative sanctions should be stated such as the giving of notices and the imposition of fines. Penalties specific to motor vehicles should also be specified. There could also be a provision to prevent the use of a motor vehicle in certain circumstances, for example, after repeated air pollution violations. Procedure showing how the government is to require a polluter to reimburse them for costs incurred in pollution control and restoration activities need to be drafted. The appropriate body for enforcement also needs to be allocated. For reasons discussed in Chapter Four, consideration should be given to making this body the BAPEDALDA rather than the sectoral agency. Public participation The regulation lacks sufficient detail on how the results of the inventory and monitoring of ambient air quality standards, emission standards, disturbance levels, and the Air Pollution Index are to be provided to the community (art 49). There is also no procedure for making of complaints in relation to air pollution, setting out, for example, how a complaint is made, the agency authorised to receive the complaint or the action to be taken by government on receipt of a complaint. More procedural detail is required in relation to the rights of the community regarding the inventory, the monitoring of air quality and the air pollution index. There also needs to be an obligation upon government to respond to community monitoring results. Compensation As mentioned above, it is stated that every person who causes damage to third parties from air pollution is obliged to pay compensation (art 54(2)). To the extent that the regulation relies on the provisions of UU 23/97 relating to compensation, it suffers from the weaknesses mentioned in Chapter 23.
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Supporting instruments and levels of lawmaking A large number of supporting instruments remain to be passed. The technical guidelines to be prepared by BAPEDAL are as follows: (a) technical guidelines for the making of the inventory and the determining of the air quality status (art 6(4)) (b) technical guidelines for the control of air pollution from mobile and stationary sources (art 9(2)) (c) Air Pollution Index (art 12(1)) (d) technical guidelines for calculating and reporting information and Air Pollution Index information (art 13) (e) guidelines for the regional work program (art 19(2)) (f) conditions and requirements regarding emission standards to prevent and control pollution where no AMDAL has been required (art 24(2)) (g) technical guidelines for the carrying out efforts to tackle air pollution and restore air quality by businesses or activities (art 25(2)) (h) technical guidelines for the tackling of air pollution and restoration of an emergency situation (art 27) (i) technical guidelines in relation to tackling pollution from stationary sources including oversight regarding compliance with emission standards, monitoring emissions and ambient air quality around the location and investigating compliance (art 29(2)) (j) technical guidelines for the tackling of air pollution from mobile sources (art 32(2)) (k) method of carrying out emission tests for new vehicles (art 34(3)) (l) technical guidelines for the method of reporting the test results from new vehicles (art 35(3)) (m) guidelines and system of reporting self-monitoring results (art 50(2)) Furthermore, the Minister is required to determine the system for calculating the cost, pressing the claim and securing the payment of compensation arising from air pollution (art 55) A question arises in relation to these further instruments regarding whether the subject matter is appropriate for technical guidelines. This comment is made in particular about (a), (b), (d), (e), (f), (g), (h), (i), (j) and (m) which are likelyl to will involve obligations upon industry, rights of the community and government responsibilities. In this sense, they are not purely “technical” documents. THE CONTROL OF OZONE DEPLETING SUBSTANCES It has been estimated that Indonesia contributes less than 1% of the world’s ozone depleting substances;13 nonetheless, there is an ongoing commitment to the phase out all ozone depleting substances.14 Both the Vienna Convention and the Montreal Protocol have been ratified. The 1987 Montreal Protocol to the Vienna Convention provided for a freeze on the consumption of certain chlorofluorocarbons (CFCs) at 1986 levels from 1989, followed by a timetabled reduction. The extent to which international commitments have been brought into existence through domestic legislation is an area of research that has not been carried out in the report. It would include an analysis of at least the following regulations and guidelines: 1. Presidential Decree No. 23 of 1992 regarding the Ratification of the Vienna Convention for the Protection of the Ozone Layer and Montreal Protocol on Substances That Deplete The Ozone Layer as Adjusted and Amended By The Second Meeting of The Parties London, 27 - 29 June 1990 (Keputusan Presiden No. 23 Tahun 1992). 13 State 14 ibid
Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997, p.19. p.55.
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2. Presidential Decree No. 92 of 1998 regarding the Ratification of the Montreal Protocol On Substance That Deplete The Ozone Layer, Copenhagen, 1992 (Keputusan Presiden No. 92 Tahun 1998 tentang Pengesahan Protokol Montreal Tentang Zat-Zat Yang Merusak Lapisan Ozon, Copenhagen, 1992). 3. Decree of the Minister for Industry and Trade No. 110 of 1998 regarding the Prohibition of Production and Trade in Ozone Depleting Substances and Articles that Use Ozone Depleting Substances (Keputusan Menteri Perindustrian Dan Perdagangan No. 110 Tahun 1998 tentang Larangan Memproduksi Dan Mem Perdagangkan Bahan Perusak Lapisan Ozon Serta Memproduksi Dan Mem Perdagangkan Barang Baru Yang Menggunakan Bahan Perusak Lapisan Ozon). 4. Decree of the Minister for Industry and Trade No. 111 of 1998 regarding Amendment to the Decree of the Minister for Industry and Trade No. 230 of 1997 regarding Regulated Imports (Keputusan Menteri Perindustrian Dan Perdagangan No. 111 Tahun 1998 tentang Perubahan Keputusan Menteri Perindustrian Dan Perdagangan No. 230 Tahun 1997 Tentang Barang Yang Diatur Tata Niaga Impornya). 5. Decree of the Minister for Industry and Trade No. 410 of 1998 regarding Amendment to the Decree of the Minister for Industry and Trade No. 110 of 1998 regarding the Prohibition of Production and Trade in Ozone Depleting Substances and Articles that Use Ozone Depleting Substances (Keputusan Menteri Perindustrian Dan Perdagangan No. 410/MPP/Kep/9/1998 tentang Perubahan Keputusan Menteri Perindustrian Dan Perdagangan No.110/MPP/Kep/1/1998 tentang Larangan Memproduksi Dan Memperdagangkan Bahan Perusak Lapisan Ozon Serta Memproduksi Dan Memperdagangkan Barang Baru Yang Menggunakan Bahan Perusak Lapisan Ozon (Ozone Depleting Substances). 6. Decree of the Minister for Industry and Trade No. 411 of 1998 regarding Amendment to the Decree of the Minister for Industry and Trade No. 111 of 1998 on Amendment to the Decree of the Minister for Industry and Trade No. 230 of 1997 on Regulated Imports (Keputusan Menteri Perindustrian Dan Perdagangan No.411/MPP/Kep/9/1998 tentang Perubahan Keputusan Menteri Perindustrian Dan Perdagangan No.111/MPP/Kep/1/1998 tentang Perubahan Keputusan Menteri Perindustrian Dan Perdagangan No.230/MPP/Kep/7/97 tentang Barang Yang Diatur Tata Niaga Impornya). No conclusions have been drawn in regard to the control of ozone depleting substances. The extent to which international commitments have been brought into existence through domestic legislation is a topic that would benefit from further research. CLIMATE CHANGE AND THE CONTROL OF GREEN HOUSE GASES Indonesia produces between 1.6-1.8% of the world’s greenhouse gas emissions. Most greenhouse gas emissions come from rural land use changes particularly forest fires. Another source of greenhouse gases is power plants. Measures have been taken for the reduction of emissions from power plants by the use of
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low sulphur coal and increased use of natural gas. It has been acknowledged that further gains could be made by improved efficiency standards and, in the longer term, by the imposition of carbon taxes.15 The United Nations Framework Convention on Climate Change has been ratified by Act No. 6 of 1994 regarding the Ratification of the United Nations Framework Convention on Climate Change (Undangundang No. 6 Tahun 1994 tentang Pengesahan Konvensi Kerangka Kerja Perserikatan Bangsa Bangsa Mengenai Perubahan Iklim). The extent to which the obligations contained in the United Nations Framework Convention on Climate Change have been brought into domestic law is a topic which requires further research. A preliminary review of environmental laws carried out in the writing of the report did not reveal any references to climate change, apart from a brief mention in the preamble to Government Regulation No. 4 of 2001 regarding Control of the Damage and Pollution of the Environment Related to Forest and Land Fires (Peraturan Pemerintah No. 4 Tahun 2001 tentang Pengendalian Kerusakan Dan Atau Pencemaran Lingkungan Hidup Yang Berkaitan Dengan Kebakaran Hutan Dan Atau Lahan). The loss of tropical forest in Indonesia is likely to contribute significantly to the amount of additional carbon that is contributed to the atmosphere each year. Although the value of the ecological functions of forests in terms of processing green house gases has only recently been started to be quantified, there are opportunities for Indonesia to participate in carbon trading schemes and the Clean Development Mechanism that has been put forward as a result of the Kyoto Agreement. No conclusions have been drawn in regard to the control of greenhouse gas emissions. The extent to which international commitments have been brought into existence through domestic legislation is a topic which would benefit from further research. This area appears to be an area that should be developed nationally, particularly in relation to participation in carbon trading schemes.
15 ibid
p.23.
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CHAPTER 10 - WASTE MANAGEMENT Introduction Environmental law regarding waste management differs from the environmental law discussed in Chapters 7, 8 and 9 as it concentrates on the control of substances (i.e. waste) rather than the quality of particular environmental media. Waste may be categorised into toxic waste and non-toxic (industrial and domestic) waste. Waste may also be categorised into solid, liquid waste and gaseous waste. Thus, the following categories of waste exist: Toxic Non-toxic
Liquid waste Toxic liquid waste (B3)- primarily industrial waste Non-toxic liquid waste industrial and household
Solid waste Toxic solid waste (B3) - primarily industrial waste Non-toxic solid waste – Industrial and household
Gaseous waste Toxic gases (B3) - industrial Non-toxic gases - industrial
The scope of Act No. 23 of 1997 regarding Environmental Management (UU 23/97) is expressed in broad terms to apply to waste management. In view of the definition of waste, which states that waste is “the residue of a business or activity” (art 1 (16)), the management of waste under UU 23/97 does not include household waste.1 Indeed, household waste is traditionally regarded as being a matter to be dealt with by district government. The law relating to the disposal of household liquid waste, namely sewerage and wastewater has not been covered in the report. This chapter will concentrate on the regulation of solid waste.2 The management of waste, however, often crosses physical categories: liquid waste may become sludge and solid waste will become gaseous waste if it is burned. For this reason, there is a strong argument in favour of managing waste through the adoption of a holistic approach. In this chapter it will be shown that in Indonesia there is a lack of an overall legal basis for the management of waste, as would be provided by the passing of a national waste management act.3 In particular, there is no national law to encourage the prevention and/or minimise of the production of waste. Legal intervention should take place at the earliest possible stage to regulate decisions regarding waste production. The concept of managing waste “from the cradle to the grave” represents the preventative approach to waste management. This approach aims to prevent or minimise waste, and where this is not possible, the producer of waste is to take responsibility for that waste until it no longer exists. The phrase “from conception to the grave” goes one step further, to look at the actual design of processes or products before they commence. In this regard, the AMDAL process is particularly important, especially its capacity to assess of the design of activities that produce waste, not only the management and monitoring of the disposal of waste.
meaning of “business or activity” is not defined in UU23/97. management of liquid waste was reviewed in Chapters Seven and Eight in relation to effluent control. Effluent discharge standards include both toxic and non-toxic industrial waste. 3 As is recommended in the GTZ Technical Assistance in Environmental Law and Institutional Development in Environment – Focus, Methodology and Resources Bonn 1998 at p.19, all countries should attempt to establish a general legal basis for the management of wastes. 1 The 2 The
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THE MANAGEMENT OF HAZARDOUS AND TOXIC WASTE Hazardous and toxic waste is produced by a wide variety of industry, the mining sector and the health sector. If not adequately managed this waste may contaminate land, groundwater and other water resources. There has been little incentive to date for industry to reduce, treat, or manage carefully the handling and disposal of hazardous and toxic waste. In 1998, it was stated that there was little compliance with the government’s hazardous waste regulations.4 BAPEDAL has set up the Partnership Program in Hazardous Waste Management (Program Kemitraan Dalam Pengelolaan Limbah B3)(KENDALI B3) as a ‘strategic partnership program’, which aims to increase awareness among hazardous waste producers about the regulation of hazardous waste and the need for compliance. Under this program, an increasing number of companies are applying for permits to manage their hazardous waste and have installed treatment facilities. Key issues have been identified as: poor practice in handling and disposing of hazardous wastes; harm to public health; and the legacy of accumulating contamination. Government Regulation No. 18 of 1999 regarding the Management of Hazardous and Toxic Waste Peraturan Pemerintah No. 18 Tahun 1999 Tentang Pengelolaan Limbah Bahan Berbahaya Dan Beracun and Government Regulation No. 85 of 1999 regarding Amendment of Government Regulation No. 18 of 1999 regarding the Management of Management of Hazardous and Toxic Waste PP No.85 Tahun 1999 tentang Perubahan Atas Peraturan Pemerintah No. 18 Tahun 1999 tentang Pengelolaan Limbah Bahan Berbahaya Dan Beracun Government Regulation No. 18 of 1999 regarding the Management of Hazardous and Toxic Waste (Peraturan Pemerintah No. 18 Tahun 1999 Tentang Pengelolaan Limbah Bahan Berbahaya dan Beracun) (PP 18/99) is the primary regulation relating to the management of hazardous and toxic waste. It was passed pursuant to UU 23/97. It was subsequently amended by Government Regulation No. 85 of 1999 regarding Amendment of Government Regulation No. 18 of 1999 regarding the Management of Management of Hazardous and Toxic Waste (PP No. 85 Tahun 1999 tentang Perubahan Atas Peraturan Pemerintah No. 18 Tahun 1999 tentang Pengelolaan Limbah Bahan Berbahaya dan Beracun) (PP 85/99). Definitions Hazardous and toxic waste (limbah bahan berbahaya dan beracun) (B3) is defined in both UU 23/97 and PP 18/99 as follows: The remains of an effort or activity that contains hazardous or toxic material that due to its characteristics and/or concentration/ and or quantity, both direct and indirect, is able to pollute or damage the environment and/or able to endanger the environment, health, humans and other living things (art 1(1)
Further definition as to whether waste will be regarded as B3 is provided in articles 6, 7 and 8 of PP 85/1999.
4 CIDA
and BAPEDAL, Pollution Control – Strategic Directions and Priority Programs May 1998 p.19.
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Scope of the regulation Toxic waste frequently takes the form of sludge. The following industries have been identified as producing sludge from the liquid waste treatment plants:5 Fertilizer; pesticide; processes using chloro alkali; adhesive resins; polymers; petrochemicals; wood processing; processing iron and steel; lead smelting; copper smelting and purification; dyes for paper; plastic and textiles; textiles; manufacture and assembling of vehicles and machines; electroplating and galvanising; paints and varnish; dry batteries; wet batteries; exploration and production of oil and gas; refining oil and gas; tanning; colour substances and pigments; pharmaceutical products; liquid waste treatment and paper.
Other industries that produce sludge or other forms of chemical waste from processes include: petrochemicals, steel treatment, mining, hospitals, research and commercial laboratories, photographic studios, coke production, oil recycling, animal fat processing, processing of non-ferro metals, metal hardening, metal and plastic shaping, laundry and dry cleaning, glass and ceramics, photocopying and vehicle workshops.
These industries will not be caught by the licensing provisions of the B3 regulations, unless the processing of the sludge is their primary activity. They will, however, be caught by the general obligations and prohibitions. The failure to install a waste treatment plant, the installation of an ineffective plant or the disposal of sludge from the plant to a watercourse or to land will have a negative impact on the environment, particularly soil and groundwater quality. Unless an industry falls within the category of an activity listed as requiring an AMDAL, there will be no environmental assessment of the activities of such industries apart from the assessment that is made in the UKL and UPL discussed in Chapter Six. The UKL and UPL are therefore very important in this regard. Small to Medium Sized Enterprises (SMEs) are caught by the definition of hazardous and toxic waste, as there is no qualification based on the total amount of waste produced. However, the regulations do not acknowledge the different features of the smaller scale industry. Neither is this reflected in the arrangement of institutional responsibilities. For example, an obligation could be imposed on district government to carry out a survey of existing small industry and identify sources of pollution. The survey could identify and characterise the waste that is being produced. The government could also be obliged to negotiate with small-scale industry to find a means for managing the waste. This could involve the establishment of local collection and processing centres funded or subsidized by a user-pays system. Prohibitions UU 23/97 prohibits the import of B3 (art 21) as does article 53 (1) of PP 18/99. Other prohibitions that are set out in UU 23/97 discussed in Chapter Five apply in relation to the disposal of B3. There is also a prohibition in PP 18/99 to the effect that every person who carries out a business or activity that produces B3 is prohibited from disposing of the B3 directly to the environment without pre-processing (art 3). There is also a prohibition against any person or enterprise that carries out the activity of saving, storing, transporting or processing waste against dilution of the waste so as to reduce the concentration of dangerous substances (art 4).
5
Government Regulation No. 85 of 1999 regarding Amendment of Government Regulation No. 18 of 1999 regarding the Management of Management of Hazardous and Toxic Waste (PP No.85 Tahun 1999 tentang Perubahan Atas Peraturan Pemerintah No. 18 Tahun 1999 tentang Pengelolaan Limbah Bahan Berbahaya Dan Beracun) – Appendix 1 Table 2
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Obligations Numerous obligations are imposed in relation to those that store, collect, exploit, process or stockpile B3. For example, an obligation is imposed on every person that carries out a business or activity that uses B3 or produces B3 to carry out reduction measures, process the B3 and/or stockpile B3 (art 9(1)). An obligation is imposed upon every person that produces B3 to process the waste in accordance with existing technology (art 9(3)). There are also detailed obligations in relation to record keeping, the use of symbols to indicate the presence of B3, safety procedures and licensing. Licensing The licensing provisions for the control of B3 are stronger than other pollution control measures. The activities for which there is an obligation to obtain a licence are: storage, collection, exploitation, processing and/or stockpiling (art 40(1) a.). An enterprise will require one or more licences to control and manage its waste. The conditions that are to be contained in the licence are set out (art 40(4)) and include the means by which pollution may be prevented (art 40(4) j.). In practice, BAPEDAL will not license an enterprise that does not store, collect, exploit, process, or stockpile hazardous waste as its primary activity.6 Thus, for example, an enterprise, which produces toxic waste as a by-product of manufacturing, will not be licensed by BAPEDAL and is likely to be unlicensed in relation to waste disposal. Other licences that are required are: 1. The transportation licence The licence for transporting B3 is granted by the Minister for Communications after a recommendation from BAPEDAL (art 40(1)b.). 2. The processing licence (izin pemanfaatan) This licence is obtained from “the agency that has authority” after receiving a recommendation from BAPEDAL (art 40(1)c.). 3. The location licence This licence is needed for the processing and stockpiling of B3. It is obtained from the Head of the Office Land Affairs at the District level after receiving a recommendation from BAPEDAL (art 42(1)). It can be seen that each of these licences is issued by a different government agency and that a licensing decision is to be made after receiving a recommendation from BAPEDAL. Monitoring Oversight of the processing of B3 is to be by the Minister, implemented by BAPEDAL but in the regions it is to be done in the regions according to systems designed by BAPEDAL. A Report of the Minister for the Environment has questioned the capacity of BAPEDAL to meet this responsibility.7 In line with regional autonomy, certain responsibilities will have to be assumed by provincial and district government. The delineation of this authority needs close attention. 6 Information
received from BAPEDAL officer. Minister for the Environment, Laporan Kegiatan ASDEP Evaluasi Penerapan Hukum Deputi Bidang Hukum Lingkungan 2000 p.64. 7 State
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Public access to information Rights and responsibilities are established in PP 18/99 for the receipt and the provision of information. Every person is given the right to information on the management of B3 and the responsible authority is obliged to provide such information (art. 54). There is also a right granted to every person to report the existence of a potential or actual occurrence of pollution or environmental damage caused by B3 (art. 55(1)). Such a report is to be given to BAPEDAL or other government office. There is an obligation upon the agency that receives the report to provide a follow up report to the community. It is stated that the reporter and the interested community must be kept informed as to the process of action that is taken (art. 56). These provisions are to be expanded by way of a Ministerial Decree (art. 57). THE MOVEMENT OF HAZARDOUS WASTE As mentioned above, the transportation of hazardous waste requires a licence. The licence application is considered by the Minister for Communications and may be granted after receipt of a recommendation from BAPEDAL. This aspect of the management of hazardous waste has not been dealt with in the report. The transportation of hazardous waste and environmental responsibility in this regard is an area suitable for further research. Laws and regulations that are likely to be relevant include:
Act No. 14 of 1992 regarding Traffic and Road Transport (Undang-undang No. 14 Tahun 1992 tentang Lalu Lintas Dan Angkutan Jalan)
Government Regulation No. 44 regarding Vehicles and Drivers (Peraturan Pemerintah No. 44 Tahun 1993 tentang Kendaraan Dan Pengemudi)
In relation to the import and export of hazardous waste, the Basel Convention On The Control Of Transboundary Movements Of Hazardous Wastes And Their Disposal was ratified by Presidential Decree No. 61 of 1993 (Keputusan Presiden No. 61 Tahun 1993 tentang Pengesahan Basel Convention On The Control Of Transboundary Movements Of Hazardous Wastes And Their Disposal) Subsequently the following regulations were passed:
Decision of the Minister for Industry and Trade No. 137 of 1996 regarding the Procedure for Imports (Keputusan Menteri Perindustrian Dan Perdagangan No.137/MPP/Kep/6/1996 tentang Prosedur Impor Limbah)
Decision of the Minister for Industry and Trade No. 231 of 1997 regarding the Procedure for Importing Waste (Keputusan Menteri Perindustrian Dan Perdagangan No. 231 Tahun 1997 tentang Prosedur Impor Limbah)
The extent to which Indonesian law complies with commitments made in ratifying the convention is an area that requires further research. CONTAMINATED SOIL The wrongful disposal of liquid or solid waste, or the spillage of hazardous and toxic material, is able to contaminate soil. It is generally acknowledged that the control of waste is particularly important for soil
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protection. Environmental and human health problems at industrial sites, with a history of dumping wastes have been widely acknowledged in other countries. The provisions relating to the dumping of liquid waste to land in PP 82/2001 (reviewed in Chapter Seven) are limited and are not designed to address the wider issue of contaminated land. Over the period 1998-2001, the KENDALI B3 program included the identification of contaminated sites and the preparation of advice on action needed for clean up.8 At present, however, there are no guidelines for the assessment of contaminated sites in Indonesia, neither is there a legal regime for the remediation of contaminated sites. INSTITUTIONAL AUTHORITY A decision of the head of BAPEDAL addresses the issue of the respective roles of each level of government regarding the management of hazardous waste. Decision of the Head of BAPEDAL No. 2 of 1998 regarding the System for the Implementation of Oversight of the Management of Hazardous and Toxic Waste (B3) in the Regions (Keputusan Kepala BAPEDAL No. 2 Tahun 1998 tentang Tata Laksana Pengawasan Pengelolaan Limbah Bahan Berbahaya Dan Beracun Di Daerah) envisages district government as having an oversight role. This role includes authority to make an inventory of all businesses that produce, process, or stockpile B3. The district level is also to assist BAPEDAL with the monitoring of those businesses that have been licensed by BAPEDAL for the processing of B3 (art 2). Provincial government is conceived as having authority to oversea and coordinate BAPEDALDAs at the district level where B3 has the potential to cause pollution that crosses over districts (art 3(2)-(3)). Similarly, central government has authority where B3 has the potential to cause pollution that crosses over provinces. Notably the decision of the head of BAPEDAL is only a guideline. As such, it needs to be converted into a legal form at the regional level before it becomes binding. This means that the provinces and districts need to pass Perda implementing the terms of the guideline. Authority for the management of hazardous and toxic waste has not been allocated to a level of government in the regional autonomy laws and regulations (PP 25/2000). Given the level of uncertainty in this regard, this aspect should be clarified. CONCLUSIONS AND RECOMMENDATIONS – THE MANAGEMENT OF TOXIC WASTE Regional autonomy The role of BAPEDAL needs to be reconsidered in view of regional autonomy and the need for the establishment of waste processing units in the regions. Institutional arrangements need to be established at the regional level. For example, consideration could be given to the establishment of a single authority at the regional level that is responsible for all aspects of managing hazardous waste including minimization, the storage, handling and transport of wastes and the treatment of waste so as to make it harmless for disposal. This would require amendment to the laws and regulations at the national level. It would also require Perda to be passed at the regional level. In particular, responsibility for licensing, monitoring management practices and enforcement will need to be assumed at the regional level and presently there is little legislative provision in this regard. Issues that 8 CIDA
and BAPEDAL, Pollution Control – Strategic Directions and Priority Programs May 1998 p.20.
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arise include whether BAPEDALDAs are to have this responsibility. Are they to take over the licensing authority for the processing of waste treatment previously held by BAPEDAL? Is there to be a gradual handover, starting with storage and collection? What enforcement power will the BAPEDALDAs have regarding hazardous and toxic waste? Storage, collection, exploitation, processing and stockpiling of hazardous waste as a secondary activity The national regulations (PP 18/99 and PP 85/99) concern those facilities that have as their primary activity the storage, collection, exploitation, processing and/or stockpiling of hazardous waste. They do not make provision for different scales of production of hazardous and toxic waste or the processing of waste as a secondary activity of an enterprise. This aspect requires further attention. SMEs SMEs are caught by the definition of hazardous and toxic waste. The regulations do not, however, acknowledge the special features of SMEs in terms of the different institutional arrangements that may be required to deal with SMEs. This area is suitable to be addressed at the district level. Regulations are needed that acknowledge the features of the different scales of industry that produce toxic waste and the different management systems that can be introduced to match the features and needs of industry. In particular, attention needs to be given to the handling toxic waste byproducts from SMEs and the sorts of arrangements that may be available at the local level to deal with managing toxic waste produced by SMEs. For example, obligations could be imposed on district government to carry out a survey of existing small industry and identify sources of pollution. It could be stated that the survey is to identify and characterise the waste that is being produced. The government could also be obliged to negotiate with small-scale industry as to means for managing the waste. This may involve the establishment of local collection and processing centres. Licensing Activities related to B3 require a number of licences. A structure for coordination needs to be reconsidered in light of regional autonomy. If a licensing system established at the regional level for effluent discharges does not deal with B3, there will be a gap between the licensing of wastewater discharges and the management of hazardous and toxic waste as a secondary activity. The extent to which effluent licensing covers the discharge of B3 needs to be looked at. Contaminated land There is an absence of the law regarding the management of contaminated land. It may not be realistic to attempt to set up a regime for the clean up of contaminated sites, however, it would be advisable to start to collect data on the incidence of contaminated land which could then be used in land use planning controls. In relation to contaminated land issues, the provisions of the regulation regarding water pollution control that have a bearing on land contamination could be extracted and more specific provisions drafted regarding obligations, prohibitions and sanctions for the disposal of waste to the ground through the spilling, leakage or dumping of industrial waste
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Public participation Public access to information regarding hazardous and toxic waste and contaminated land needs to be provided with procedural detail at the national level so that they are applicable automatically at the regional level. THE MANAGEMENT OF NON-TOXIC WASTE The report does not review the legal provisions regarding the management of non-toxic waste. However, some general comments are made. Industrial waste The management of non-toxic industrial waste is usually conceived of in terms of pollution control. In this regard, reference is made to Chapters Seven, Eight and Nine on water and air pollution control. Non-toxic industrial waste may also take the form of solid and liquid waste that requires storage or disposal. The legislation regarding landfill are beyond the scope of this report and would be a useful topic for further research. The management of domestic waste Domestic or household waste consists of sewerage, waste from sinks and drains (liquid waste), and garbage (solid waste). The management of domestic waste in Indonesia is usually poor. The removal and treatment of domestic waste is usually considered a function of district government. In this regard, it would be useful to investigate the legal provisions at the district level. Liquid waste It is estimated that approximately 60% of domestic liquid waste goes into drainage systems which contaminate surface and groundwater.9 Thus, domestic waste has a major impact on water quality. It is often commented that there is a lack of commitment from local officials in supporting improved sanitation. However, low cost neighbourhood level sanitation projects may provide a vehicle for employment. There is a need for specific sanitation projects and programs that cover domestic and small-scale wastewater treatment systems. There is also a need to integrate community and government activities in this regard. Solid waste management Most cities struggle with the collection and sanitary disposal of solid wastes. For example, it has been estimated that only 60 percent of the 6,600 tonnes of domestic solid wastes generated each day in Jakarta is collected and transported to a final disposal site.10 Garbage is often dumped openly without appropriate treatment. It is often burnt, or disposed of in streams or on open land. Disposal of waste to landfill does not address the increasing volume of waste that needs to be disposed of. In other countries, there is a concern with the amount and type of waste that is consigned to landfill, particularly in view of land shortages in urban areas. This has led to a change of emphasis away from the landfill solution towards prevention and recycling of waste. Of particular concern is the amount of plastic that is generated as waste. It has been estimated that in Jakarta alone about 1,500 tons of plastic waste needs to be managed on a daily basis and possibly up to 9 ibid
p.11. Development Bank, Country Operational Strategy: Indonesia March 2001 p.83.
10 Asian
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4,400 tons per day across Indonesia.11 An integrated garbage management system is needed for all kinds of garbage, which combines recycling, composting, incinerating and sanitary landfill. Legal measures for reduction and management of waste There is no national law that specifically addresses waste minimisation, prevention and recycling. There could be a role for central government in drawing up waste reduction plans for particular industries. These plans could be designed to minimise the amount of waste created by the industry; ensure greater industry responsibility for waste reduction; and encourage an efficient and cost effective approach to industry waste reduction. Although BAPEDAL has a Cleaner Production Program that addresses issues of waste minimisation, a stronger legal framework would include such features as formal Ministerial approval of a waste reduction plan and offence provisions (should there be a failure to carry out the plan). Waste minimisation and management plans are needed at the provincial and district level. Waste recycling and processing services need to be established at the regional level with institutions that have responsibility for setting up and running facilities including water based (aqueous) treatment facilities, facilities related to the disposal of liquid waste and sludge, solid waste disposal and treatment and disposal of domestic and industrial waste. Agreements could be entered into with the private sector in this regard. Volume based pricing systems could be introduced. Waste facilities in turn need to be licensed, as do transporters of waste. Enforcement provisions are needed in relation to illegal activities such as illegal waste disposal on land. All of these developments would have to be based on the development Perda, which would be assisted by guidelines passed at the central government in a form that could be readily converted to regulations. CONCLUSIONS AND RECOMMENDATIONS - THE MANAGEMENT OF NON-TOXIC WASTE The legislation regarding landfill would be a useful topic for further research, as would be the regulations that exist at the regional level on the management of non-toxic waste (including domestic liquid waste and industrial solid waste). Difficulties in handling domestic liquid waste could be resolved through low cost neighbourhood level sanitation projects that cover domestic and small-scale industry. Such projects could integrate community and government activities. Perda would need to be drafted to support such activities. In relation to the disposal of solid waste there needs to be a change of emphasis away from the landfill solution towards prevention, recycling and integrated garbage management. This could be supported by national law that specifically addresses waste minimisation, prevention and recycling. Central government could draw up industry waste reduction plans for particular industries within a legal framework that includes formal Ministerial approval of a waste reduction plan and offence provisions. Waste minimisation and management plans are also needed at the provincial and district level supported by Perda and governing the establishment of waste recycling and processing services, volume based 11 Bayu
Dwi, “Plastics Pose Environmental Dilemma” Jakarta Post 23, October 2001.
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pricing, licensing and contractual relationships with the private sector. The drafting of Perda would be assisted by national guidelines prepared in a form that is readily convertable to a regulation.
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CHAPTER 11 - MANAGEMENT OF INDUSTRIAL AND AGRICULTURAL CHEMICALS Chemicals, fertilizers, pesticides, herbicides, radioactive substances and other toxic substances may become hazardous pollutants if their availability, use and disposal is not managed and controlled. The effects of exposure may be serious although they may take a long time to manifest, perhaps up to 20 to 30 years. Many countries have established systems of assessment to examine the suitability of chemicals for production and use. These systems usually include a community right to know policy and program. It is appropriate to deal with these issues at the national level because of the potential for widespread health and environmental implications and the high level of technical expertise required in their assessment, certification, and control. INDUSTRIAL CHEMICALS There is no national statute that addresses the assessment of the environmental risk posed by the use of hazardous and toxic chemicals. The following legislation, however, is relevant to hazardous and toxic chemicals: 1. 2. 3. 4.
The Dangerous Substances Ordinance 1949 (Ordonansi Bahan Berbahaya Stbl 1949 No. 377); Act No. 10 of 1961 regarding Goods (Undang-undang No. 10 Tahun 1961 tentang Barang) Act No. 5 of 1984 regarding Industry (Undang-undang No. 5 Tahun 1984 tentang Perindustrian) Act No. 14 of 1992 regarding Traffic and Road Transport (Undang-undang No. 14 Tahun 1992 tentang Lalu Lintas dan Angkutan Jalan); 5. Act No. 21 of 1992 regarding Shipping (Undang-undang No. 21 Tahun 1992 tentang Pelayaran); 6. Act No. 23 of 1992 regarding Health (Undang-undang No. 23 Tahun 1992 tentang Kesehatan); 7. Act No. 7 of 1994 regarding the Ratification of the Agreement Establishing The World Trade Organization (Undang-undang No. 7 Tahun 1994 tentang Pengesahan Persetujuan Pembentukan Organisasi Perdagangan Dunia)
Currently, the regulation of industrial chemicals falls within the field of responsibility of the Ministry for Health and the Minister for Industry and Trade. The Minister for Health has passed Ministerial Regulation No. 472 of 1996 regarding the Security of Hazardous Substances for Health (Peraturan Menteri Kesehatan No. 472 Tahun 1996 tentang Pengamanan Bahan Berbahaya Bagi Kesehatan). Sectoral regulations from the Department of Industry include the following: 1. Ministerial Decree No. 148 of 1985 regarding the Security of Hazardous and Toxic Substances for Industry (Keputusan Menteri Perindustrian No. 148 Tahun 1985 Tentang Pengamanan Bahan Beracun Dan Berbahaya Di Perusahaan Industri) 2. Ministerial Decree No. 254 of 2000 regarding the Import and Circulation of Stipulated Hazardous Substances (Keputusan Menteri Perindustrian Dan Perdagangan No. 254 Tahun 2000 Tentang Tata Niaga Impor Dan Peredaran Bahan Berbahaya Tertentu) Time does not permit an examination of the provisions of these regulations. The observation is made, however, that there is no specific law relating to the environmental risk posed by hazardous or toxic chemicals.
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AGRICULTURAL CHEMICALS - PESTICIDES Introduction The government introduced an Integrated Pest Control program in the late 1980s. By 1995, it had trained nearly 200,000 farmers in the use of pesticides but despite these efforts, according to the Indonesia Country Report, in 1997 many pesticide products banned in their country of origin remained in common use in Indonesia.1 Institutional responsibility According to Regulation Number 25 of 2000 Regarding the Authority of Government and Authority of the Regions in Regional Autonomy (Peraturan Permerintah Republik Indonesia No. 25 Tahun 2000 Tentang Kewenangan Pemerintah Dan Kewenangan Propinsi Sebagai Daerah Otonomi) (PP 25/2000), in relation to pesticides and dangerous agricultural chemicals, the Minister for Agriculture has authority for their registration, oversight of production, circulation, use and eradication (PP 25/2000 2(3)1b). The Minister for Forestry and Estate Crops has authority for the setting of criteria, standards of production, management and the control of quality of pesticides (PP 25/2000 2(3)4h). A Pesticide Commission has been established to coordinate the national effort to manage the use of pesticides. The effectiveness of the Pesticide Commission in achieving coordination between the two Ministries is not a subject that has been considered in the report. Definitions A pesticide is defined in Act No. 12 of 1992 regarding Crop Cultivation (Undang-undang No. 12 Tahun 1992 tentang Sistem Budidaya Tanaman) (UU 12/92) as: a substance, chemical compound, regulated substance, stimulus for growth, microscopic organism, virus or other matter that is used to protect plants.
The different uses of pesticides are identified in Government Regulation No. 7 of 1973 regarding Oversight of the Circulation, Storage, and Use of Pesticides (Peraturan Pemerintah No. 7 Tahun 1973 tentang Pengawas Atas Peredaran, Penyimpan dan Penggunaan Pestisida) (PP 7/73) (art 1). Government authority The government has authority to: determine standards for the use of pesticides (UU 12/92 art 38(2)); make a register of pesticides; and oversea their use (UU 12/92 art 39). This includes licensing pesticide use. A licence is to be granted if the pesticide is considered to be “effective, safe and to fulfill technical conditions” (PP 7/73 art 4(1)) as set out in regulations passed by the Minister (PP 7/73 art 4(2)). The procedure for the application and registration of pesticides is set out in Letter of Decision of the Minister for Agriculture No. 280/Kpts/Um/8/1977 regarding the Procedure for the Application and Registration of Pesticides (Surat Keputusan Menteri Pertanian No. 280/Kpts/Um/8/1977 tentang Prosedur Permohonan dan Pendaftaran Pestisida). This has been more recently followed up with Ministerial Decree
1 State
Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997 p. 34.
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No. 543/Kpts/TP.270/7/96 regarding the Registration and Licensing of Pesticides (Keputusan Menteri Pertanian No. 543/Kpts/TP.270/7/96 tentang Pendaftaran dan Pemberian Izin Sementara Pestisida). Prohibitions The government is also able to prohibit or limit the circulation and use of pesticides (UU 12/92 art 40). These aspects are anticipated to be the subject of further regulation. PP 7/73 introduced a prohibition against the use of unregistered pesticides (PP 7/73 art 2). Licensing Ministerial Decree No.949/Kpts/TP.270/12/98 regarding Restricted Pesticides (Keputusan Menteri Pertanian No. No.949/Kpts/TP.270/12/98 tentang Pestisida Terbatas) (K.MenTani 949/1985) provides for licensing pesticides including categorisation of pesticides, assessment by the Pesticide Commission and an appendix which lists the restricted pesticides (art 2). An examination of the licensing provisions is outside the scope of the report, however, it is noted that the following ministerial decrees apply to licensing of pesticides:
Ministerial Decree No.541/Kpts/Tp.270/7/96 regarding the Registration and Provision of Final Pesticide Licences (Keputusan Menteri Pertanian No. 541/Kpts/Tp.270/7/96 tentang Pendaftaran Dan Pemberian Izin Tetap Pestisida)
Ministerial Decree No.543/Kpts/Tp.270/7/96 regarding the Registration and Provision of Provisional Pesticide Licences (Keputusan Menteri Pertanian No. 543/Kpts/Tp.270/7/96 tentang Pendaftaran Dan Pemberian Izin Sementara Pestisida)
Ministerial Decree No.544/Kpts/Tp.270/7/96 regarding the Registration and Provision of Licenses for Pesticide Technical Matter (Keputusan Menteri Pertanian No.544/Kpts/Tp.270/7/96 tentang Pendaftaran Dan Pemberian Izin Bahan Teknis Pestisida)
Obligations An obligation is imposed upon users of pesticides to destroy prohibited pesticides, unregistered pesticides and pesticides that do not meet requirements regarding standards (UU 12/92 art 41). Obligations are established regarding the listing of pesticides, the fulfillment of quality standards, and labeling (UU 12/92 art 38(1)). According to K.MenTani 949/1985 mentioned above, all users of pesticides must possess a certificate (art 5). Oversight Ministerial Decree No. 536 of 1985 regarding the Oversight of Pesticides (Keputusan Menteri Pertanian No. 536 Tahun 1985 tentang Pengawasan Pestisida) (K.MenTani 536/1985) sets out the provisions regarding oversight. It is recognised that oversight falls within the field of farming, health and manpower and other sectors (art 1) Those who carry out oversight are responsible to the leader of each sector (art 3). The tasks of those involved in oversight are also set out (art 4). Those tasks include investigation into: the storage, circulation and use of pesticides; the types, quality and amount of pesticides being used; containers, wrapping, tables and publications;
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tools and implements being used, as well as things and matter that contains the residue of pesticides. The authority to carry out these tasks includes the right to enter, take samples and carry out analysis (art 5). Coordination of oversight is particularly important. It is provided for in K.MenTani 536/1985, which states that within central government it is to be carried out by the Chairman of the Pesticide Commission (art 9(1)). At the regional level, the governor with the assistance of the Head of the Department of Agriculture is to coordinate officials tasked with oversight. At the district level, the mayor is to coordinate officials tasked with oversight with the assistance of the District Head of the Department of Agriculture (art 9(2)). Sanctions Administrative sanctions are established in K.MenTani 949/1985. Administrative sanctions in the form of a warning or the revocation of a certificate may be imposed by the provincial government. The Minister may revoke a licence (art 9(1). A pedoman in this regard is to be produced by the Pesticide Commission. Criminal offences are established under the Act for intentional or negligent breaches of obligations and prohibitions (UU 12/92 art 60(1)-(2)). They are also established under PP 7/73 in relation to the prohibitions and obligations contain in PP 7/73. There are also other provisions in Act No. 12 of 1992 regarding Cultivation (Undang-undang No. 12 Tahun 1992 tentang Sistem Budidaya Tanaman) which establish liability for intentional or negligent actions, such as the circulation of a pesticide that is not registered or that is not in accordance with a label (art 60(1)g.), and the failure to destroy a pesticide that is prohibited or not registered (art 60(1)h.). An analysis of each of these provisions has not been made in the report. An issue could arise as to how they are to be enforced, in view of re-arranged institutional authority under regional autonomy. CONCLUSIONS AND RECOMMENDATIONS Further research The adequacy of the legal system to control the use of pesticides is an area that has been less completely researched than other aspects of environmental law covered in the report. It is an area in need of some detailed study, particularly in view of its technical aspects. Subjects that could be further researched are licensing, institutional responsibility, alternatives to licensing (including non-legal alternatives) and coordination between the different sectors involved with pesticide use at the local level. The conclusions and recommendations made below are tentative and general only. Regional autonomy The management of pesticide use is still centralised. PP 25/2000 does not specifically allocate authority for pesticides to the agricultural sector in the regions, although in relation to the forestry and plantation sector, regional government is given authority for the oversight of the use of pesticides (art 3(5)4k). Further consideration needs to be given to the allocation and refinement of operational authority to take into account the practicalities of implementing controls over the distribution and use of pesticides in the agricultural sector. Consideration could be given to the need for specific provisions on the disposal of pesticide waste rather than relying on the B3 regulations passed more generally in relation to hazardous and toxic waste. It is noted that pesticides have been referred to in a decision of the head of BAPEDAL regarding the System for 158
the Implementation of Oversight of the Management of Hazardous and Toxic Waste (B3) in the Regions (Keputusan Kepala BAPEDAL 2/1998 tentang Tata Laksana Pengawasan Pengelolaan Limbah Bahan Berbahaya Dan Beracun Di Daerah) as discussed in Chapter Ten. This conceives of an oversight role at the district level including the making of an inventory of businesses that produce, process or stockpiles pesticides to assist BAPEDAL with the monitoring of businesses that have been licensed by BAPEDAL for the processing of B3 (art 2). Sanctions In relation to sanctions, a major problem is that it is almost impossible to police the use of pesticides. Clarification and further detail is required in relation to the imposition of sanctions at the provincial and district levels of government. This could be achieved through central government regulations or regional Perda. Detailed administrative sanctions could be provided by way of regulation. Additional criminal offences should be considered such as a strict liability offence to use a pesticide not in accordance with directions on permits or label (for a discussion of strict liability in criminal offences see Chapter 22).
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PART C - SPATIAL PLANNING Planning can be divided conceptually into the following: environmental management planning; spatial planning; and natural resources management planning Environmental management planning has been mentioned in Part B. It involves the making of inventories, the determination of the status of the quality of a particular environmental media and the formulation of a plan to manage the quality of the media. Spatial planning will be reviewed in Part C. Natural resources management planning will be reviewed in Part D. All planning provides the opportunity for projective coordination of individual, sectoral and community interests. The different forms of planning also need to be coordinated with each other. Coordination is linked to the provision of information. A key coordinative activity is the exchange of information within and between different forms of planning. This sort of exchange provides the opportunity to harmonise environmental goals and objectives. As is stated in Act No. 24 of 1992 regarding Spatial Planning (Undang-undang No. 24 Tahun 1992 tentang Penataan Ruang) (UU 24/92), spatial planning includes in its scope “the planning of the structure and pattern of the use of space including land, water, air and other natural resources” (art 14(2)). Spatial planning establishes the locational and physical framework for carrying out the various activities of society including the use of natural resources. It also establishes the foundation for land use in Indonesia. As most environmental law is essentially about land use (even laws that focus on the use of air and water are related to land use), spatial planning law an important part of environmental law. The functions of spatial planning potentially include the following: 2 (1) Coordination: the reconciliation of individual, sectoral, and community objectives with regional objectives; (2) Regulation: the control of land use through the allocation of defined uses and the imposition of conditions on use, so as to reduce social conflict, optimise the benefits of use, and protect the environment; (3) Information: the gathering and processing of information on planning issues; (4) Socialisation: the involvement of local communities in protecting the quality of their environment; and (5) Mediation: provision of channels of communication between the district, regional and national levels of government. Through the formulation of the spatial plan, it is possible to integrate the activities of the private and public sectors and the community. Difficulties posed for spatial planning in Indonesia arise from an inadequate legal framework and a lack of planning procedure. Other difficulties, not related to the legal system, derive from a weakness within institutions at the provincial and district levels, a lack of financial and human resources and an absence of environmental awareness in the community at large.
2 Some
of these functions are listed in German Federal Ministry for Economic Cooperation and Development Environment Handbook, Volume 1 Introduction, Cross-Sectoral Planning Infrastructure, GTZ Germany 1995 p.16.
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Spatial planning consists of two different activities: the formulation of planning controls; and the consideration of applications for development approval within the established system of planning control. Spatial planning controls will be discussed in Chapter 12. Development approval and licenses that need to be obtained by new developments will be discussed in Chapter 13.
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CHAPTER 12 - SPATIAL PLANNING CONTROLS Introduction Planning controls determine the development status of parcels of land cited in the spatial plan. Often planning controls take the form of zoning provisions. The zone states land uses which: are prohibited; may be carried out with consent from the relevant authority; may be carried out subject to conditions issued by the relevant authority; may be carried out without consent. The law plays a number of roles in spatial planning. It may establish the purpose for which a spatial plan may be prepared and the objective to be fulfilled in spatial planning. The law may determine the scope of the plan and the procedure for its formulation, adoption and amendment. It may also determine the legal status of a spatial plan. This chapter will review the system of spatial planning in Indonesia that has been established nationally. Reference will also be made to spatial planning controls that have been passed at the regional level in DIY Yogyakarta. The most prominent feature of spatial planning in Indonesia is the system of Protected Area Management, which will be discussed briefly in this chapter and again in Chapter 19 on the Biodiversity of Flora and Fauna within Protected Areas. SPATIAL PLANNING - GENERAL Act No. 24 of 1992 Regarding Spatial Planning Undang-undang No. 24 Tahun 1992 Tentang Penataan Ruang Act No. 24 of 1992 regarding Spatial Planning (Undang-undang No. 24 Tahun 1992 tentang Penataan Ruang) is the national law on spatial planning. It contains definitions, public participation provisions and sets out the concepts of planning, use and control. Definitions Spatial planning is defined as the process of planning the order of space, use of space and control of the use of space (art 1(2)). Spatial planning is said to be based on: the principle of the use of space for all interested parties in an integrated manner, efficiency (berdaya guna dan berhasil guna), harmony, balance and sustainability (art 2). It defines the terms of spatial planning such as protected areas (kawasan lindung), rural areas (kawasan perdesaan), and urban areas (kawasan perkotaan). Rights The right is granted to every person to enjoy the benefits of space and spatial planning (art 4(1). In this regard every person is granted the right to be informed of spatial plans (art 4(2)(a)), to participate in the compiling of a spatial plan, to use space and control the use of space (art 4(2)(b)), and to receive compensation that is appropriate for conditions that arise as a consequence of the implementation of development activities in accordance with a spatial plan (art 4(2)(c)). These rights are expressed as principles.
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Obligations upon government The right to participate is supported by a provision the effect that spatial planning is to be carried out with the participation of the community (art 12(1)). This is not expressed as a duty that must be carried out, rather it “is to be done” (dilakukan). Elsewhere in the Act, it is said that the government is to “announce and explain the spatial plan to the community” and to “increase awareness and responsibility of the community through explanation, leadership, education and training” (art 25). Obligations upon citizens Obligations are imposed on every person to participate in caring for the quality of space and to obey spatial plans (art 5(1)&(2)). To the extent these obligations are not accompanied by sanctions, they fail to operate legally as obligations. Furthermore, an obligation to participate in an activity is particularly difficult to enforce. Planning, use and control UU 24/92 establishes three concepts: planning, use and control. These concepts are based on the concept of the specified area (kawasan), which includes protected areas (kawasan lindung) and beneficial use areas (kawasan budi daya) (art 7(1). There is also a concept of an administrative area based on the level of government, namely the national area (ruang wilayah nasional), provincial area (wilayah propinsi daerah tingkat I), and district area (wilayah kabupaten/dotamadya daerah tingkat II) (art 7(2)). An area can also be based on location, such as rural areas (kawasan perdesaan), and urban areas (kawasan perkotaan) and specified areas (kawasan tertentu) (art 7(3). Specified areas are another type of area that is determined nationally and is given priority because of its strategic value. It is stated that spatial planning of rural and urban areas is to achieve the ordering of the areas in an “optimal, harmonious, balanced way” (art 10(2)(a). The functions of the rural and urban areas are to be increased in a “balanced way” (art 10(2)(b). Arranging the use of space is to “increase the wealth of the people and to prevent and manage negative impact on the natural environment, the built environment and the social environment” (art 10(2)(c)). These provisions give some guidance as to provincial and district government as to how to go about planning for rural and urban areas. However, they are general in their description and require evaluation as to what is “optimal” or “balanced” and how to prevent and manage negative impacts. Essentially the provisions are statements of principle. In relation to the specified areas, it is envisaged that the management of these areas is to be carried out by government “in accordance with prevailing law” (art 10(4)). Thus, UU 24/92 does not indicate the level of government to be involved. It is stated that management is to increase the function of protected areas and cultural areas (art 10(3)(b)) and to arrange the use of space to increase the welfare of the community and to defend security (art 10(3)(c)). Hence, a human centered approach to specified areas is established. This is an important limitation, as specified areas include nature sanctuaries, national parks, and other preservation zones for which ecological concerns may need to be balanced with human interests. It is stated that planning is to be implemented with attention to (art 11): the natural, built and social environments and the interaction between them; and the financing and management of development as well as capacity building. This section does not provide any clear guidance as to the matters that are to be taken into account in planning at the different levels of government. It therefore should be made more specific, particularly in view of the changed responsibilities brought by regional autonomy.
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1. Planning The planning provisions are set out in articles 13 and 14. There is little detail in relation to the planning process beyond a description of what planning is. It is stated that planning is to be through a process and procedure of compilation (penyusunan) and determination (penetapan) of a plan based on provisions in prevailing regulations (art 13(1)). In article 14, there is a list of what is to be taken into account in the planning process, however, each of the considerations is expressed as a generality. They are stated as including: harmony, the balance of cultural and natural functions, the dimension of time, technology, culture, and security (art 14(1)(a)). Other considerations are: integrated management of natural resources, functions and aesthetics, as well as the quality of space (art 14(1)(b)). Article 14 goes on to state that the scope of spatial planning includes planning the structure and pattern of the use of space including land, water, air and other natural resources (art 14(2). This is an important provision as it provides the basis for the integration of the use of all aspects of the environment. It could be further expanded to provide procedures to coordinate the use of these aspects of space. Further detail is provided in UU 24/92 in separate sections on planning at the national, provincial and district levels discussed below. National planning The Act states that national planning is to form “a strategy” and set a direction for policy on the use of state areas (ruang wilayah negara) including the national aims for spatial planning, the structure and pattern of use of space and the criteria and pattern for managing protected areas, cultural areas and specified areas (art 20(1)). It is to contain a determination of protected areas, cultural areas and specified areas, norms and criteria for use, and guidelines for the control of the use of space (art 20(2)). It is to become a guideline for the formulation of main policy in the national area, the formation of integratedness, connectedness and harmony between areas and sectors, as well as the direction for investment and spatial planning at the provincial and district level (art 20(3)). The period for national planning is 25 years (art 20(4)). Regional Planning Regional planning is to “spell out” the strategy and policy direction on the use of space at the provincial level. It is to include the aims, the structure and pattern of use of space and guidelines for the control of the use of space in the province (art 21(1)). The Act states that the provincial plan contains directions for (art 21(2)): managing protected and cultural areas managing rural, urban and other specified areas expansion of housing areas, forestry, farming, mining, industry, tourism and other areas expansion of housing in villages and urban areas expansion of infrastructure such as transportation, telecommunications, energy, water supply and environmental management expansion of priority areas policy on the use of land, water, air and other natural resources.
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It is to provide a guideline for the formulation of policy, integratedness, locations for investment, and spatial planning at the district level (art 21(3)). The Act does not state that regional plans may create prohibitions and obligations that are legally binding. District Planning The Act states that planning at the district level is to “spell out” planning undertaken at the provincial level (art 22(1). It includes (art 22(3)): managing protected and cultural areas managing rural, urban and other specified areas a system for urban and village development a system for infrastructure such as transport, telecommunication, energy, water supply and management of the environment use of land, water, air and other natural resources (art 22(2)). It is stated that the district plan is to become a guideline for the formulation of policy, integratedness, location of investment and the compilation of detailed plans (art 22(3)). The period for the district plan is 10 years (art 22(5)). Further provision is to be through provincial regulation (art 22(6)). Notably, the procedure to be followed in formulating the district plan is not set out at the national level. Use The Act provides little detail in relation to the use of space beyond a statement that it is to be based on the plan (art 15(1)). There is to be a model (pola) for the management of the use of land, water, air, and natural resources in accordance with the principles expressed in article 2. Provision in this regard is to be by way of regulation (art 16(2)). Control Control of the planning process is stated to be through oversight and the control of the use of space (art 17). Oversight is stated to be implemented through reporting, monitoring, and evaluation (art 18(1)). There is no mention of which level of government or instansi is responsible for oversight, or the authority they have in this regard. There is also no explanation as to what is to be reported upon, monitored or evaluated. In relation to control, article 18(2) states that use of space that is not in accordance with a spatial plan is to be dealt with through the imposition of a sanction in accordance with the prevailing law. It does not address how the use of space in accordance with the spatial plan is to be achieved or the procedures that are to apply in seeking approval to develop in accordance with the spatial plan. The only sanction is that contained in article 26(1), which states that a licence that is not in accordance with a plan made at the district level can be cancelled by the head of the relevant region. In fact, issues of control would seem to be logically separate from oversight of the planning process. Control is more relevant to compliance with the plan once it is in place. UU 24/92 states that the means by which compliance to a plan can be achieved is through licensing carried out at the district level (art 22(4)). There is no detailed procedure in the national legislation as to how a licence is to be granted or what considerations are to be taken into account in relation to the grant of a licence. These aspects will be dealt with further in Chapter 13 in relation to development control.
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Presidential Decree No. 75 of 1993 Regarding Coordination of Spatial Planning Keppres No. 75 Tahun 1993 tentang Koordinasi Pengelolaan Tata Ruang Nasional This Presidential Decree established the National Planning Coordination Board (Badan Koordinasi Tata Ruang Nasional). It has been given a number of tasks including the making an inventory of natural resources, coordination of the implementation of strategy, determination of procedures for managing spatial issues, formulation of policy and coordination of handling and resolving problems that arise at the national and regional level and to give direction to government (Part 3). PUBLIC PARTICIPATION IN SPATIAL PLANNING Government Regulation No. 69 of 1996 Regarding The Implementation Of Rights And Responsibilities And The Form Of Public Participation In Spatial Planning Peraturan Pemerintah No. 69 Tahun 1996 Tentang Pelaksanaan Hak Dan Kewajiban, Serta Bentuk Dan Tata Cara Peran Serta Masyarakat Dalam Penataan Ruang This regulation develops the provisions in UU 24/92 regarding public participation. The comment was made in the 1997 Indonesia Country Report that this regulation has yet to be disseminated and understood by the general public and that it does not contain any provisions for sanctions.1 Rights The rights of the community are stated to be rights to (art 2):
participate in the spatial planning process, use space and control the use of space.
be informed in an open way of planning for a district and area and the details of such plans
enjoy the benefits of space and or the added value of space arising from planning
receive suitable compensation for environmental damage suffered as a result of activities carried out in accordance with a plan.
These rights are to be implemented in accordance with prevailing law (art 4(1)). If a comparison is made with the rights established in UU 24/92 it can be seen that there is little change. Government obligations Government is required to publish and distribute completed plans at the relevant location (art 3(2)). It is also obliged to distribute information and provide explanation to the community regarding prevailing laws and norms/principles (art 4(2)). Community obligations Obligations are imposed on the community to participate in the protection of spatial quality, to join in the planning process and to comply with plans (art 6). The implementation of these obligations is to be through obeying and complying with criteria, norms, standards that are set by regulation (art 7).
1 State
Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 p.66.
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Three forms of community participation are set out, at the national, provincial, and district levels. Each is general in its provisions. The provisions are not set out as rights but merely as things that are able to be formed (dapat berbentuk). Neither are any clear obligations imposed upon government. They amount to mere statements of policy, stating the forms of participation that may exist and the benefits that may be obtained from public participation at the national level. For example, provision is made for the participation of the community in national spatial planning in terms of providing entrance (pemberian masukan), information, and cooperation in research (art 8). Right to receive compensation The right to receive compensation is to be determined by consultation and negotiation between the affected parties (art 5(1)). If not successfully resolved it is to be done in accordance with prevailing law (art 5(2)). The right to participate Participation at the national level The role of the community at the national level is described as consisting of the provision of assistance in considering policy development and a technical aid (art 9). It is stated that in relation to certain zones, the community is able to increase efficiency, effectiveness, and balance in the use of space based on law, religion, tradition, or norms (kebiasaan yang berlaku). It is able to develop activities based on spatial planning, to change or convert the use of space in accordance with national planning, and to carry out activities to protect and increase conservation of the environment (art 10). It is also able to assist in control of the use of space by oversight, including the provision of information or reports on spatial use and assistance with the imposition of controls over the use of space (art 11). The Act goes on to outline arrangements for public participation at the national level. It is to be achieved through the giving of suggestions, submissions, and opinions concerning information (art 21(1)). This is to be done orally or in written form to the Minister (art 21(2)). A feature of these provisions is that the form of participation is not built into planning procedure or into any of the activities of central government. It merely sets out the benefits that may be gained from public participation and the forms that it may take. In relation to use of space, it is said that the system (tata cara) of public participation is to be in accordance with prevailing law, which is to be passed by the Minister (art 22). In relation to control of the use of space, it is merely stated that public participation can be provided orally or in written form (art 23). Participation at the provincial level Similar provisions as those in place for the national level have been drafted to apply at the provincial level in relation to the planning process, the use of space, and control over the use of space (arts 12-14). It is anticipated that the Minister will make further regulations regarding public participation in planning at the provincial level (art 24(3)). The system regarding the use of space is to be in accordance with existing law (art 25(1)) and implementation is to be coordinated by the governor (art 25(2)). Thus, if the existing law is inadequate this provision adds little. Furthermore, there is no detail as to how the use of space is to be coordinated by the governor. Participation at the district level At the district level, the provisions that apply to the planning process and controls are identical to the provisions that apply at the provincial level (arts 15 & 17). In relation to the use of space at the district level, there are provisions on use of space in urban and rural areas, consolidation of use of land, water, air 167
and other natural resources, as well as access decisions on spatial use (art 16 (b)(d) & (f)). As more detailed planning is carried out at the district level, provision is made regarding public participation (art 18), however, it is expressed in the same way, that is, it is “able to be formed” (dapat berbentuk). A curious addition, is the ability to give funds to the planning process (art 18(f)). It is anticipated that the Minister for Internal Affairs will make further regulations regarding public participation in planning at the district level (art 27(3)). The system regarding the use of space is also expressed to be in accordance with existing law (art 28(1)) and implementation is to be coordinated by the mayor (art 28(2)). An additional provision provides that public participation is to be in a controlled manner (secara tertib) in accordance with the plan (art 28(3)). In relation to public participation in the control of the use of space, it is merely stated that public participation is through making oral and written submissions to the mayor. Fostering public participation In the provisions regarding the fostering (pembinaan) of public participation, it is stated that the community is able to do certain things. This is not expressed as a right or obligation but rather as an ability that exists in principle. It is said that the community is able to obtain information on spatial planning easily and quickly through the printed media, electronic media, and forums (art 30(1)). The community is also able to initiate the effort to increase the implementation of rights and responsibilities of the community through information, guidelines, education, and training to achieve the aims of spatial planning (art 30(2)). Whilst the government is to foster public participation, there is no duty in this regard (art 30(3)). Furthermore, it is to be done by the responsible agency (instansi yang berwenang) without specifically naming which agency (art 30(4)). The means to be used are set out in general terms such as providing information, assistance, technical and legal aid, education and training, distribution of information in an open manner (secara terbuka) and respecting the rights of the community (art 30(4)). These provisions amount merely to statements of principle and neglect to set out exactly who is to do what, and how it is to be done. PROTECTED AREAS Presidential Decree No. 32 of 1990 Regarding the Management of Protected Areas
Keppres No. 32 Tahun 1990 Tentang Pengelolaan Kawasan Lindung As mentioned above, spatial planning relies on 3 concepts: planning, use and control, which are based on the function of the zone (kawasan) including protected areas (kawasan lindung). The management of protected areas is provided for in Presidential Decree No. 32 regarding the Management of Protected Areas (Keputusan Presiden No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung) (Keppres 32/90). The Keppres sets out regulations on the determination and control of protected areas defined as: areas that have as a primary function the conservation/preservation of the environment made up of natural resources and the built environment which has historical and cultural value, in the interest of sustainable development (art 1(1)).
Protected areas are made up of (art 3): 1. Zones that give protection to zones beneath them. 2. Zones that are protective of an area
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3. Nature sanctuaries and heritage areas 4. Zones susceptible to natural disasters. The various categories of protected areas are set out together with the criteria to be applied in establishing them. They consist of the following: Zones that give protection to zones beneath them (art 4): Protected Forests (Kawasan Hutan Lindung), Peat Moss Areas (Kawasan Bergambut), and Soaks/Springs (Kawasan Resapan Air) Zones that are protective of an area (art 5): Beach Borders (Sempadan Pantai), River Borders (Sempadan Sungai), and Areas around Lakes/Lagoons, Reservoirs and Springs (Kawasan Sekitar Waduk, Kawasan Sekitar Mata Air) Nature Sanctuaries (Kawasan Suaka Alam), and Heritage Areas (art 6): Nature reserves: Nature Reserves (Kawasan Suaka Alam), Wild Life Sanctuaries (Kawasan Suaka Margasatwa), Tourism Forests (Kawasan Hutan Wisata), Regions for the Protection of Genetic Resources (Daerah Perlindungan Plasma Nutfah) and Regions for the Protection of Wild Animals (Daerah Pengungsian Satwa) Sea: Sea Nature Sanctuaries (Kawasan Suaka Alam Laut) and other seas areas (Perairan Lainnya) Mangroves: Protected Mangrove Areas (Kawasan Pantai Berhutan Bakau) National Parks: National Parks (Taman Nasional), Grand Forests (Taman Hutan Raya) and Tourist Parks (Taman Wisata Alam) Heritage: Heritage Zones (Kawasan Cagar Budaya dan Ilmu Pengetahuan) Zones that are susceptible to natural disasters. As mentioned above, UU 24/92 states that the provincial plan is to contain directions for managing protected areas (art 21(2)) and the district level of government is responsible for the management of protected areas (art 22(3)). There is no guidance at the national level in this regard. A description of each category and criteria to be applied in their establishment is included in Keppres 32/90. Provincial government is to draw up and determine protected areas through the promulgation of a Perda, an elucidation and a map (scale 1:250,000). District government is to spell out the boundaries of the protected area with a more detailed map (scale 1:100,000) (art 34). Prohibitions A general prohibition applies to all beneficial uses (kegiatan budidaya) within protected areas except those that do not disturb environmental functions (art 37(1)). There is a prohibition against all beneficial uses in nature sanctuaries (kawasan suaka alam) and nature reserves (kawasan cagar budaya) with an exception for activities which are related to their function and do not change the landscape, the land use or the natural ecosystem (art 37(2)). Both these prohibitions are difficult to apply, given the need to interpret their exceptions.
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Permissions Specific permission is granted for mineral and groundwater exploration within protected areas and the exploitation of natural wealth, “where it is of value for the country” (art 38(1)). The meaning of this provision is not elaborated, for example, what is covered by “the exploitation of natural wealth”? How is it to be assessed whether or not it is “of value to the country”? Keppres 32/90 states that such activities are to be licensed in accordance with existing law (art 38(2)). The only constraint on this provision is that the management of the beneficial use is to be done “consistently with the protective function of the zone” (art 38(3)). This leaves wide scope for interpretation. Obligations Where mining is carried out, rehabilitation is to be carried out so that the area is returned to its previous environmental function (art 38(4)). This obligation also requires interpretation in relation to the extent to which it has been returned to its previous environmental function and identification of the function itself. Public participation Keppres 32/90 does not make any provision for public participation. In the article on community awareness it simply states that the district government is to “create awareness within the community” of their responsibility (mengupayakan kesadaran masyarakat akan tanggung jawabnya) in the management of protected areas (art 36(1)). It states that provincial and district government are to publicise the determination of protected areas to the community but there is no provision as to how it is to be done (art 36(2)). There is also no mention of a role for traditional communities in the management of protected areas. Control of protected areas Provisions regarding the control of protected areas are to be the subject of further regulations issued by the Minister after receipt of submissions from the National Coordination Team for Spatial Planning (Tim Koordinasi Pengelolaan Tata Ruang Nasional) (art 38(5)). Any “regulation” issued by a Minister will, however, only operate as a guideline, as it is not a formal source of law. District government is obliged to control the use of space in protected areas (art 39(1)), including monitoring, oversight, and control (art 39(2)). If not carried out, the mayor is obliged to invite the provincial government to process the necessary steps (art 39(3)). Thus, reference needs to be made to Perda passed at the provincial and district level of government to assess the adequacy of mechanisms to control protected areas. If the governor is not able to implement control, he/she is obliged to submit authority to the National Coordination Team for Spatial Planning (art 39(4). The referral up the hierarchy is not established as a power to call in. Rather, the obligation is placed upon the level of government that is not able to meet its responsibilities to refer their authority higher up the hierarchy. A question arises as to how the obligation is to be enforced, if the lower level of government resists handing over its authority?
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REGIONAL SPATIAL PLANNING LAW Regional Regulation No. 5 of 1992 Regarding Spatial Planning In Yogyakarta Peraturan Daerah Propinsi Daerah Istimewa Yogyakarta No.5 Tahun 1992 Tentang Tata Ruang Wilayah Propinsi Daerah Istimewa Yogyakarta Regional Regulation No. 5 of 1992 Regarding Spatial Planning in Yogyakarta (Peraturan Daerah Propinsi Daerah Istimewa Yogyakarta No.5 Tahun 1992 Tentang Tata Ruang Wilayah Propinsi Daerah Istimewa Yogyakarta) (Perda 5/92) is the main regulation providing for the Yogyakarta Spatial Plan (Rencana Tata Ruang Wilayah Propinsi Daerah Istimewa Yogyakarta) (RTRWP DIY). Perda 5/92 sets out the principles, aims, and objectives of the plan. It establishes a right in every person to be informed of the plan, to participate in the composition of the plan, to benefit from the plan and to control the implementation of the plan as well as to enjoy the results of planning (art 6). It also sets up obligations upon every person to comply with the plan and participate in the maintenance of the quality of spatial planning (art 7). It sets out the various functions of the plan (art 8). It also states that the plan implements the National Strategy for the Development of Spatial Planning at the regional level, and in turn, the plan is to become the basis for planning at the district level (art 9). The policy for protected areas and the broad strategy to achieve those goals is set out in Perda 5/92. Provision is also made for beneficial use zones, including zones for agriculture, tourism, human settlement and the military. In relation to urban development and transportation, goals and subject matter for the strategy are set out. There is also a section on strategic regions, which sets out the aim of policy in relation to these regions and the content of the strategy in broad terms. The implementation of RTRWP DIY is simply stated to be through land, water and air use plans, plans for the use of other natural resources, and through the use of incentives and disincentives (art 67(a) & (b)). Implementation is be carried out through a program for spatial use contained in a regulation issued by the governor and development programs prepared by the Provincial Planning Board (Badan Perencanaan Pembangungan Daerah) (BAPPEDA) (art 69). The BAPPEDA program for spatial use has not been reviewed for the report. This subject needs to be followed up, in order to understand the mechanics of planning control at the provincial and district level. A preliminary question is whether this process is sufficiently transparent. Controls and sanctions It is stated that the control of planning is to be by oversight and control (art 70 (1)). Oversight is to be through reports, monitoring and evaluation (art 70 (2)). No explanation is given as to the subject matter for the reports, or the aspects of planning are to be monitored or evaluated. The institution responsible for oversight is also not identified. Control is stated to be exercised through the imposition of sanctions in accordance with regulations (art 70 (3)). There is no further elaboration in this regard. The result of oral enquiries made regarding the detail of oversight and control indicated that these aspects of spatial planning have not yet been addressed by way of further regulation.
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CONCLUSIONS AND RECOMMENDATIONS Regional Autonomy The approach contained in the UU 24/92 is out of step with regional autonomy. In 1997, the BAPPENAS and BPN Institutional Framework Reforms for Land Administration 1997 stated that the first step in decentralisation should be spatial planning at the sub-district level. It was recommended that information gained at the sub-district level should be integrated with district level plans and checked against general guidelines from central government and specific guidelines from district government. Active disclosure of plans and greater public participation in planning was also recommended.2 It can be seen that regional autonomy requires major amendments in the sequence of spatial planning to create a bottom-up approach. According to UU 22/99, the authority for spatial planning is now located at the district level. PP 25/2000 states that the national spatial plan is to be based on the spatial layout design of the districts and provinces (art 2(3)13). Furthermore, regional authority for spatial planning is based on agreement between a province and a district (art 3(5)12). The need for revision is reflected in the provincial regulations also. The Yogyakarta Perda 5/92 adopts a top-down approach where it states that the Yogyakarta plan is to become the basis for planning at the district level (art 9). District government is required to set out in more detail the map of the protected areas (art 28(2)). District government is also required to provide a map of the urban system in detail (art 51). Systems of transportation are to be contained in more detailed maps provided by district government (art 60). It can be seen that this process is envisaged as a top down process, with the regional plan providing the outline and the district government being expected to fill in the detail. This no longer conforms to the conception of government authority contained in regional autonomy. Within regional autonomy, there is a need to define the relationship between the province and district in relation to planning more clearly. A question arises as to the desirability of the province being able to pass policies that are binding upon district government. Examples where this may be particularly relevant arise relation to coastal management, riverside management, and soil conservation. Drafting The provisions in UU 24/92 regarding planning, use and control are very broadly drafted and lack specificity and procedures. They need to be redrafted to comply with regional autonomy and create a bottom-up approach, starting from planning at the sub-district level. Inventory making There is no mention in UU 24/92 of the processes of making an inventory and carrying out an evaluation of natural resources. It is fundamental to planning that an inventory and evaluation of resources precede planning. Unless an inventory is made, it will not be known in a systematic way, the resources to be managed or conserved by a spatial plan. A distinction needs to be made between an inventory as a list of things, and an evaluation of those things (i.e. an estimate of worth). The evaluation of resources will be much more difficult because of the interplay of social, economic and technological factors. Plan making procedure The national legislation does not provide for a procedure for the formulation and amendment of a spatial 2 BAPPENAS
and BPN Institutional Framework Reforms for Land Administration 1997 p.xii.
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plan (including public participation), the role for environmental studies, issues to be taken into account in the formulation of a plan and the legal status of plans. There is also no specific reference in UU 24/92 to goal setting in the spatial planning process. The specification of goals is logically the first step in planning, followed by an analysis of all aspects of the resources to be managed, an evaluation of alternative methods of achieving the goals and the selection of a certain method. Procedural law is needed to establish the purpose for which plans may be prepared and the objectives to be fulfilled, the scope of the plan, the procedure for the adoption of a spatial plan and amendment of plans, and the legal status of the spatial plan. The procedure could include goal setting in the planning process, the making of an inventory of the resources within a spatial planning area and their valuation. Coordination procedure There are no systems set up in legal form for the coordination of spatial planning with other forms of planning. It is generally recognised that different agencies and institutions plan in different ways and often use different tools. This is what occurs in Indonesia, for example, in relation to water resources management. There is no mention of cross-referencing, or the considerations to be taken into account in formulating plans. Neither is there any specific mention of the entities that are to be bound by plans and the ways in which they will be bound. If Yogyakarta Perda 5/92 can be regarded as a typical example, it is likely that Provincial Perda do not contain such provisions either. Control mechanisms The control provisions are drafted very barely at national level and this is likely to be repeated at the regional level. The development of legal measures to control planning decision making is of fundamental importance. This includes the drafting of prohibitions such as a prohibition against spot re-zoning. Public participation It can be seen that as drafted in the national statute, procedures to ensure public participation in spatial planning are lacking. Participation is not built into the planning process. The legislation merely sets out the benefits to be gained from public participation and the forms it may take. Public participation needs to be proceduralised and built into the planning process.
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CHAPTER 13 - THE COORDINATION OF LICENCES, APPROVALS AND MONITORING Introduction In Indonesia, as in many countries, the coordination of environmental planning and regulatory decision- making has provided difficulties. Ideally, planning controls establish the foundation for the implementation of environmental control measures. In Indonesia, new enterprises are required to apply for approvals and licences at specific stages of their establishment. This chapter will briefly describe each approval and the linkages between them, in so far as they relate to environmental control measures. It does not outline all the licences that relate to new enterprises but attempts to begin putting the pieces together, to understand the relationship between each approval. The chapter does not cover mining, forestry or irrigation approvals. It focuses on the approvals required by a new industrial enterprise. The approvals are as follows: Approval/Licence
Government Authority
Letter of Agreement to Capital Investment (Surat Persetujuaan Penanaman Modal) / In Principal Agreement (Persetujuan Prinsip)
Central / Regional Investment Coordinating Board (Badan Koordinasi Penanaman Modal (BKPM)) or Minister for Investment
Location Licence
District government – Head of the Land Use Agency (Badan Pertanahan Nasional) District government – Department for Public Works
Development approval (Izin Mendirikan Bangungan) (IMB) In Principle Agreement (Tahap Persetujuan Prinsip) or Exemption from In Principle Agreement (Tanpa Melalui Tahap Persetujuan Prinsip) AMDAL: KA, ANDAL, RKL and RPL or UKL and UPL
Sectoral agency within provincial or local government
Water Use Licence
BAPEDAL, Regional/Local AMDAL commission or Sectoral agency within provincial government Yet to be clearly allocated – Regional/Local BAPEDALDA Sectoral agency - Department of Public Works
Hinderance Ordinance Toxic and Hazardous Substances Licence (B3)
District government BAPEDAL
Business and/or Activity Licence
Sectoral agency government
Water Pollution Licence
within
provincial
PRELIMINARY APPROVAL Preliminary approval for construction, equipment installation and trial operations The first approval that is required to be obtained by an entity seeking to establish a new enterprise, is approval from the central or regional Coordination Agency for Capital Investment (Badan Koordinasi Penanaman Modal) (BKPM)). As a result of regional autonomy, regional government can grant approval, although at the time of writing, this is under review and it is possible that authority will be returned to the 174
or
or
central BKPM. 1 Presidential Decree No. 97 of 1993 regarding the Arrangement of Capital Investment (Keputusan Presiden No.97 Tahun 1993 tentang Tata Cara Penanaman Modal) (Keppres 97/93) sets out the steps to be taken by those seeking approval for a new enterprise. It states that the applicant for capital investment is to apply to the Minister for Investment or the Chairman of BKPM (art 1(2)). If the application accords with legal requirements as well as conditions for capital investment (persyaratan Penanaman Modal Dalam Negeri) then the Minister for Investment or the Chairman of BKPM is to issue a Letter of Agreement to Capital Investment (Surat Persetujuan Penanaman Modal). This letter also operates as an In Principal Agreement (Persetujuan Prinsip) (art 1(3)). It is stated that once approval has been obtained, the developer is able to apply for the following approvals: (a) the final business licence (Usaha Tetap) from the Minister for Investment or the Chairman of BKPM in the name of the Minister in the field of activity as a delegation of authority (art 1(5)(a)4.); (b) the location licence from the Head of the Land Office in district government (Kepala Kantor Pertanahan Kabupaten/ Kotamadya) (art 1(5)(b)); (c) the right to use a building (Hak Guna Bangunan), the right to use land (Hak Guna Usaha) and the right to manage (Hak Pengelolaan) from the Head of the Land Office in district government (art 1(5)(c)); (d) the right to develop (Izin Mendirikan Bangungan) (IMB) from the Head of the Public Works office in district government (Kepala Dinas Pekerjaan Umum Dati II atau Satuan Kerja Teknis atas nama Bupati/ Walikotamadya) or the Head of the office for Urban Development in Jakarta in the name of the governor (Kepala Dinas Pengawasan Pembangunan Kota (P2K) bagi DKI Jakarta atas nama Gubernur DKI Jakarta) (art 1(5)(d)); (e) the Hinderance Ordinance from the Secretary of the district government in the name of the mayor (Sekretaris Wilayah/Daerah Tingkat II atas nama Bupati/Walikotamadya) or the Head of the Control Bureau in the name of the governor of Jakarta (Kepala Biro Ketertiban atas nama Gubernur DKI Jakarta) (art 1(5)(e)). It can be seen therefore that preliminary approval in the form of the Letter of Agreement to Capital Investment (Surat Persetujuan Penanaman Modal), which also operates as an In Principal Agreement (Persetujuan Prinsip), is a key approval for a new development. To obtain this approval there is no requirement for an environmental assessment of the proposed investment. After receiving an In Principle Agreement, construction may take place, equipment may be installed, and trial operations may commence. This particularly raises issues about the coordination of preliminary approval with environmental impact assessment (AMDAL). In principle, the environmental impact assessment process should be part of the 1 Jakarta
Post, “BKPM Seeks to Centralize Investment Licensing” 22 October 2001.
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feasibility study of the project for which approval is obtained before an investor makes any financial or legal commitments. A comprehensive environmental assessment and the final decision taken by the relevant decision-maker should be concluded before the preparation of the site or any construction activities. Before obtaining an environmental clearance, developers should not be able to incur expenses or enter into obligations that may influence the environmental assessment. The option of rejecting the development needs to be kept open until the environmental assessment has been completed. At present, the only coordination between the commencement of preliminary activities and environmental assessment is through a proviso to the effect that the giving of the preliminary approval is on condition that if the environmental impact assessment is not approved, the industrial and/or activity licence will not be granted. Thus, it is only after preliminary approval is obtained that the environmental impact assessment is undertaken. Therefore, operations that may have an impact on the environment can be carried out before an environmental assessment. The rule that if the environmental impact assessment is not approved, the final licence will not be granted, requires the developer to make an assessment of whether or not these documents will be approved. The risk is imposed on the developer that if these documents are not approved, the final licence will not be granted. It is likely that the chances of a rejection will be reduced if construction has commenced. Therefore, the sanction is weak, especially if one considers that in Indonesia there have been very few outright refusals of a proposed development based on an environmental impact assessment.2 SPATIAL PLANNING APPROVAL Location licence Act No. 24 of 1992 regarding Spatial Planning (Undang-undang No. 24 Tahun 1992 tentang Penataan Ruang) (UU 24/92) states that the means by which compliance to a spatial plan can be achieved is through licensing carried out at the district level (art 22(4)). There is no mention of the form of the licence, the procedure to be followed in assessing an application for a licence or the considerations to be taken into account in relation to the grant of a licence. However, as mentioned in Chapter 12, pursuant to UU 24/92 planning at the district level the basis for the formulation of policy, integratedness, the location of investment and the compilation of more detailed plans for the district (art 22(3)). Planning at the district level is also the basis for the issuance of location licences (art 22(4)). Prior to the purchase of land upon which a proponent proposes to construct a new development, a location licence is required to be obtained from the National Land Use Agency (Badan Pertanahan Nasional)(BPN)) of the province or district. A location licence is a permit to acquire land and acknowledges that the purchase will comply with the regional spatial plan. The main goal in the administration of the location licence has been stated to be the enhancement of efficient land use.3 2 Personal
communication from source in the AMDAL Commission.
3 Sumardjono M “Land Policy and the Law: the Implications of the Policy in the Granting of a Location Permit for Real
Estate Development” in Koesnardi H. Current Development of Laws in Indonesia Institute of Development Economies Japan External Trade Organisation ASEDP No. 51 1999 pp.9-29 at p.13. The elements of the location permit have been elaborated by Sumardjono as being: (1) an administrative action or decree (2) the grant of a the right/authority to the grantee to acquire land and an obligation to meet the requirements of the permit (3) acknowledgement of compliance with the Regional Spatial Plan
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A link is made between AMDAL and the location licence through a provision in the AMDAL guidelines which states that the terms of reference for the AMDAL prepared by the proponent must contain the letter of decision or documents that are a precondition for the grant of the location licence.4 In addition, as stated in Chapter 6, the terms of reference of an AMDAL will be rejected if the planned location of the development does not comply with spatial planning requirements (PP 27/99 16(4)). It would seem therefore that to obtain a location licence, an applicant is not required to provide environmental information regarding the proposed development. This is not entirely clear, however, as there is a provision to the effect that an application to obtain a location licence for an activity involving foreign and domestic capital investment requires a Preliminary Environmental Information (Penyajian Informasi Lingkungan)(PIL) - see Decree of the Minister of Internal Affairs No. 1 of 1985 regarding Pollution Controlling Procedure for Capital Investment Companies in Accordance with Law No. 1 of 1967 and Law No. 6 of 1968 (not reviewed for the writing of the report). This effect of the decree needs to be clarified. In relation to new developments for the processing and storage of toxic waste (bahan berbahaya dan beracun (B3)), the role of the location licence is clearer. According to Government Regulation No. 18 of 1999 regarding the Management of Hazardous and Toxic Waste (Peraturan Pemerintah No. 18 Tahun 1999 tentang Pengelolaan Limbah Bahan Berbahaya dan Beracun), the location licence is to be given by the head of the District Land Office (Kepala Kantor Pertanahan Kabupaten/Kota) in accordance with spatial planning requirements after receiving a recommendation from the head of BAPEDAL (art 46(1) PP 18/99). This is an example of a clearly expressed form of coordination. It goes on to state that the recommendation from BAPEDAL is to be based on research into the environmental impact and the technical appropriateness of the location. Development Approval – Izin Mendirikan Bangungan Development approval in the form of assessing an application for approval to build a structure only exists in relation to housing, not in relation to developments more generally such as factories, hospitals, offices, hotels, workshops etc. Reference to the Izin Mendirikan Bangungan (IMB) is found in the following:
Act No. 16 of 1985 regarding Housing (Undang-undang No. 16 of 1985 tentang Rumah Susun)
Act No. 4 of 1992 regarding Housing and Settlement (Undang-undang No. 4 of 1992 tentang Perumahan dan Permukiman)
Government Regulation No. 5 of 1985 regarding Housing (Peraturan Pemerintah No. 5 of 1988 tentang Rumah Susun)
Government Regulation No. 47 of 1997 regarding National Spatial Planning (Peraturan Pemerintah No. 47 of 1997 tentang Rencana Tata Ruang Wilayah Nasional)
(4) acknowledgement of compliance with laws and regulations (5) non-transferability (6) the ability to be revoked or suspended. 4 Ministerial Decree No. 2 of 2000 regarding Guidelines for the Valuation of AMDAL (Keputusan Menteri Negara Lingkungan Hidup No. 2 tahun 2000 tentang Panduan Penilaian Dokumen AMDAL) (Chapter 2 Part A b.)
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In Act No. 16 of 1985 regarding Housing it is stated that the regulation of the construction of housing, including the grant of location licences, IMB and the occupation licence is able to be contained in Perda (art 4(3) and elucidation).5 Act No. 4 of 1992 regarding Housing and Settlement states that every person who builds a house or dwelling must follow technical, ecological and administrative conditions (art 7(1)). The elucidation states that administrative conditions include the IMB. This is stated to be the subject of further regulation. Oversight and control of spatial planning As mentioned in Chapter 12, control of the planning process is stated in UU 24/92 to be through oversight and control of the use of space (art 17). Oversight is to be implemented through reporting, monitoring, and evaluation (art 18(1)) - there is no mention of the level of government or the government department (instansi) that is responsible for oversight, or the extent of authority they may have in this regard. The subject matter that is to be reported, monitored, and evaluated is not mentioned. That which is encompassed within the meaning of “control” is also not clear from the wording of the Act. Theoretically, “control” of planning is separate from “oversight”, as oversight is an activity which is removed from planning decision making. “Control” could take the form of: (a) control over the grant of development approval; or (b) control of activities to ensure compliance with: (i) environmental laws generally; (ii) a relevant planning regulation; (iii) the relevant spatial plan; and/or (iv) the grant of development approval given under the spatial plan. Oversight, in comparison, could be the external checks and balances that ensure that control activities are actually carried out and are done so in accordance with the law. Control over approvals granted under spatial planning law, should be included as part of the control of planning. Article 18(2) of UU 24/92 addresses (b)(iii) above in that it states that use of space not in accordance with a spatial plan is to be sanctioned in accordance with the prevailing law. However, it relies on the existence of “prevailing law.” UU 24/92 also states that a licence that is not in accordance with a plan made at the district level can be cancelled by the head of the relevant region (art 26(1)). This also relates to b (iii) above. The Act does not, however, directly address (a), (b) (i), b (ii) or b (iv). The main regulation providing for the Yogyakarta Spatial Plan (Rencana Tata Ruang Wilayah Propinsi Daerah Istimewa Yogyakarta) (RTRWP DIY) is Regional Regulation No. 5 of 1992 Regarding Spatial Planning in Yogyakarta (Peraturan Daerah Propinsi Daerah Istimewa Yogyakarta No.5 Tahun 1992 Tentang Tata Ruang Wilayah Propinsi Daerah Istimewa Yogyakarta) (Perda 5/92). It provides insight into how control is provided for at the regional level. Similarly to UU 24/92, it states that control of planning is by oversight and control (art 70 (1)). It repeats that oversight is to be through reporting, monitoring and evaluation (art 70 (2)) and that control is also to be exercised through the imposition of sanctions in accordance with regulations (art 70 (3)). Thus, it can be seen that the provincial regulation contains no more detail than the Act.
5 The
report does not examine the Perda that have been passed in relation to the construction of housing.
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The provincial regulation states that the activities of oversight and control are to be carried out by the Yogyakarta Planning and Development Board (Badan Perencanaan Pembangunan Daerah Propinsi Daerah ) (BAPPEDA) (art 71(1)). It then goes on to state that control is to be carried out by “the authorised agency” (art 71(2)). The name of the authorised agency is not specified, so it is not clear whether control is to be exercised by BAPPEDA or some other body. The further regulations anticipated in the Perda regarding control have not yet been passed. In so far as control includes the imposition of sanctions for breaches of prohibitions and obligations in the Perda, criminal sanctions are provided for every person who breaches provisions relating to protected forests (art 15(a)) and to areas along rivers (art 16(b)). The penalty is a maximum of three months imprisonment and a maximum fine of Rp. 50,000,000 (art 74(1)). Thus it addresses (b)(ii) above in a limited way, however, the Perda itself does not include specific prohibitions or obligations that could provide the basis for a criminal prosecution. In addition, the Perda states that criminal law set out in other laws applies to anyone who causes environmental damage or pollution (art 74(3). Through this provision, it addresses (b)(i) above. There are also provisions for investigations by POLRI and Civil Investigation Officers (Penyidik Pegawai Negeri Sipil (PPNS)) (art 75). The authority of the PPNS is set out (art 76). Thus, it would seem that any imposition of sanctions relating to illegal activities in protected areas would need to be based on other laws and regulations. SECTORAL LICENCES The business or activity licences Before commencing commercial operations, an enterprise must obtain a final business licence (izin usaha tetap). Where the enterprise is an industry, this licence is an industry licence (izin usaha industri) (IUI). All industrial enterprises are required to obtain an IUI pursuant to article 13(1) Act No. 5 of 1984 regarding Industry (Undang-undang No. 5 Tahun 1984 tentang Perindustrian). The environmental aspect of the licence is mentioned in the Industry Act where it states that the arrangement and promotion of the industrial sector shall be conducted by taking into account the prevention of damage and pollution of the environment as well as the safeguarding and preservation of natural resources (art 9(4)). A generally worded obligation is imposed upon licencees to preserve natural resources and to prevent environmental damage and pollution that may arise from the industry (art. 21). Whoever breaches this obligation is stated to be liable to criminal prosecution and imprisonment for up to ten years and a maximum fine of 100 million rupiah (art 27(1)). Further explanation is given regarding the nature of the industry licence in Government Regulation No. 13 of 1995 regarding Industry Licences (Peraturan Pemerintah No. 13 Tahun 1995 tentang Izin Usaha Industri) (PP 13/95). Small-scale industry is excluded from the obligation to obtain an IUI6 (PP 13/95 (art 3(1)). Small scale industry is to obtain an Industry Registration (Tanda Daftar Industri (TDI)) in accordance with the Decision of the Minister for Industry and Trade No.590/MPP/Kep/10/1999 regarding Arrangement of the Provision of Industrial Licences, Expansion Licences and Registration of Industry (Keputusan Menteri Perindustrian Dan Perdagangan No. 590 Tahun 1999 tentang Ketentuan Dan Tata Cara Pemberian Ijin
6 Small scale industry includes all industry listed in attachment 1 to Decision of the Minister for Industry and Commerce
No.589/MPP/Kep/10/1999 with a value of investment up to 200 million rupiah not including the land and the building: Decision of the Minister for Industry and Trade No.590/MPP/Kep/10/1999) (art. 2(2)).
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Usaha Industri, Ijin Perluasan Dan Tanda Daftar Industri) (Decision 590/1999 of the Minister for Industry and Trade).7 It can be seen from PP 13/95 that IUI are of two kinds: (a) an expansion licence (izin perluasan) (b) a permanent licence (izin tetap) Further explanation of the process of granting the IUI is given in Decision 590/1999 of the Minister for Industry and Trade. It is stated that the holder of the IUI must have previously obtained either (art 4(1)):
In Principle Agreement (Tahap Persetujuan Prinsip) or
Exemption from In Principle Agreement (Tanpa Melalui Tahap Persetujuan Prinsip).
The enterprises that must obtain In Principle Agreement are those industries that potentially pose a threat to the environment, namely those industries (art 8(1)):
not listed on a list of industries that are regarded as not posing a threat to the environment contained in Decree of the Minister for Trade and Industry No. 148/M/SK/7/1995 regarding Types of industry with production processes that do not cause damage or threaten the environment and do not use excessive natural resources (Surat Keputusan Menteri Perindustrian No. 148/M/SK/7/1995 tentang Penetapan Jenis dan Komoditi Industri Yang Proses Produksinya Tidak Merusak Ataupun Membahayakan Lingkungan Serta Tidak Menggunakan Sumber Daya Alam Secara Berlebihan) or
not located in an industrial zone (Kawasan Industri/Kawasan Berikut)
It is stated that the In Principle Agreement to allow a new enterprise to proceed directly with construction, equipment installation and trial operations not including commercial operations (art 4(3) & (4)). As mentioned above in relation to preliminary approvals, Presidential Decree No. 97 of 1993 regarding the Arrangement of Capital Investment states that if the application for capital investment accords with legal requirements and conditions for capital investment then a Letter of Agreement to Capital Investment is to be issued. This letter also operates as an In Principal Agreement (art 1(3)). Those industries that have an Exemption from In Principle Agreement are industries that (art 8(2)):
are located in a licensed industrial zone (Kawasan Industri/Kawasan Berikut) or
an industry that is included in the list of industries that are regarded as not posing a threat to the environment.
Such industrial enterprises must, however, obtain an official statement (surat pernyataan) attesting to the fact that the enterprise did not commence commercial production before fulfilling all conditions of relevant government departments related to the development (art 9(1) (a)). 7 Article
2(4).
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In considering whether to grant an IUI, the industry must have fulfilled all legal requirements and have already built the factory and infrastructure of production (art 4(2) PP 13/95). It can be given directly to an industry located in a licenced industrial estate or to an industry where the processes of production or commodities do not damage or threaten the environment and do not make excessive use of natural resources (art 4(2) PP 13/95). These requirements are repeated in Decision 590/1999 of the Minister for Industry and Trade which states that the IUI is given to businesses that have fulfilled legal requirements such as the location licence, the HO, and the UKL/UPL, and that are ready to commence production (art 4(5)). An important aspect of this arrangement is that the IUI is granted to businesses that are ready for commercial production hence it is too late for the imposition of environmental controls the change in construction, layout, design of manufacturing, use of materials etc. Industries that may pose a threat to the environment are able to obtain In Principal Agreement as a preliminary approval. That approval will allow them to proceed directly with construction, equipment installation and trial operations before any environmental assessment of the proposed activity. The environmental assessment comes later. Integration between the Business and/or Activity Licence and AMDAL The outcome of the AMDAL assessment needs to be coordinated with the grant of the final business licence (izin usaha tetap). UU 23/97 states that (art 18(1)): Every business and/or activity which gives rise to a large and important impact on the environment must possess an environmental impact analysis to obtain a licence to conduct a business and/or activity.
The wording of the Act therefore ties the grant of the business and activity licence with the AMDAL approval.8 The AMDAL regulations confirm the arrangement where it is stated that before a business or activity licence is applied for, an environmental impact assessment must be completed (PP 27/99 art 7(1)). The request for the licence must attach the decision on the environmental impact assessment (PP 27/99 art 7(2)). The relevant officer who considers the application for a business or activity licence is to include the conditions and responsibilities that are set out in the environmental management and monitoring plans (RKL and RPL) and they in turn must be obeyed by the proponent (PP 27/99 arts 7(1) & (2)). As mentioned above, pursuant to the Industry Act 1984, environmental obligations are imposed on industry. The procedure for the conduct of a formal inspection by the sectoral ministry before the grant of an IUI is not, however, provided for. Therefore, it is not clear whether it is necessary only to present the ANDAL, RKL and RPL documentation or whether the sectoral ministry conducts a site inspection and carries out an assessment of the accuracy of the ANDAL predictions and their implementation. It could be expected that the quality of the on-site inspection will be affected by the following considerations: (a) Environmental protection is not the primary concern of officials in sectoral agency. (b) Environmental requirements may be seen by sectoral agency to be an obstacle to meeting investment and development targets. (c) There is likely to be a lack of environmentally qualified inspectors within the sectoral agency.
8 As mentioned in Chapter Five there is a need for a definition of “business and/or activity”.
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However, concerning industrial waste discharges, an inspection could be expected to be a site inspection to see whether the treatment process has started and whether the treated wastewater meets the required standards. As mentioned above, a more serious structural problem is that which arises from the extent of the “preliminary activities”. Should the AMDAL Commission favour an alternative site for a development or an alternative configuration of its layout, clearly it will be too late to make such changes. Even in relation to choice of technology, which may be relevant to the environmental management plan, there may be major difficulties in making changes. A more environmentally protective juncture for coordinating the environmental impact assessment with sectoral approval needs to be found. Furthermore, where a development is likely to have a significant effect on the environment, there should be a clear prohibition against the commencement of any preliminary activities without a decision approving the environmental impact assessment. A breach of the prohibition should constitute a statutory offence accompanied by significant penalties. Integration between the business or activity licence and the UKL/UPL As discussed in Chapter Six, new enterprises that are not required to prepare an AMDAL, are required to prepare an environmental management plan (Upaya Pengelolaan Lingkungan)(UKL)) and an environmental monitoring plan (Upaya Pemantauan Lingkungan)(UKL)). There is no specific coordinative mechanism in UU 23/97 between the UKL and UPL and the business or activity licence. The Act does, however, state that in issuing a licence to carry out a business or activity, it is compulsory to take into account the following (art 19(1)): a. spatial management plans; b. public opinion; and c. considerations and recommendations of authorised officials who are involved with such business or activity. Whilst the presentation of the UKL/UPL to the relevant sectoral agency may fall under c. above, there is, no express link, for example, to the effect that prior approval must have been given to the UKL and UPL before a business or activity licence may be applied for. This level of detail is found in an obscure sectoral guideline, the Appendix to the Decree of the State Minister for the Environment Number Kep12/MENLH/3/94 Concerning General Guidelines for Environmental Management and Monitoring Procedures (Keputusan Menteri Negara Lingkungan Hidup No. 12 Tahun 1994 tentang Pedoman Umum Upaya Pengelolaan Lingkungan (UKL) dan Upaya Pemantauan Lingkungan (UPL)). The appendix states that documentation contained in the UKL and UPL is binding and is a requirement for the grant of the business or activity licence by the sectoral department responsible for granting the industrial licence.9 Notably, the assessment of the UKL and UPL is likely to be made by the regional sectoral agency without any input from an environmental agency such as a BAPEDALDA, unless specific legal provision at the regional level is made for this to occur. Furthermore, the business or activity licence is granted after the proponent has implemented the UKL and UPL,10 and therefore the grant of the industrial licence does not provide for any independent review. There is also no procedure whereby the UKL and UPL is incorporated into the business or operating licence. For example, one question that arises is whether the UKL and UPL 9 Introduction, 10 Article
para. 3 13(2) Letter of Decision of the Minister for Industry Number 250/M/SK/10/1994.
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become conditions of the business or activity licence. It is intended that there be cooperation between the regional Department of Industry (both at provincial and district level) and the regional Environment Bureaus (now replaced by BAPEDALDAs) in regard to the implementation of the UKL and UPL. To date, however, this cooperation has not been widespread. ENVIRONMENTAL LICENCES Water Pollution Licences An example of an environmental licence is the water pollution licence discussed in Chapter Seven in relation to effluent control. As previously mentioned very few water pollution licences have actually been issued and there is a level of uncertainty at the provincial level regarding the government agency that is responsible for issuing water pollution licences. Coordination between water pollution licences and AMDAL In UU 23/97 there is no specific provision made for coordinating the water pollution licence with the AMDAL. PP 82/2001, however does establish a coordinative mechanism between AMDAL and effluent discharge licences in the provision that states that the application for a discharge licence is to be based on the AMDAL (art 35(2)). Coordination between water pollution licences and UKL/UPL There is also a linkage between the issuance of the water pollution licence and the UKL/UPL through PP 82/2001, which states that the application for a discharge licence is to be based on the UKL and UPL (art 35(2)). The evaluation of the UKL and UPL is made by the technical agency having jurisdiction over, and responsibility for, the supervision of the business or activity in question.11 Technical guidelines for the UKL and UPL are stipulated by the sectoral agencies responsible for the particular type of business or activity. There appears to be little awareness within BAPEDAL and BAPEDALDAS of the activities of sectoral agencies in the assessment and implementation of the UKL and UPL.12 This appears to indicate that there is an absence of liaison between the sectoral agency and BAPEDAL or the BAPEDALDA concerning the assessment and implementation of commitments made in the UKL or UPL. Water Use Licences A key principle in integrated water resources management is that water use and water quality should be considered together. This aspect is discussed both in Chapter 7 and Chapter 16. Currently there is no clear mechanism to enable consideration of both aspects of water resources management in the licensing process. The effective planning of water (rencana pendayagunaan air ) as defined in PP82/2001 includes planning water quality and quantity (art 1(8)). However, this is the only reference to water quantity in the whole regulation. The concept of carrying capacity established in the PP82/2001 enables water quantity issues to be taken into account, however, how this is to be done will depend on the issuing of guidelines. As quantity issues concern both surface and groundwater, the coordination of water quality and quantity also involves both surface and groundwater. Currently, there is no coordination between the licensing of surface and groundwater, such as through a coordinative price structure or through the institutional arrangement of those authorities responsible for licensing. Act No. 11 of 1974 regarding Irrigation 11 Article
3(4) Regulation 27 of 1999. writer was unable to obtain information, either from BAPEDAL or from the BAPEDALDA in East Java in regard to the implementation of either the UKL or UPL within the sectoral ministries. 12 The
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(Undang-undang No. 11 Tahun 1974 tentang Pengairan) introduced the concept of payment for surface water as a compensation for a service (retribusi)13 and most provinces; a surface (raw) water use licence is in place. It is likely that the new Act will provide that as water has an economic value, every user or exploiter of water resources (for needs apart from basic daily needs) must be licensed and must pay for the price of water and/or the cost of the provision of water. This arrangement, however, falls short of establishing a price structure for the cost of water that incorporates both groundwater and surface water. At present, the implementing regulation regarding surface water use licences is Regulation of the Minister of Public Works No. 49 of 1990 regarding the Method and Conditions for Licensing the Use of Water and Water Resources (Peraturan Menteri Pekerjaan Umum No: 49/PRT/1990 tentang Tata Cara dan Persyaratan Izin Pengguanaan Air dan atau Sumber Air). It does not concern groundwater (art 1(8)). It lists the uses that require a licence (art 4) and states that the licence must be based on a plan for the protection, expansion and use of water and water resources in the river territory (art 2(2)). Pursuant to the new National Water Law, it is likely that the technical conditions for water use licences will be drafted by the Director-General of Irrigation.14 Detail as to the factors to be considered in deciding to grant a water use licence should, however, be provided in legal form. Legal provisions could include factors to be taken into account in considering water quality concerns, impact upon the environment and whether it is in the public interest that a water use licence is granted. Groundwater and surface water could be considered together through the introduction of a system of property rights in water that are quantified, for example, based on the rate of diversion or the volume of water stored.15 Equally important is the need to set up a coordinative mechanism between those bodies tasked with protecting water quantity and water quality. Hazardous and toxic waste As mentioned in Chapter Ten on Waste Management, Government Regulation No. 18 of 1999 regarding the Management of Hazardous and Toxic Waste (Peraturan Pemerintah No. 18 Tahun 1999 Tentang Pengelolaan Limbah Bahan Berbahaya Dan Beracun (B3)) lists the industries that produce hazardous and toxic waste. These industries require a licence for storage, collection, exploitation, processing and/or stockpiling of B3 (PP 18/99 art 40(1) (a)). However, as mentioned in Chapter Ten, in practice this only occurs when such activities are the dominant activity of the enterprise. A new enterprise will be required to prepare an AMDAL where the storage, collection, exploitation, processing and/or stockpiling of B3 is the primary activity of the enterprise. In these cases therefore, the linkages between the AMDAL findings and other licences become important.
13 Sectoral
guidelines also provide for retribusi such as the Joint Decision of the Directors-General for Finance, Autonomy, Oil and Gas and Irrigation 4802/M/1991 No.974-718: 107K/101/DDJM/91: 137/KPTS/A/1991 regarding the Payment of Fees for the Use of Water or Water Resources in Oil, Gas and Thermal Resources (Keputusan Bersama Direktur Jenderal Moneter, Direktur Jenderal Pemerintah Umum Dan Otonomi Daerah, Direktur Jenderal Minyak dan Gas Bumi dan Direktur Jenderal Pengairan: KEP-4802/M/1991 No.: 974-718: 107K/101/DDJM/91: 137/KPTS/A/1991 tentang Tata Cara Pembayaran Retribusi Air Dan Atau Sumber Air Untuk Kegiatan Usaha Otonomi Daerah, Minyak Dan Gas Bumi Dan Pengusahaan Sumber Daya Panasbumi). 14 This has been proposed in the draft National Water Act. 15 Agricultural and Resource Council of Australia and New Zealand Water Allocation and Entitlements: A National Framework for the Implementation of Property Rights in Water Task Force on COAG Water Reform Occasional Paper Number 1, 1995 establishes three kinds of property rights: (a) a natural resource share – a constrain on the diversion or storage of water (b) allocation of storage yield and (c) operational use of natural pathways pp.10-12.
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The institutional arrangements for licensing B3 differ from all other forms of licensing, as it is the only instance in which BAPEDAL has licensing authority (art 41(1)). The question that emerges within regional autonomy is, who should now be responsible for the licensing of storage, collection, exploitation, processing and/or stockpiling of B3? If it is an authority at the provincial or district level, which institution is it to be and do they have the necessary human and financial resources? If storage, collection, exploitation, processing and/or stockpiling of B3 is not the dominant activity of an enterprise, there will be no AMDAL assessment. The management of B3 that is contained in waste will be assessed by the relevant sectoral agency when they consider the adequacy of the UKL and UPL. Thus, the linkages discussed above in relation to the UKL/UPL, the business and/or activity licence and the water pollution licence become particularly important. The question arises whether control that is more stringent should be imposed on such industry, compared to industry that produces non-hazardous waste? If a concept of ‘hazardous or offensive’ industry were to be introduced, for example, combined with additional requirements in assessing development proposals and licensing, this would provide additional safeguards. A statutory obligation could be imposed to require ‘careful consideration regarding the specific character of each case, the location and the way in which the activity is to be carried out’. There could also be provision for a form of assessment that specifically addresses the hazards of the chemicals to be produced. COORDINATION MECHANISMS FOR LICENCES AND OTHER APPROVALS The Hinderance Ordinance Act 1926 Under the Hinderance Ordinance Act 1926, (Undang-undang Gangguan – Hinderordonnantie) a simple form of coordination exists. Pursuant to the act, every activity that creates a nuisance is required to obtain a Hinderance Ordinance licence (HO) issued by district government. It lists a wide range businesses that must apply for a HO (art 1) and states that a HO may be refused if there is a fear that the enterprise is dangerous, could damage property, other enterprises or public health and cause a heavy disturbance (art 6(2)) The water pollution regulation, Government Regulation 20 of 1990 regarding water pollution (Peraturan Pemerintah 20 Tahun 1990 tentang Pencemaran Air) specified that the licence to discharge liquid waste is to be included in the HO and listed the subject matter to be contained in the licence (art 26(2)&(3)).16. Furthermore, the HO is to include the following: the RKL and RPL (art 28 (1)) and a higher stipulation of water quality where it was required as a result of an AMDAL (art 28(2)). Thus there has been a coordinative arrangement as follows: 16 It
is to include: the type of production, the production volume, and the water requirements for production; the quality and quantity of liquid waste and/or other material that is permitted to be discharged into water and the frequency of the discharge; c. the exact location of the discharge channels for liquid waste; d. the sources of water being used in the production process and/or for other activities, as well as the amount and the quality of this water; e. prohibition to dilute liquid waste; and f. plans and procedures for handling emergency situations. a. b.
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Water pollution licence HO RKL/RPL HO AMDAL HO As licences to discharge liquid waste have rarely been issued, the provision that a HO include a licence has been of little effect. It is commonly recognised that the HO itself has rarely been used for the purpose of pollution control.17 However, the HO has, in theory, provided a useful coordination mechanism between the AMDAL assessment (including the RKL and RPL) and the water pollution licence. COORDINATION OF MONITORING Provision for monitoring environmental discharges from industrial enterprises and ambient conditions are found in the following licences and approvals:
RKL/RPL
UKL/UPL
Water pollution licences
Hazardous and toxic waste licences
As mentioned in Chapter Six, both the RPL and UPL involve the undertaking of a commitment to carry out self-monitoring. This obligation is further detailed in sectoral ministerial guidelines such as Decision of the Minister of Agriculture No. 818/Kpts/RC.220/10/98 regarding the Monitoring of Liquid Waste in the Agriculture Industry (Keputusan Menteri Pertanian No. 818/Kpts/RC.220/10/98 tentang Laporan Pemantauan Limbah Cair Kegiatan/Usaha Dan Atau Industri Pertanian). This regulation provides a proforma for self-monitoring information and states that monitoring shall be carried out every month and the results forwarded to the head of the Agriculture Board (Kepala Badan Agribisnis Departemen Pertanian), the head of BAPEDAL and the BAPEDALDA. It is also stated in the guideline that copies are also to be provided to the Director-General in the Department of Agriculture, the heads of the provincial and district Department of Agriculture. Difficulty in coordinating monitoring has been recognised by BAPEDAL in the passing of special guidelines for the monitoring of the implementation of RKL and RPL. The guidelines are in the form of an Appendix to the Decision of the Head of BAPEDAL No. 105 of 1997 regarding Guidelines for the Monitoring of the Execution of the RKL and RPL Keputusan Kepala Badan Pengendalian Dampak Lingkungan No.: Kep-105 Tahun 1997 Tentang Panduan Pemantauan Pelaksanaan Rencana Pengelolaan Lingkungan (RKL) dan Rencana Pemantauan Lingkungan (RPL) The following are stated to be responsible for monitoring: (1) the proponent (2) regional or district government (3) the responsible sectoral agency 17 Aspects of the HO have been discussed by Rangkuti S, Hukum Lingkungan Dan Kebijaksanaan Lingkungan
Nasional 2nd Ed, Airlangga University Press Surabaya 2000 pp.156-168.
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(4) BAPEDAL, BAPEDAL Wilayah or the BAPEDALDA at the regional or the district government level (Part E) Monitoring by government is divided into passive and active monitoring. Passive monitoring uses information provided by other parties such self-monitoring by the proponent. In this regard, monitoring results are to be forwarded by the proponent to each of the following agencies: (a) the governor and mayor (b) the responsible sectoral agency (c) BAPEDAL, BAPEDAL Wilayah or the BAPEDALDA at the regional or the district government level.(Pt F 1 a (2)) In turn the report is to be used by these agencies for various environmental management tasks and as the basis for active spot-check monitoring (uji petik) (Pt F 1 a (3)). Notably, the self-monitoring obligation upon the proponent is not expressed in the language of obligation but in the passive tense (dilaporkan kepada). A question arises as to whether failure to carry out self-monitoring can provide the basis for enforcement action? Active monitoring is to be carried out by the responsible sectoral agency, BAPEDAL, BAPEDAL Wilayah or the BAPEDALDA at the regional or the district government level. This is established by way of a definition of active monitoring, not by way of an obligation imposed on these institutions. There is no division of tasks or an explanation as to who is to do what between the government agencies. It states that the choice in targeting a business or activity is to take into account large and complex environmental problems, sensitive locations, previous monitoring results and any requests by government bodies, the local community or NGOs (Pt F 1 b (2 a.)). There is no obligation to carry out monitoring in any particular situation. The stages of monitoring are described as the compilation of data and information, gaining an understanding of the monitoring results of other parties, joint monitoring; compiling secondary information; and carrying out monitoring in the field (Pt F 1 b (2 b-e)). This description falls short of setting out “who is to do what” in the coordination of active monitoring. The method of monitoring in the field is stated to include examination of: (1) the implementation of RKL and RPL in accordance with the documentation and (2) the correctness of self-reporting. There is to be discussion with the enterprise regarding benefits, restraints and obstacles in implementing the RKL and RPL including general management, management of waste and internal organisation issues. Interviews are also to be carried out with community leaders and the local community and if necessary, samples of waste are to be taken for examination (Pt F 1 b (4)). The government agency which carries out monitoring is required to self-finance these activities (Pt G). It can be seen from the above, that some issues that arise in relation to the coordination of monitoring include:
the low level of the legal instruments relating to monitoring;
an absence of language of obligation;
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heavy reliance on self-monitoring;
no inclusion of local communities in monitoring;
no mention of making monitoring results publicly available;
failure to clearly set out “who is to do what”, in the regional context;
failure to deal with monitoring the implementation of the UKL or UPL;
no mention of monitoring as data collection only, outside of compliance;
no mention of monitoring the predictions made in the AMDAL assessment; and
no provision for government to recover the cost of monitoring.
CONCLUSIONS AND RECOMMENDATIONS Coordinating procedures Currently there is an absence of explicit coordinative mechanisms within the legal framework to assist the integration of environmental decision-making regarding the approval of new enterprises. This can be seen in Presidential Decree No. 41 of 1996 regarding Industrial Estates (Keputusan Presiden No. 41 Tahun 1996 tentang Kawasan Industri) which sets out the stages of licensing as follows: 1. In principle agreement from the Minister of Industy and Trade or the Minister of Investment/ Chairman of BKPN 2. Location licence for Industrial Estates from the head of the District Land Office based on spatial planning considerations 3. Business licence for Industrial Estates the Minister of Industy and Trade or the Minister of Investment/ Chairman of BKPN 4. The right to use the development (Hak Guna Bangungan Induk) 5. Expansion licence for Industrial Estates The only reference to AMDAL is a provision that states that industrial estates are obliged to prepare an AMDAL (art 8(1)d). Decentralisation of environmental decision-making makes coordination of the assessment and approval process even more pressing. Regional autonomy requires a focus of attention on the establishment of coordinative mechanisms at the provincial and district levels of government. Coordinated sequencing of approvals and licences, including approvals granted under spatial planning law, environmental management laws and sectoral laws is needed. Coordination needs to be streamlined and the number of institutions involved reduced, wherever possible. If an environmental licence is to be introduced, it will need to be coordinated with the AMDAL assessment, any resource use licences as well as with the business and/or activity licence. Further consideration would need to be given to the ongoing role for the UKL and UPL where environmental licences are introduced.
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It can be seen there are no clearly set out rules for coordination of each of the licences mentioned above to accommodate the implementation of measures to protect the environment. There is an absence of rules such as: (a) In Principle Agreement for a new development must not to be granted until after an environmental report has been approved by a certain authority. (b) Where there is likely to be a large and important impact on the environment, an AMDAL assessment must have been completed by the AMDAL commission and a recommendation made to the relevant authority regarding the desirability of the development prior to the grant of In Principle Agreement to the proposed development (c) Water quantity and water quality licensing is to be considered jointly by certain authorities As discussed in Chapter Five, Act No. 23 of 1997 regarding Environmental Management needs amendment to take regional autonomy in account. Coordinative mechanisms will need to be established at the district level between the different forms of approvals and licences. A question arises as to whether these coordinative mechanisms should be set out at the national level, and if so, at what level of lawmaking – an UU, PP or Keppres or a non-binding guideline? Another aspect that needs to be considered is the tiering of licensing requirements depending upon the likely impact of a new development on the environment. It is common in many countries for licences to be issued at the regional level for industries that are heavy polluters and at the district level for less polluting facilities. In the Indonesian context, this would mean that licences should to be issued by provincial government for predetermined heavily polluting industries and by district government for less polluting industry. This raises the kind of issues discussed in Chapter Four on Environmental Authority and Institution Building regarding the division of competency for environmental decisions at the regional level. To allow such a system to be developed, the regional autonomy law would need to be amended specifying the division of authority between provincial and regional government for environmental management. It would also require a change in the division of functions between the provincial and district BAPEDALDAs to allow the provincial BAPEDALDAs to undertake licensing. Preliminary approval The role of the licence granted by BKPM needs to be clarified in terms its relevance for environmental controls. This licence is the key licence for new developments and approval is likely to set up a train of events that are difficult to reverse. Spatial planning law Spatial planning law rather than investment considerations should provide the focus to the sequencing of approvals and should do so in a way that complies with the aspirations of decentralisation. Consideration should be given to a more extensive approval system within spatial planning law, akin to the IMB but extended to all forms of development which has built into it linkages with environmental assessment and environmental licensing. Before grant of this approval, if the development will possibly have a “large and important impact” upon the environment, an AMDAL assessment should be completed and a decision made. If it appears that environmental concerns will not be able to be controlled through the imposition of conditions to the grant of the approval and/or subsequent environmental licences then option should be available to reject the development proposal. The decision-making process for the grant of the approval could require consent by 189
the agency that will be responsible for issuing the environmental licence or resource use licence. The approval would also need to be coordinated with the approvals granted by the sectoral agencies. AMDAL Whilst the AMDAL process is a potentially important coordinative mechanism, a criticism of environmental impact assessment in Indonesia is that the documents produced in the process of assessment are rarely used as a decision document. Often projects commence before the environmental assessment process has been completed.18 As a result, the examination of the AMDAL is not integrated into the decisionmaking process and there is a lack of accountability for the ultimate decision. The causes for this are obvious from the fact that the AMDAL is not required at the early stages of decision-making. Where there is no AMDAL and therefore no RKL or RPL, environmental control is required to be carried out by sectoral agencies through the UKL and UPL and follow-up monitoring. It is questionable whether this is the most effective process environmentally. Prior to decentralisation, the Ministry for Industry and Commerce had a section dealing with UKL and UPL nationally. Authority has now been handed to the dinas in the regions who have less human resources at their disposal to attend to environmental control. There should be a prohibition against granting a preliminary approval to a proposed development before the completion of the environmental impact assessment (where one is required). This prohibition should be legally enforceable by third parties. Pollution licences Further attention needs to be give to coordination between environmental agencies and sectoral agencies in relation to the issuance of the UKL/UPL. Controls over spatial planning decisions The national law contained within UU 24/92 does not address how the use of space in accordance with the spatial plan is to be achieved or the procedures that are to apply in seeking approval to develop land in accordance with the spatial plan. More broadly, in relation to development control, a system for the imposition of checks and balances in the administration of the planning and a form of external oversight of the approval process is needed. The matters that are to be taken into account by the mayor in granting approval for new development need to be established. Further provision needs to be made to control activities so that they conform to spatial planning, including sanctions and identification as to which government body will be responsible for control. A review of the spatial planning regulations shows that there is no national system within spatial planning for imposing checks and balances in the development approval process. In this regard, it is noted that in 1997 an overhaul of the land permitting system was recommended, to control destructive land speculation at the rural-urban interface.19 Some issues that commonly arise in relation to spatial planning are: (a) In areas where certain uses are prohibited, a local authority may allow a prohibited use or turn a “blind eye” to an illegal development. (b) There may be evidence against the granting of consent that is ignored by the decision maker. (c) Insufficient conditions may be imposed to manage or mitigate negative effects of development. (d) A development may be established without any formal legal approval. 18 Presentation 19 State
by Tom Walton, Director Environment Department, World Bank Indonesia Office on 28 June 2000 Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 p.32.
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Currently there is no system in place to control these kinds of abuse of process. Apart from the avoidance of abuses, the grant of development approval is the ideal junction to coordinate sectoral interests and the law is able to set priorities to achieve this through the establishment of procedures. For example, in considering an application to develop housing on farming land, a legal provision could state that development applications relating to agricultural land must obtain concurrence from the head of the Dinas for Agriculture. Alternatively, there could be a provision stating that consent should not be given for a nonagricultural purpose in land zoned for agricultural use unless the mayor is satisfied there is no viable alternative site on non agricultural land. If it is likely that a development will need to obtain a pollution license or other form of environmental licence, a procedure could be inserted to the effect that the agency responsible for granting the licence must give concurrence to the application for development consent. In this way, planning controls can be coordinated with the regulation of pollution.
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PART D - NATURAL RESOURCES MANAGEMENT This section will concentrate on the management of natural resources. It is concerned with legal control of the exploitation of natural resources - both animate and inanimate - and the integration of economic and environmental factors in decision-making. It will commence with a consideration of land, soil, and water resources management. It will then go on to consider the living environment: the management of ecosystems both within and outside protected areas; the management of biodiversity within protected areas; the management of biodiversity outside protected areas; and the protection of endangered species. It is in natural resources management that sectoral agencies (such as Forestry and Estate Crops, Mines and Energy, and Fisheries) may experience conflicts of interest. On the one hand, there are pressures to exploit natural resources for commercial gain. On the other hand, it is now accepted that to enable longterm use for the benefit of future generations, natural resources must be managed sustainably. The use of natural resources will not necessarily require compliance with spatial planning controls, nor will it necessarily be the subject of an AMDAL. For example, agricultural practices, the extraction of water and fishing activities are not necessarily subject to either spatial planning or AMDAL. Such activities may, however, be subjected to environmental control through licensing. Thus, licensing is an important tool in the protection of natural resources. In general, the natural resources management relies heavily on the drafting and implementation of management plans. A management plan has been said to represent an environmental assessment of a resource together with ongoing requirements for management to ensure the sustainability of the particular activity being undertaken. 20
Management planning is particularly necessary where there is excessive exploitation of a living resource from a lack of control over harvesting, as often occurs in forestry and fishery in Indonesia. District level government now has the critical role in natural resources management. Issues that need to be addressed in regard natural resources management by district government include: assigning responsibility for management; encouraging co-management between the private and the public sector; and encouraging community management. In providing for natural resources management planning, the law can give direction as to the procedure for the adoption of plans and can indicate the factors to be taken into account in formulation of plans. It can provide procedures for the processing of licensing applications in conformity with a management plan. It can also state that the rights and obligations set out in a management plan have the force of law and are enforceable. In this way, management plans can become an additional source of law. The extent to which the law in Indonesia addresses these aspects will be noted in Part D.
20 Bates
GM, Environmental Law in Australia Butterworths Sydney (3rd Ed) 1992 at p.127.
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CHAPTER 14 – LAND MANAGEMENT Introduction The protection of land requires special attention as land is an exhaustible resource, in the sense that the supply of land can be affected if:
population density becomes so high that effectively land “runs out”, for example, agricultural land in highly urbanized areas; land is “destroyed” in that it is no longer useable for any use as a result of activities carried out on it; land is “degraded” 1 as the use for which it has been assigned not sustainable, for example, through soil erosion or loss of native vegetation; or land is “lost”, for example, through intrusion from the sea or landslides.
LAND USE PLANNING Land use planning is particularly important for the protection of land as it provides the means to prevent land used for a particular purpose from “running out.” It concerns the arrangement of the use of land to allow for the consideration of competing interests. Land use planning falls within spatial planning. As is stated in Act No. 24 of 1992 regarding Spatial Planning (Undang-undang No. 24 Tahun 1992 tentang Penataan Ruang)(UU 24/92), spatial planning includes “planning the structure and pattern of the use of space including land, water, air and other natural resources”(art 14(2)). Land use planning therefore concerns planning land use within spatial planning. Spatial planning more broadly concerns the structure and pattern of human activities within areas designated as urban (housing, roads, heavy and light industry, business) or rural (agriculture, forestry, mining, and fisheries). Within spatial planning, land can be protected by imposing constraints over: development change of use and subdivision of land. A review of spatial planning law shows that this level of detail is not found at the national level. For example, concerning opening up land, Act No. 12 of 1992 regarding System of Cultivation (Undang-undang No. 12 Tahun 1992 tentang Sistem Budidaya Tanaman) merely states that every person who opens up land to expand cultivation is obliged to follow the arrangements (tata cara) that prevent environmental damage (art 7). Change in land use is to be done “with attention of national planning for agricultural farming” (art 45). The effectiveness of regional planning law concerning these matters is a subject that would be appropriate for further research. The urgency of the issue is apparent if one considers there is a seemingly uncontrolled conversion of agricultural to non-agricultural land, forest areas to estate crops and wetlands to agricultural uses. degradation may be defined as “the detrimental effects on the land of soil erosion, salinity, flooding, removal of trees and vegetation.” Bates GM, Environmental Law in Australia Butterworths Sydney (3rd Ed) 1992 at p.130. It may include the environmental effects of mining and forestry. 1 Land
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LAND USE MANAGEMENT The system of land tenure that regulates property and land use rights, greatly influences environmental protection. Relevant laws and regulations include the following:
Act No. 5 of 1960 regarding Agrarian Affairs (Undang-undang No. 5 Tahun 1960 tentang Peraturan Dasar Pokok-pokok Agraria) Act No. 16 of 1985 regarding Housing (Undang-undang No. 16 Tahun 1985 tentang Rumah Susun) Act No. 24 of 1992 regarding Spatial Planning (Undang-undang No. 24 Tahun 1992 tentang Penataan Ruang) Act No. 4 of 1996 regarding the Right to Mortgage Land and Objects Associated with Land (Undang-undang No. 4 Tahun 1996 tentang Hak Tanggungan Atas Tanah Beserta Benda-benda Yang Berkaitan Dengan Tanah) Government Regulation No. 10 of 1961 regarding Land Registration (Peraturan Pemerintah No. 10 Tahun 1961 tentang Pendaftaran Tanah) Government Regulation No. 40 of 1996 regarding the Right to Use a Work, the Right to Use a Building and the Right to Use Land (Peraturan Pemerintah No. 40 Tahun 1996 tentang Hak Guna Usaha, Hak Guna Bangunan Dan Hak Pakai Atas Tanah) Government Regulation No.24 of 1997 regarding the Registration of Land (Peraturan Pemerintah No. 24 Tahun 1997 tentang Pendaftaran Tanah)
An analysis of this aspect of land management is beyond the reach of the report, however, it is noted that in 1992, a 25 year plan was launched to register and issue land titles. The National Land Agency (BPN) is presently compiling a database of laws, regulations and court decisions regarding land to facilitate a streamlining the land tenure system. It has been recognised that there is a need for a more coherent landuse decision-making system and a functional national land information and data system. When it is in place, it will assist district level governments in making land resource decisions.2 The following aspects of land management are particularly important from an environmental perspective: 1. Systems of acquiring land ownership. For example, the right to own land through the development or reclamation of wetlands may have a negative impact on land-use management. This situation has arisen where mangrove areas are changed into fishponds with the aim of acquiring land rights.3 2. The interface between state systems and traditional forms of land ownership. It is acknowledged that traditional forms of land use involving community-based forms of land use are often supportive of sustainable long-term use. Although customary law (hukum adat ) is recognized by state law as giving a quasi-legal right to land and resource use, it can be displaced by the government in the interest of other development priorities. 3. The form of land use rights. 2 State
Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 p.32. Strategy and Action Plan for the Management of Indonesian Wetlands Government of Indonesia and the Kingdom of Norway p.28. 3 National
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Short-term resource use rights such as forest use rights have been said to provide a disincentive to preserve resources.4 This is particularly relevant for logging concessions where they are not based on the cycle of forest re-growth but are based on the period of one logging cycle. MINING Mining activities deserve special attention in land use management because of the potential for mining to destroy land. At the time of writing, a new National Mining Law was passed to replace Act No. 11 of 1967 regarding Mining (Undung-undang No. 11 of 1967 tentang Pertambangan). This statute has not been reveiwed in the report. A number of regulations have been passed under the old law such as Government Regulation No. 31 of 1967 on the Implementation of Act No. 32 of 1967 regarding Mining (Peraturan Pemerintah 32 Tahun 1967 pelaksanaan Undang-undang No.11 Tahun 1969 tentang Ketentuan-ketentuan Pokok Pertambangan). Important regulations that have not been reviewed in the report are:
Decree of the Minister for Mining and Energy No. 103 of 1994 regarding Oversight of the Implementation of Environmental Management Plans in Mining and Energy (Keputusan Menteri Pertambangan Dan Energi No 103.K Tahun 1994 tentang Pengawasan Atas Pelaksanaan Rencana Pengelolaan Lingkungan Dalam Bidang Pertambangan Dan Energi)
Decree of the Minister for Mining and Energy No. 1211 of 1995 regarding Prevention and Handling of Environmental Damage and Pollution in Mining (Keputusan Menteri Pertambangan Dan Energi No. 1211 Tahun 1995 tentang Pencegahan Dan Penaggulangan Perusakan Dan Pencemaran Lingkungan Pada Kegiatan Usaha Pertambangan Umum)
The environmental control of mining activities largely relies on the environmental impact assessment of a proposal to construct a mine. Once a decision has been made to allow a mine to be established, the AMDAL documents (particularly the RKL and RPL) become a condition of the mining licence (ijin usaha tambang) (art 7(1) PP 27/99). Shortcomings mentioned in Chapter Six regarding the timing of the AMDAL assessment also apply to mining operations. Some brief comments will be made below in relation to the old mining law. Act No. 11 of 1967 regarding Mining Undung-undang No. 11 of 1967 tentang Pertambangan Act No. 11 of 1967 regarding Mining (Undung-undang No. 11 of 1967 tentang Pertambangan) (UU 11/67) sets up a mining classification system based on the ore that is retrieved through the mining activity. Mining ore (bahan galian) is defined as the chemical elements, minerals, ore and all things rock-like including gemstones that form deposits from three groups: (a) strategic (b) vital (c) neither strategic nor vital (art 3)5
4 ibid.
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Classification C is most likely to involve small-scale mining such as sand, lime and chalk and sulphur. Classification A involves gold, copper, nickel, oil, and gas. The implementation of mining related to (a) and (b) is stated to be carried out by the Minister unless handed over to provincial government (art 4(1)&(3)) and implementation of mining related to (c) by provincial government (art 4(2)). Government Regulation No. 47 of 1997 regarding National Spatial Planning (Peraturan Pemerintah No. 47 Tahun 1997 tentang Recana Tata Ruang Wilayah Nasional) states that mining activities are to be included in the Use Zone (Kawasan Budidaya) (art 11(1)). Mining activities are able to take place as long as they do not disturb the preservation of environmental functions (art 47). According to Act No. 24 of 1992 regarding Spatial Planning, planning at the provincial level is to contain the directives regarding expansion of the mining zone (art 21(2)c). Licensing Licensing for groups A and B has been carried out at central government level. The mining licence has been issued by the Minister (art 17) based on consideration of the capacity of the applicant to carry out the mining activity (art 18). This provision has been supplemented by provisions in AMDAL regulations which cover the need to conserve and protect flora, fauna, scenic or other values. Oversight The administration and oversight of both the working of the mine and the imact of the mine are to be carried out by the Minister and regulated through the issuing of government regulations. Oversight is said to include oversight of the safety of operations, oversight of production, and other activities connected with the mine (art 29(2)). Notably there was no provision for oversight regarding environmental damage. Obligations The holder of the permission to mine has a responsibility to provide compensation to those that have land rights in the immediate area affected by the mine (art 25(1)). The amount of compensation payable is to be decided through negotiation (musyawarah) (art 27(1)). If agreement is not reached, the dispute is to be handed over to the Minister (art 27(2)), who in turn hands the matter to the District Court (Pengadilan Negri) (art 27(3)). Reclamation and rehabilitation of land Mining activities inevitably disturb the land. Provision is made in article 30 for reclamation and rehabilitation of land. The provisions are quite bare. For example, the considerations to be taken into account only include human health and not the protection of environmental functions. A number of regulations and guidelines have been passed in relation to reclamation and rehabilitation of land disturbed by mining, which have not been reviewed for the report. Administrative sanctions The Minister has been empowered to cancel a mining licence if there has been a failure to fulfil conditions of an applicable government regulation or presidential decree (art 22(1) or where it is in the interest of the state (art 22(2)). There are no further provisions regarding administrative sanctions.
5 This classification is repeated in article 11 of Government Regulation No.47 of 1997 regarding National Spatial
Planning (Peraturan Pemerintah No. 47 Tahun 1997 tentang Recana Tata Ruang Wilayah Nasional).
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Criminal sanctions Criminal sanctions are available where there has been a failure to obtain a licence (art 31(1)) or where a mining operation does not fulfill or implement conditions contained in the Act or applicable regulations (art 33). Public participation There is no opportunity for public participation in decision-making regarding mining licences. It is, however, provided for in environmental impact assessment. ILLEGAL MINING Illegal tin mining in Bangka Island and gold mining in North Sulawesi are two examples of illegal mining, which is causing major environmental and human health problems. It is not just the mining activity which is problematic it is also the pollution caused by the mines. Provision has been made for control of the use of mercury in processing gold ore in Ministerial Regulation No. 01.P/76/M.PE/1991 regarding Occupational Safety in the Use of Mercury in Gold Mining (Peraturan Menteri Pertambangan Dan Energi No. 01.P/76/M.PE/1991 tentang Keselamatan Kerja Pada Penggunaan Air Raksa Dalam Usaha Pertambangan Bahan Galian Emas). Space does not permit a full consideration of this regulation although the observation is made that it relies on a licensing and reporting system and so is not applicable to illegal mining. This form of mining is illegal as it is outside the legal framework for the conduct of mining operations. It is small-scale mining, usually carried out by local people. Moreover, it would be unlikely to meet any environmental requirements such as requirements for the discharge of effluent containing toxic waste or occupational health and safety levels. The question that arises is how can the legal system deal with this situation, if at all? Perhaps one way of dealing with these activities would be to legalise them, commence a major educational campaign in the local region with the aim of reducing the scale of activity, and introduce environmental and health controls in regard to the remaining activity. CONCLUSIONS AND RECOMMENDATIONS In identifying the gaps in the reach of environmental law, a key issue is whether land management has been prioritised as an issue of national concern. This could be achieved through a statute on land management. A national law could be drafted to ensure that land is used within its capability. It could establish overriding principles and rules for the protection of land in the grant of land use rights and give formal recognition of the role of adat law in the management of land. Statutory duties upon landowners could be strengthened and combined with stronger enforcement powers and the introduction of incentives. This could be supplemented by a cooperative approach, which emphasises the building of local initiatives for the protection of land and soil. Protection of land also requires specific provision in sectoral law concerning control of activities that have the potential to destroy or degrade land. It applies, for example, to the need for water resources laws to provide protection of land from degradation by flooding, (e.g. through laws that restrict the blocking, diversion or excavation of watercourses), as well as laws on protected areas that prohibit the destruction of
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native vegetation growing in the bed or on the banks of a water course.6 Another example is the need to include provisions designed to prevent intrusion from the sea when drafting laws on groundwater. National spatial planning law could give further attention to land conservation. This would involve imposing greater accountability for decisions concerning development in rural areas, change of land use, and subdivision of land. This would prioritise land conservation at the national level and ensure consistency between provinces and districts. In relation to mining, AMDAL regulations need ensure that assessment takes place before any disturbance to land. Environment protection measures within the licensing of mining operations, and the conservation and rehabilitation of land need to be strengthened.
6 These
sorts of provisions are often contained in water resources laws and soil conservation laws.
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CHAPTER 15 – SOIL MANAGEMENT Introduction Soil may be described as a resource that is exhaustible, but potentially maintainable and renewable.1 Soil is one of the country’s most important physical resources. The loss of fertile soil has a significant impact on agriculture and therefore the life and economy of the nation. Management of land and soil are frequently interconnected. For example, poor land management through the removal of vegetation may lead to soil erosion. A difference between land and soil management is that land resources are less “renewable” than the soil. Whilst soil can be reclaimed through the application of technology, the renewal of land requires examining the operation of socio-economic, political, and legal forces. Hence, the management of land is likely to be more difficult than the management of soil. Interference with soil can occur from: (a) land use, depending on the nature and extent of certain land use; (b) damage to vegetative cover, due in particular to deforestation and grazing; (c) interference with the structure of a terrain, through road building and human settlements; and (d) interference with watercourses, by straightening, building channels, shortening or impounding flowing waters.2 Knowledge of soil processes is the first requirement for the management of soil. It requires the inventorisation and evaluation of soil. Comments made in relation to spatial planning and the need for inventory making and evaluation are applicable to soil management, particularly the need for national standardisation in methodology. Recommendations in relation to soil management in Indonesia have mentioned the need for an inventory of the location and condition of critical sites and for systematic action to restore land productivity.3 It has also been recommended that there be legal restrictions on the conversion of land use.4 As far as such restrictions are designed to protect soil, there is an overlap between spatial planning law and other laws that impact on soil. AGRARIAN AFFAIRS Act No. 5 of 1960 regarding Agrarian Affairs Undang-undang No. 5 of 1960 tentang Peraturan Dasar Pokok-pokok Agraria This Act establishes the basic principles behind the concepts of land rights and land use in Indonesia. It includes a broad statement to the effect that the protection of land, including increasing its fertility and prevention of damage, is an obligation of each person, legal entity and authority that has a legal relationship to the land (art 15). It does not include a concept of soil management nor does it place soil management within a framework of ecosystem protection.
D, Guidelines for Modern Resource Management – Soil – Land – Water – Air, Charles E. Merrill Publishing Company Ohio 1983 p.77. 2 GTZ, Environmental Handbook Documentation on Monitoring and Evaluating Environmental Impacts, German Federal Ministry for Economic Cooperation and Development, GTZ, Eschborn, 1995 at p. 395. 3 State Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997 p.32. 4 ibid p.34. 1 Greenland
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Act No. 12 of 1992 regarding the System of Cultivation Undang-undang No. 12 Tahun 1992 tentang Sistem Budidaya Tanaman Act No. 12 of 1992 regarding System of Cultivation (Undang-undang No. 12 Tahun 1992 tentang sistem Budidaya Tanaman) states that the use of land for the expansion of cultivation is to be in accordance with the requirements of spatial planning and method of land use based on existing laws (art 44(1)). Obligations It goes on to state that activities are to be carried out with attention to appropriateness and the capacity of the land as well as the preservation of the environment, especially the conservation of soil (art 44(2)). Licensing Licenses must be obtained for cultivation above a certain scale (art 48(1)). It is stated that in granting the licence, attention must be given to economic, social and cultural aspects, natural resources, the environment and other strategic interests (art 48(2)). Whilst it is stated that licensing may be the subject of further regulation, it is notable that no specific reference is made to soil conservation in relation to cultivation. This could, however, be in legislation that has not been reviewed for the report. PRODUCTION OF BIOMASS Government Regulation No. 150 of 2000 regarding the Control of Land Damage for the Production of Biomass Peraturan Pemerintah No. 150 Tahun 2000 tentang Pengendalian Kerusakan Tanah Untuk Produksi Biomassa This regulation addresses the destruction of land/soil for the production of biomass. Biomass is defined as plants and parts of plants such as flowers, seeds, fruit, leaves, branches, sticks and root that are included in farming produce, plantations and plantation forests (hutan tanaman). The control of soil damage is defined as the prevention and handling of soil damage as well as the restoration of the condition of the soil. The basic character of the soil is stated to include the physical, chemical and biological character of the soil (art 1). Scope of the regulation Scope of the regulation includes the determination of soil quality criteria for the production of biomass and the means to prevent, take care of and restore soil damage (art 2). Criteria Criteria are to be established at the national and regional level (art 4). At the national level, criteria are to be established for erosion, drought and wetlands in relation to farming, plantations and planted forests (art 5). Criteria are to be established at the regional level by the governor through the adoption of national criteria or formulating criteria that are more stringent in view of local conditions. If criteria are not passed at the regional level, the national criteria are to apply (art 6). The method of determining criteria is to be determined by the head of BAPEDAL (art 7). Inventory making The regulation states that the mayor is to determine the condition and status of soil damage based on soil analysis as well as climate, topography, extent of damage and land use (arts 8 – 10). 200
Obligations upon citizens A general obligation is imposed upon every person responsible for a business or activity to prevent soil damage (art 11). There is an obligation to deal with damage where damage has occurred (art 12(1)). BAPEDAL is to determine how this is to be carried out (art 12(2)). Similar obligations are imposed in relation to the restoration of soil quality (art 13). The elucidation imposes addtional obligations in relation to prevention. It states that all activities are to be in accordance with the district spatial plan (elucidation art 11a.). An obligation is also imposed upon every business or activity that is estimated may give rise to a large and important impact on soil quality to possess an AMDAL (elucidation art 11b.).5 There is an obligation imposed upon every business or activity that will not give rise to a large and important impact on soil quality, to implement an UKL and UPL before receiving a business or activity licence (elucidation art 11c.). These provisions are to apply to agricultural licences, plantation licences and plantation forest licences (elucidation art 11f.). The elucidation in regard to the obligation to restore soil quality refers to the available means to restore soil quality as being planting with appropriate plants, ameliorative actions using fertilizer, organic matter and lime, actions to conserve soil such as building terraces or other civil engineering solutions and planting with plants that will close the soil (elucidation art 13 (1)). If damage has occurred, a reporting obligation has been imposed upon the owners of land. Bare details as to the reporting obligation are contained in the regulation (art 17(2)). Obligations upon government If the results of oversight and verification provide evidence that damage has occurred then the governor/mayor is obliged to order the responsible business or activity to stop the breach that has occurred, take care of soil damage and restore the soil condition (art 18(1)). If not carried out, the governor/mayor is authorised to enable a third party to take action and impose a debt upon the responsible business or activity (art 18(2)). There are obligations to increase community awareness of soil issues (art 20). There are also obligations in relation to the provision of information to the effect that the governor/mayor is obliged to provide information regarding the condition of soil, the status of soil damage, planning, implementation and the results of control and activities that have the potential to give rise to soil damage (art 21(1)). This information is to be provided through the print media, electronic media or through notice boards (art 21 (2)). In this regard, rights are also established for the receipt of information (art 22). Oversight Oversight is to be carried out by district government (art 14(1). If the damage traverses district government boundaries, it is to be carried out by the governor (art 14(2). Similarly, if the damage traverses provincial government boundaries, it is to be carried out by the Minister and/or BAPEDAL (art 14(3). The oversight is to address whether or not conditions in licences have been complied with and whether soil quality is being maintained, where a business or activity does not need a licence (art 15). It is to be carried out periodically to prevent damage and intensively to take care of damage that has occurred and to restore soil quality. 5 It is not clear how this obligation relates to the list of businesses and activities that would otherwise be required to prepare an
AMDAL.
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Enforcement There is a provision stating that any person who carries out an action in breach of soil quality criteria will be liable under the criminal provisions contained in Act No. 23 of 1997 regarding Environmental Management. Institutional Authority
BAPEDAL and the Ministry for the Environment are the relevant authorities at the level of central government. The responsible authority in the regions is identified by referring to the instansi with responsibility for control of environmental impact or management of the environment. CONCLUSIONS AND RECOMMENDATIONS Scope of the law Currently no national law to draw together the sectors that have an impact on soil quality, such as: Water resources management Forestry Agriculture Transport Solid waste disposal Spatial planning Formal procedures for coordination between these sectors at the district level and provincial level need to be established. This could be done at the regional level although there would be advantages in terms of national consistency if it were to be established at the national level. PP 150/2000 is limited in its scope to the activities of farming, plantations and planted forests. Thus, it does not address the wider problem of soil degradation in Indonesia. If a national law or a regional regulation were to be drafted, it would need to contain definitions of such terms as soil erosion, soil degradation and conservation. It would also need to have an objects section and set out powers and authorities as well as statutory duties on landowners, together with prohibitions, sanctions and incentives. Contaminated land The present laws do not concern the introduction of certain hazardous materials on or into the soil, the application of the precautionary principle, standards and requirements, risk assessment and monitoring orders. If a laws and regulations relating to the clean up of contaminated land and abandoned sites are to be drafted, they should contain provisions regarding the making of an inventory, stakeholder participation, clean-up planning, clean-up planning by government agencies, government supervision, self-control and the use of orders to cleanup abandoned sites.6 Implementation at the regional level Whilst PP 150/2000 makes BAPEDAL and the Ministry for the Environment the relevant authorities at the level of central government, the responsible authority in the regions is stated to be the instansi with responsibility for control of environmental impact or management of the environment. Authority at the regional level has, therefore, not been identified. 6 GTZ, Technical Assistance in Environmental Law and Institutional Development in Environment – Focus,
Methodology and Resources GTZ 1998, Bonn at p.20.
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The provisions of PP 150/2000 are not specific in their terms and will need to be elaborated at the regional level in relation to the sorts of activities that may lead to degradation of soil such as excessive tillage, overclearing, mineral extraction, disposal of waste, road construction, the failure to control plants and animal pests and other human activities. It may be worthwhile to consider the establishment of local soil conservation boards the majority of whose members could be made up of landowners who could be responsible for raising awareness of land and soil issues and enforcement. They could also carry out cooperative programs for land rehabilitation and conservation. Inventory making The need for an inventory of the location and condition of critical sites and for systematic action to restore land productivity has been sufficiently addressed in PP 150/2000 to enable a process of inventory making to be started at the district level. Obligations upon citizens The obligations contained in PP 150/2000 are non-specific. As far as they rely on spatial planning, they are affected by the weaknesses already discussed in the report regarding spatial planning. As far as they rely on AMDAL, they are affected by the weaknesses in the AMDAL process. The relevance of the UKL and UPL for soil management needs to be set out with greater specificity regarding environmental controls relating to soil. Guidelines regarding the restoration of soil quality are required to be passed at the national level, if they have not yet been passed. The reporting obligation will need to be set out in more de`[il at the regional level. Obligations upon government Detailed procedures are needed to provide for the power of the governor/mayor to enable a third party to take action to restore soil quality and impose a debt upon the responsible business or activity. Procedures are required regarding building community awareness of soil issues and the provision of information. Further detail is also required regarding oversight, particularly coordination between the various departments whose activities have an impact on soil quality.
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CHAPTER 16 – WATER RESOURCES MANAGEMENT Introduction The management of water resources requires the law to draw together a number of aspects of environmental management to create a coherent legal arrangement. This chapter will review some aspects of the legal system relating to water resources management. The current legal system is, however, the subject of a major overhaul, which aims to install a “new paradigm” for water resources management in Indonesia. Rather than present a critique of legislation that is already recognised as inadequate, there will be a focus on the draft National Water Act (“the Draft Act”). As the Draft Act has changed over the months taken to prepare the report, the detail of draft provisions will not be selected for attention. Four components of water resources management, namely: planning, conservation, allocation and regulation will be discussed in general terms regarding what would be desirable to include in the National Water Act. The background to the review is the concept of Integrated Water Resources Management (IWRM), which represents a convergence of thinking internationally on how to manage water resources. This convergence has identified the river basin or watershed as the fundamental unit for the management of water resources on a hydrological basis. WATER RESOURCES PLANNING Definitions - surface water, groundwater and seawater Under integrated water resources management (IWRM), it is essential that the management system deal with both groundwater and surface water. To date in Indonesia, water resources legislation has dealt separately with groundwater and surface water. This deficiency will be rectified in the Draft Act, which defines water as (art 1(2)): all water above and below the surface of the earth, including groundwater, rainwater, and seawater that can be used on land.
As the hydrologic unity of the river basin is the unifying principle, this list should include estuarine waters and could also include coastal waters.1 This has not been provided for in the Draft Act. The concept of “seawater that can be used on land” refers, for example, to the use of seawater for prawn and fishponds and salt manufacture as constructed by humans. The definition of water leaves out seawater that is not used on land, for example estuarine waters such as salt marshes, coastal and inter-tidal areas, bays, harbours, lagoons, inshore waters and channels. It would be preferable to provide a definitive list of water bodies that are to be included within the definition of waters. Planning Within a hydrological concept of water resources management, the plan for the watershed is the key to coordinating all the related government departments, private entities, and water users. The plan is the tool to integrate sectoral interests and other stakeholders within a watershed. To integrate water use on a watershed basis, both groundwater and surface water use needs to be included in the planning process, as
1 The
European Directive includes coastal waters within its definition of surface water: Article 2 Joint text approved by the Conciliation Committee Provided for in article 251(4) of the EC Treaty Directive 2000/ EC of the European Parliament and of the Council establishing a framework for Community Action in the field of water policy.
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well as the ecology of habitats that come into contact with surface water and groundwater.2 In the Draft Act, planning consists of three activities: inventory making; determination of river territories; and making the plan. Each of these activities will be discussed below. Inventory making The inventory will include information regarding the condition and function of water resources, its potential, infrastructure, and hydrological condition. There should be specific indication as to the subject matter that must be included in the inventory to make it complete. The subject matter could include information relating to surface water and groundwater availability, quantity and quality, water withdrawals and the ecological and human value of the water resources. It is particularly important that groundwater be included in the inventory as commonly there is there is no idea as to how much groundwater exists, who withdraws it, how much and where.3 The government authority responsible for the taking of the inventory and the procedure to be followed should be indicated in a national instrument. Determination of river territories Currently there are at least 90 river territories that have been codified in law - as stated in the appendix to Ministerial Regulation of the Minister for Public Works No. 39 of 1989 regarding the Distribution of River Territories (Peraturan Menteri Pekerjaan Umum No. 39 Tahun 1989 tentang Pembagian Wilayah Sungai). Provincial governments control 73 of these river territories, central government controls 15 and government owned corporations control two river territories: Appendix I, II and III of Ministerial Regulation of the Minister for Public Works No. 48 of 1990 regarding the Management of Water and Water Resources in Rivers Territories (Peraturan Menteri Perkerjaan Umum No.: 48/PRT/1990 tentang Pengelolaan Atas Air Dan Atau Sumber Air Pada Wilayah Sungai). It is likely that the act will establish four kinds of river territories: a. a local river territory - where there is a river territory, a section of a river territory, or a river basin, the whole of which is found within a district government area; b. a regional river territory - where a river territory exists in more than one district government area; c. a national river territory - where a river territory exists in more than one province; and d. an international river territory - where a river territory exists in more than one country. On the basis of the above, it seems that the present configuration of watershed boundaries will change wherever a local river territory is established, as in each instance responsibility will move down from the provincial to the district government level. The concept of the local river territory will need to be fully developed. The inclusion of groundwater in the definition of the river basin means that the final determination of the boundaries may not be possible until agreement is reached as to how to regard groundwater in the determination of the boundaries of a river territory. Making the plan The entity responsible for planning will depend on the designation of the river basin. Thus, the entity that carries out the inventory may be different from the entity that is responsible for planning. Under the Draft Act, it is likely that the planning process is to be carried out by the mayor for local river territories, the 2 There
is an interrelationship between ecological conditions and water quality and quantity. For example, the ecological condition in wetlands will often indicate the state of groundwater. 3 Shah T, Molden D, Sakthivadivel & Seckler D The Global Groundwater Situation: Overview of Opportunities and Challenges International Water Management Institute, Colombo 2000 pp.1-25 at p. 18.
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governor for regional river territories, and the minister for national river territories. It is also likely, however, that the Act will not designate a specific government body to undertake water resources planning within the particular level of government or any procedural obligations in developing the plan. The Act or subsequent regulations should state all those who will be involved in making the plan i.e., all the relevant government departments, and stakeholders. As the plan is to be the basis for all future action, it is important that the plan be as comprehensive as possible. This would be assisted by the provision of detail in the National Water Act or in government regulations regarding the considerations that must be taken into account and the procedure to be adopted in formulating the plan. It could be stated in the National Water Act or government regulations that the plan is to indicate the measures that are obligatory and optional. It could also be stated that the plan itself is legal instrument - if it is to create legal rights and obligations or to give legitimacy to decision-making then it should have a legal status.4 CONSERVATION OF WATER Conservation decisions focus not on water use but on limiting water extraction to a level that will allow sustained use over time.5 Ideally, conservation decisions should be based on a physical, chemical and biological assessment of water resources and their infrastructure. Good conservation decisions will depend on the adequacy of the planning process, especially, the collection of data in the inventory. Given the fact that Indonesia faces regular water shortages, particular attention should be given to water conservation in the national legislation. ALLOCATION OF WATER Allocation between users is said to be the most conflict-ridden of the three kinds of management decisions.6 Different users may have specific and competing uses for water and may have developed expectations of use levels that need to be changed in the interest of improved efficiency. There may also be competition between districts, for example, between an upstream district that requires water for irrigation and a downstream district that requires water for industry and urban development. Allocation decisionmaking in Indonesia also needs to take into account the water shortages that occur because of the seasonal variations of rainfall. 7 It is therefore important that procedures for allocation decision-making be introduced at the national level to ensure accountability in allocation decision-making. This will require procedures to secure the participation of all stakeholders and a consideration of all stakeholder interests. The economic value of water The National Water Act is likely to introduce the concept that water has an economic value. By recognising the economic value of water, the Act will set up a framework for the introduction of property rights in water. This will allow for a pricing approach to allocation, the introduction of economic incentives to conserve water by linking the cost of water to the amount of water consumed, and a system for cost recovery. was made by Gardner A, “Water Allocation Planning” in Bartlett R, Gardner A and Mascher S (Eds), Water Law in Western Australia: Comparative Studies and Options for Reform The Centre for Commercial and Resources Law WA 1997 pp.239-266 at p.241. 5 S Hanna S, “Efficiencies of User Participation in Natural Resource Management” in Hanna S and Munasinghe M (eds), Property Rights and the Environment – Social and Economic Issues Beijer International Institute of Ecological Economics and The World Bank Washington DC 1995 pp.59-68 at p.62. 6 ibid p.63. 7 Asian Development Bank, Indonesia Economic Policies for Sustainable Development REDCON Undated at p.33. 4 This point
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The establishment of economic instruments based on the economic value of water is, however, a complex process. Regulations will need to be prepared to identify the factors that are to be taken into account in fixing the price to be charged. Agenda 21 states that the various available options for charging water users (including domestic, urban, industrial and agricultural water-user groups) have to be evaluated and fieldtested. It is acknowledged that further development of economic instruments is required so that they can take into account opportunity costs and environmental externalities. Field studies on willingness-to-pay should be conducted in rural and urban situations.8 Whilst Agenda 21 states that the role of water as a “social, economic and life sustaining good should be reflected in financial instruments”,9 it acknowledges that there needs to be better understanding of pricing policies, environmental taxation and other aspects of development economics.10 The methods and principles to be adopted in calculating charges for water will need to be worked out before regulations are passed in this regard. Pricing water for cost recovery The Draft Act contains the initial components of a framework for a user pays system of water resources management. The use and exploitation of water resources not including use for basic needs, is to bear a user tax for groundwater and surface water. The tax (pajak), which is described as a levy (iuran), will cover expenses for: a. servicing the use of water resources; b. conservation of water resources; c. operation and maintenance of water resources; and d. operation and maintenance of existing water resources infrastructure. A basis will be established for full cost recovery. The need for full cost recovery is particularly urgent in regard to piped water as one of the difficulties faced by the Regional Drinking Water Supply Companies (Perusahaan Daerah Air Minum) (PDAM)) is the level of unaccounted-for-water caused by old and dilapidated infrastructure that needs replacing. Pricing the use of groundwater is an area that has also been identified as needing urgent attention.11 There will need to be coordination of the pricing of surface and groundwater. In the longer term, these water rights could be bought and sold among right holders.12 Regulations will, however, need to explain the method and principles that are to be applied in calculating the price or charge for water. Pricing water for allocation The price of water may also be used as a policy instrument for the allocation of water resources. The longterm use of pricing for this purpose, however, needs to take into account the possible economic and social impacts on the urban and rural poor. Alternatives to the pricing mechanism should be explored. 8 Chapter18.15 9 Chapter
18.17 8:36 - 8:38 11 Asian Development Bank, Indonesia Economic Policies for Sustainable Development ADB REDECON Undated at p. 39. 12 Space does not permit an exploration of the issues that arise in considering the economic value of water. It is expected that a separate policy statement will be prepared for the government on the economic value of water which will consider (i) economic incentive instruments (ii) opportunity costs (iii) competitive market pricing/willingness-topay/residual return approach or a combination of these (iv) financial incentives (v) economic analysis (vi) pollution charges, and (vii) administration charges: World Bank Mission Aid Memoire, September/October 2000 Water Resources Sector Adjustment Loan 10 Chapter
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Alternatives that have been suggested include basin-wide cooperative management organizations, and water rights exchanges.13 This will need to be considered in drafting further regulations. The efficient use of water resources Increased efficiency in water use in Indonesia will be facilitated by the pricing approach discussed above. In the Draft Act efficient use of water is said to be relevant to a number of activities: the method of water use, water supply and hydro power, water use, water resources development and the commercial utilisation of water resources. (a) The method of use The method of use can lead to efficiency gains through the reallocation from lower to higher value uses. For example, the change of use of water from agriculture to municipal or industrial use or from low value crops to high value crops can increase the economic productivity or value of water. Reallocation of methods of use may entail social or equity losses. Social equity aspects mean that the establishment of procedures for democratic decision-making through user participation is particularly important. Determination of method of use will also require coordination between the authority responsible for spatial planning and the authority that prepares the river plan. Procedures will be needed to establish duties and obligations to ensure coordination with spatial planning and the planning of water resources management. (b) Water supply Water supply will be the responsibility of the mayor for a local river territory, the governor for a regional river territory and the minister for a national river territory. In some provinces water supply is likely to be provided by bulk water supply businesses. There is, therefore, a close connection between water supply and the commercial utilisation of water. (c ) Water Use The level of government responsible for water use will depend upon whether the river territory is local, regional or national. Each province and each locality is to determine their priorities for water use. The Draft Act should indicate the considerations to be taken into account in determining water use priorities is such a way that the government can be held accountable for decision making. (d) Water Resources Development Development of water resources includes building of dams, irrigation systems using surface and groundwater, conserving and reclaiming wetlands, development and reclamation of estuaries, exploitation of hydropower for electricity and the processing of sea water for use by industry. Development of water resources is to be the subject of regulations. Accountability in this regard will need to be established. There will need to be a list of considerations to be applied in deciding upon the development of water resources. Drafting regulations will provide the opportunity for rulemaking, for example, rules to create obligations to consider matters in the development of water resources. (e) Water businesses The expansion of commercial activity in the utilisation of water resources by corporations, partnerships and private enterprise has been anticipated. Commercial utilisation of water resources will be carried out by legal entities such as National State Owned Enterprises (Badan Usaha Milik Negara (BUMN)) and Regional Development Bank, Strategy for the Use of Market-Based Instruments in Indonesia’s Environmental Management 1997 at p.37. 13 Asian
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Owned Enterprises (Badan Usaha Milik Daerah (BUMD)). Partnerships may be entered into with such corporations and the private sector. The National Water Act will need to state the controls that may be imposed over water businesses through licensing. Amongst other things, regulations will need to establish the basis for the formation of customer contracts between consumers and licensed providers. REGULATION OF WATER USE Regulation of water use involves the imposition of control over the means and the rate of extraction of a resource. Control may take the form of prohibitions, obligations and licensing. Prohibitions The Draft Act should establish direct prohibitions in relation to water use. This could be done, for example, by a prohibition on both government and private individuals pursuant to which nothing is permitted in relation to water unless specifically provided for in the Act, a rule in a plan, or a water use licence. It is not yet clear whether the Act will include any prohibitions. Obligations - licensing Water use outside the fulfilment of basic human needs will require a licence. The breadth of the licensing obligation in the Draft Act may not be realistic, particularly in relation to the millions of pumpers of groundwater in Indonesia. It may be preferable to acknowledge these difficulties rather than establish an obligation within the Act is clearly difficult to implement. As an alternative, the Act could permit the introduction of innovative approaches at the local level. For example, rather than supervise the extraction of groundwater, it may be preferable to impose an obligation upon users, particularly farmers, to participate in recharge activities.14 Consideration could also be given to tiering licence requirements. This could be provided for under the watershed plan. The plan could state the activities that are permitted as of right and that require a licence.15 To allow for monitoring of all water use, a registration system could be devised. The National Water Act or regulations passed pursuant to the Act should outline the procedure to be followed in processing a licensing application including notice provisions, rights of third parties during the processing stage, and any rights of appeal. The considerations that are to be taken into account by the relevant authority in deciding a licence application should also to be listed. There is an opportunity to coordinate the licensing of water use with the control of effluent discharges, which has not yet been taken up in the Draft Act. A joint licensing system could be established to licence both water quality and quantity. Licensing both facets of water use would be possible by factoring the polluting impact of “return flows” into the water use licence.16 Administrative sanctions Currently the Draft Act does not provide for administrative sanctions.
14 This was regarded as a suitable requirement by Nagaraj N and Sampath RK, in relation to groundwater management
in India. Nagaraj N and Sampath RK, “A Comparative Study of Institutions in Western USA and India for Water Resource Management” Water and Energy International Vol. 56 No.4 October-December 1999, pp.54-61 at p.60. 15 Such as in the New Zealand Resources Management Act 1991, section 68 which provides that a plan may contain rules which prohibit, regulate or allow activities and have the force and effect of regulations. 16 Burchi S Preparing National Regulations for Water Resources Management – Principles and Practice FOA, Rome 1994 at p.82.
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Criminal enforcement The Act will provide criminal sanctions for certain intentional or negligent (art 66(2)) actions that breach the provisions of the Act. It is important that the formulation of the criminal provisions be as simply drafted as possible without compromising the comprehensiveness of the provisions. GROUNDWATER RESOURCES MANAGEMENT Ministerial Regulation of the Minister for Mines and Energy No.02.P/101/M.PE/1994 regarding the Adminstration of Groundwater Peraturan Menteri Pertambangan Dan Energi No.02.P/101/M.PE/1994 tentang Pengurusan Administratif Air Bawah Tanah As mentioned in Chapter Seven, there are a number of regulations that deal with groundwater including the Ministerial Regulation of the Minister for Mines and Energy No.02.P/101/M.PE/1994 regarding the Adminstration of Groundwater (Peraturan Menteri Pertambangan Dan Energi No.02.P/101/M.PE/1994 tentang Pengurusan Administratif Air Bawah Tanah) (“the Groundwater Administration Regulation”).17 This regulation will need to be amended so that it harmonises with the National Water Act. Governmental authority and responsibility Authority and responsibility for administration of groundwater is held by the Minister for Mines and Energy (art 3(1)) and is to be implemented by the Director-General for Geology and Mineral Resources (art 3(2)). This authority includes authority for coordination, the allocation and use of groundwater, licensing, research and exploration, control and oversight, conservation and the collection and processing of information regarding groundwater (art 3(3)). Inventory making There is a provision regarding inventory making, however, it does not allocate responsibility for the taking of the inventory or the procedure to be followed in this regard (art 4). Allocation of groundwater use The following priorities apply in the allocation of groundwater use (art 5(2)): a. drinking water b. household use c. industrial use d. farming e. irrigation f. mining g. urban affairs h. other interests. The only provision relating to the setting of these priorities is a provision that states that the priorities are to be determined with attention to the public interest and the condition of the location (art 5(3)).
17 The status of the regulations is not definite as they are Ministerial Regulations (Peraturan Menteri), which is neither a
Government Regulation or a Ministerial Decree.
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Licensing The Director-General has responsibility for licensing (arts 10-12, 14,15). The taking of groundwater is to be accompanied by a tax (pungutan) the size of which is to be set by the regional government (arts 16-17). In relation to oversight, this is to be carried out by the Director-General in cooperation with the governor and the related department (art 23(1)). These provisions will need to be amended in view of the National Water Act and regional autonomy. Obligations imposed on groundwater users All applications for a groundwater use licence are required to attach a UKL and UPL (art 20(1). A technical pedoman in this regard is to be prepared by the Minister (art 20(2)). This pedoman will need to be converted into legal form, to be binding at the regional level. Groundwater uses are also obliged to install a groundwater meter and assist in the collection of data regarding groundwater (art 22). Sanctions Administrative sanctions exist in bare form. At the request of the Director-General, the governor is obliged to suspend the withdrawal of groundwater if it disturbs the balance of groundwater or is leading to environmental destruction (art 21). The Director-General is able to revoke a licence if there is a breach of provisions relating to monitoring and the supply of data (art 24(2)). There is no provision for criminal and civil enforcement in the Groundwater Administration Regulation. CONCLUSIONS AND RECOMMENDATIONS Drafting The tendency seen in other statutes to concentrate on defining terms, describing concepts and stating principles needs to be avoided in the drafting of the National Water Act. The Act should allocate rights, obligations and prohibitions to levels of government and other participants in water management. As far as possible, it should include verifiable performance objectives. It should also outline procedures to be followed in relation to key aspects of decision making. Definitions The definition of seawater leaves uncertain the position of estuarine waters such as salt marshes, coastal and inter-tidal areas, bays, harbours, lagoons, inshore waters and channels. It would have been preferable to provide a definitive list of water bodies that are to be included within the definition of waters. Planning The planning of water resources management is the key to integrating the activities of all those who use water. The Act needs to impose clear rights and obligations in relation to planning. Consideration should be given to giving the plan a legal status. Accountability in planning would also be assisted by indicating the matters that can be taken into account in planning. There is also a need for a statement of the procedure to be followed in formulating a plan. Licensing A blanket licensing obligation may be too broad to be enforceable. The breadth of the licensing obligation in the Draft Act may not be realistic particularly in relation to groundwater, given that there are millions of pumpers across Indonesia. It may be preferable to acknowledge these difficulties rather than establish an obligation within the Act that clearly will be difficult to enforce. Alternative innovative approaches may be able to be devised at the local level. Guidelines in this regard could be prepared at the national level. 211
The provisions regarding licensing should to make a connection between the licensing of water use and the licensing of effluent discharges. There also needs to be provision for the content of water use licence. The Act or national regulations should outline the procedure to be followed in processing a licensing application including notice provisions, rights of third parties and any rights of appeal. The considerations that are to be taken into account by the relevant authority in deciding a licence application need also to be mentioned. Enforcement The provisions regarding sanctions need to be fully developed both in regard to administrative and criminal sanctions. Public participation Procedures for public participation should be established for classifying water resources, determining the use zone, determining the priorities for water use and allocating water uses. Market-based instruments The use of pricing as a tool for cost recovery and allocation needs to be given further detail. Mechanisms will need to be established to protect environmental and equity concerns and to ensure consistency across watersheds. Factors to be taken into account in setting prices should also be established at the national level. Groundwater New national law is needed to specifically address all aspects of groundwater use. It should include procedures to ensure the coordination of use of surface and groundwater.
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CHAPTER 17 - THE MANAGEMENT OF ECOSYSTEMS Introduction This chapter will concentrate on aspects of environmental law that affect ecosystems. In Indonesia there are diverse terrestrial ecosystems ranging from mangrove forests, to tropical lowland forest, to highland peat swamp. There is also a wide range of marine ecosystems. The ecosystems that will be considered in this chapter are forests, wetlands, the coast, and the sea. Ecosystems that need protection are found both inside and outside protected areas and both aspects will be considered in this Chapter. FORESTS Introduction This section is on national forestry legislation. It is not a comprehensive review. In failing to make a full review, there is a risk that a gap or weakness in the legislation will be wrongly identified. Where an aspect has been addressed by way of a Ministerial Decree or a lower level guideline (which has been missed by the report), a question arises as to whether or this is an appropriate level of lawmaking. Moving forestry protection measures higher up the legal hierarchy would in many instances increase accessibility. The protection of forests is important environmentally for many reasons including the prevention of soil erosion and landslides, the conservation of flora and fauna and the role forests play as a sink for greenhouse gases. In April 2001, the Ministry of Forestry estimated that the nation’s forests covered 147 million ha. made up as follows:1 29,326,027 ha. - protected forests 19,229,225 ha. - nature reserves or national parks 29,437,587 ha. - limited production forests 32,998,543 ha. - permanent production forests 36,036,822 ha. - convertible forests It has been pointed out that under represented forest habitat types, particularly lowland forests and wetlands must be added to the inventory of protected areas.2 Most provinces in Indonesia had lost 80% of their original lowland forest by the early 1990s.3 Harvesting of Indonesian forests is estimated at 33 million cubic meters per year, against a sustainable yield of about 22 million cubic meters. At this rate, remaining forests will be depleted in the next 20 years.4 The Asian Development Bank has stated that the primary threats to forests come from a combination of commercial logging (legal and illegal), the conversion of forestland into plantations, the proliferation of small landholder concessions, development projects such as mining activities and forest fires.5 The World Bank
1 Commitments for Sustainable Forestry Management – Achievements and Indicators, Ministry of Forestry, April
2001, Appendix 5. 2 State Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997 p.33 3 Asian Development Bank Country Operational Strategy: Indonesia March 2001 p.82. 4 ibid p.15. 5 ibid p.82.
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has identified the main issues as illegal logging, the imbalance between sustainable log supply and industry requirements, poor management of production and protection areas, and ill-conceived forest conversion. 6 1. Commercial forestry Commercial forestry is carried out in production forests and protected forests. Forestry concessions granted by the government to provide a guaranteed source of timber for a particular timber company have been the basis of organising forestry activities in Indonesia. In 1997, the Indonesian Country Report said that there needs to be a complete review of logging concession policy; dissemination, monitoring and enforcement of existing forest sustainability decrees; the development of strong sanctions for violations of sustainable forest practices; and an ecosystem labelling approach.7 Problems have been identified as nontransparent methods of auctioning, transferring and controlling forest concessions and generally poor management of production within production forests. Another problem within commercial logging is the imbalance between sustainable logging supply and industry requirements. 2. Illegal logging Illegal logging is the harvesting of timber in breach of prohibitions or obligations imposed in law and regulations or in breach of licence conditions. A clear example is logging in areas where it is prohibited to log, such as in forest nature reserves, (hutan cagar alam), in national parks (inside the core zones (zona inti)) and vast forest/jungle areas (zona rimba)), in conservation forests and in some protected forests. Another example is when logging practices in a production forest do not conform to a logging licence. 3. Conversion Forest conversion involves the conversion of forest to non-forest uses such as estate crops (palm oil) or human settlement. This issue is also a land use planning issue. At the district level there is a lack of detailed regulations regarding spatial planning, including mechanisms to coordinate spatial planning with natural resources management, to coordinate forest and watershed management between districts, to impose controls over planning or to provide checks and balances in the grant of development approval. Some control over forest conversion has been provided for in forestry law through the establishment of a “policy on banning forest conversion for estate crops” as set out in Ministerial Decrees No: 146/Kpts/II/2000 & 210/Kpts II/2000 regarding the Evaluation of Forest Conversion for Estate Crops. Subsequently the Minister passed a Decree No. 70 of 2001 regarding the Forest Land Designation and the Change in Status and Function of Forest Land (Keputusan Menteri Kehutanan No. 70/Kpts-II/2001tentang Penetapan Kawasan Hutan, Perubahan Status Dan Fungsi Kawasan Hutan Menteri Kehutanan). These instruments have not been reviewed in this report. However, the comment is made that these instruments are not legal instruments as they are non-binding guidelines. It is noted that the report entitled “Commitments for Sustainable Forestry Management – Achievements and Indicators”, Ministry of Forestry April 2001 stated that since the passing of the policy, 20 new permits were issued for conversion of forest as the applicants “completed all the prerequisites needed”.8 It is also noted
6 Memorandum of the President of the International Bank for Reconstruction and Development the International
Development Association and the International Finance Corporation to the Executive Directors on a Country Assistance Strategy of the World Bank Group for Indonesia February 8, 2001 at p.25. 7 State Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997 p.33 8 At 5.3
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that in relation to enforcement, it was reported that no field level enforcement activities had been taken to stop conversion of natural forest9 and there had only been one prosecution. 4. Small landholder concessions This aspect of forestry has not been dealt with in the report. The grant of small landholder concessions is related to spatial planning and land use planning issues, particularly as administered at the district level. 5. Mining Mining activities may impact on forest ecosystems through disturbance of existing vegetation and habitats. Environmental impact assessment of a proposed mine is a fundamental requirement and in this regard reference is made to Chapter Six regarding environmental impact assessment. Other aspects of environmental law relating to mining have been mentioned in Chapter 14. 6. Forest Fires Forest fires inevitably involve the destruction of ecosystems. The control of forest fires in terms of the air pollution has been discussed in Chapter Nine. The forestry law on forest fires will be discussed in this chapter. 7. Management of Protected Areas The role of protected areas is discussed in Chapter 12 relation to Act No. 24 of 1992 on Spatial Planning and Presidential Decree No. 32 of 1990 regarding Protected Areas. It is discussed further in this chapter and also in Chapter 18 in relation to Act No. 5 of 1990 regarding Biodiversity Conservation. FORESTRY Forestry activities are dealt with under spatial planning law, biodiversity protection law as well as forestry law. There is a lack of common terminology, however, as indicated in Table 13 below.
9 At
5.5
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Table 13: Forestry terminology in forestry law, spatial planning and biodiversity protection. FORESTRY
The Forestry Act Undang-undang No. 41 Tahun 1999 Tentang Kehutanan
PROTECTED AREAS SPATIAL PLANNING LAW Presidential Decree No. 32 of 1990 regarding the Management of Protected Areas (Keppres No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung)
BIODIVERSITY PROTECTION
1. Act No. 5 of 1990 regarding Conservation Of Biodiversity (Undang-undang No. 5 of 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya) 2. Government Regulation No. 68 of 1998 regarding Nature Sanctuaries and Nature Conservation Zones (Peraturan Pemerintah No. 68 Tahun 1998 tentang Kawasan Suaka Alam dan Kawasan Pelestarian Alam)
Protected Forests (Hutan Lindung)
Protected Areas (Kawasan Lindung) Areas that give protection to areas underneath - Protected Forest Areas (Kawasan Hutan Lindung) - Springs (Resapan Air) Areas that protect the same place - Beach borders (Kawasan Sempadan Pantai) - River borders (KawasanSempadan Sungai) - Areas around lakes, lagoons and reservoirs (Kawasan Sekitar Telaga, Laguna, Waduk) Nature Reserve (Cagar Alam) National Park (Taman Hutan Raya) Heritage Area (Kawasan Cagar Budaya)
Forest Nature Reserves (Hutan Cagar Alam)
Nature Sanctuaries (Kawasan suaka alam) Nature Reserves (Kawasan Cagar Alam) Wild Life Sanctuaries (Kawasan Suaka Margasatwa) Tourism Forests (Kawasan Hutan Wisata) Regions for the protection of Genetic Resources (Daerah Perlindungan Plasma Nutfah) Regions for the Protection of Wild Animals (Daerah Pengungsian Satwa)
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Nature Sanctuaries (Kawasan suaka alam) Nature Reserves (Kawasan Cagar Alam) Wild Life Sanctuaries (Kawasan Suaka Margasatwa)
Conservation Forests (Hutan Konservasi) Forest Nature Sanctuaries (Kawasan hutan suaka alam) Forest Conservation Zones (Kawasan hutan pelestarian) and Game Parks (Taman buru) National Parks (Taman Nasional)
National Parks (Taman Nasional) National Parks (Taman Nasional) Grand Forests (Taman Hutan Raya) Nature Tourist Parks (Taman Wisata Alam)
Nature Conservation Zone (Kawasan Pelestarian Alam) National Parks (Taman Nasional) Grand Forests (Taman Hutan Raya) Nature Tourist Parks (Taman Wisata Alam)
Production Forests (Hutan Produksi)
Act No. 41 of 1999 regarding Forestry Undang-undang No. 41 Tahun 1999 tentang Kehutanan Act No. 41 of 1999 regarding Forestry (Undang-undang No. 41 Tahun 1999 tentang Kehutanan) (UU 41/99) is the primary law relating to forestry in Indonesia. It covers forests both inside and outside protected areas. The following is a brief outline of UU 41/99, in terms of definitions, planning, management, licensing, the imposition of obligations and prohibitions, oversight, enforcement, and the role for traditional and local communities. Definitions The Act defines the following terms in article 1: Forestry, forest, forest zone, state forest, forest right, traditional forest area (hutan adat), production forest, protected forest, conservation forest, nature sanctuary forest zone (kawasan hutan suaka alam), nature conservation forest zone (kawasan hutan pelestarian alam), game park, forest product, government and Minister. Planning10 The provisions regarding planning set out the following stages (arts 11-20): making an inventory initiation of the forest zone determining the method of use formation of the forestry management area; and composing the plan.
10 A review of Government Regulation No. 33 of 1970 regarding Forest Planning (Peraturan Pemerintah No. 33 Tahun
1970 tentang Perencanaan Hutan) has not been made for the report.
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Each of these stages is described in outline with the detail being left to further regulation. Regulations that have not been considered for the report but which may be relevant in this regard include:
Decree of the Minister of Forestry No. 252 of 1993 regarding Criteria and Indicators for the Management and Conservation of Natural Production Forest (Keputusan Menteri Kehutanan No 252/Kpts-II/1993 tenang Kriteria dan Indikator Pengelolaan Hutan Produksi Alam Indonesia secara Lestari)
Decree of the Minister of Forestry No. 279 of 1999 regarding Fostering the Regions in Forestry (Surat Keputusan Menhutbun No. 279/Kpts-II/1999 tentang Pembinaan Wilayah di Bidang Kehutanan)
Decree of the Minister of Forestry No. 32 of 2001 regarding the Criteria and Standards for Strengthening Forest Zones (Surat Keputusan Menhut No. 32/Kpts-II/2001 tentang Kriteria dan Standart Pengukuhan Kawasan Hutan)
Decree of the Ministry of Forestry No. 70 of 2001 regarding the Determination of Forest Zones, Change in Status of Function of Forest Zones (Keputusan Menteri Kehutanan No.70/Kpts-II/2001 tentang Penetapan Kawasan Hutan, Perubahan Status dan Fungsi Kawasan Hutan Menteri Kehutanan)
The level of government responsible for making the inventory is not indicated (art 13) although there is mention of inventories existing at the national, regional (wilayah), river basin and management unit level (art 13(3)). The initiation/strengthening of the forest zone is to be carried out through the appointment of an area, setting the boundaries, drawing up a map and determining the zone. This is to be done with attention to regional spatial planning (art 15). Central government is also to arrange the method of use of the forest zone, which is to be the subject of further regulation (art 16). The formation of the forestry management area is to be implemented for each level of the province, district and management unit. It is to be done with attention to land characteristics, the type of forest, the function of the forest, the condition of the watershed, the social culture, the economy, community organisations at the locality including traditional law and the lines of government administration (art 17). Central government is to determine the boundaries of the zones for each river basin and island, and to optimise environmental, social and economic use by local communities (art 18(1)). It is stated that the width of forest is to be 30 percent of the width of the river basin or island with a proportional spread (art 18(2)). In relation to the composition of the plan, UU 41/99 states that central government is responsible for composing the forestry plan, based on the results of the inventory taking into account environmental factors and the social circumstances of the community (art 20(1)). This is to be the subject of further regulation (art 20(3). Management The provisions regarding management are also drafted in outline. It is stated that the forest is to be managed using a system of blocks based on ecosystem, forest type, function and a forestry use plan (art 22(2)). The blocks are to be divided into compartments based on the intensity and efficiency of management (art 22(3)). The forestry management plan is stated to be based on a block system devised
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over a certain period (art 22(4)). This is the only link between the plan and management. It is to be the subject of further regulation (art 22(5)). The layer of government responsible for management is not expressly stated in the section on management but would appear to follow a hierarchy of the: province district management unit. Thus, it can be seen that there is a lack of detail in UU41/99 regarding management. A comment needs to be made regarding the block system. In forestry, there is commonly a distinction between forestry activities in man-made forests and in natural forests. Both types of forest must be managed on the understanding that the harvesting rate is the same as the regeneration rate. It is only man-made forest, however, that utilises the block system. Man-made forest is managed by division into a number of blocks, the number being the same as the age of the trees ready for harvesting. Every year a block is cut, another block is planted. Natural forests, however, need to be managed by selective cutting, which leads the forest to regenerate naturally. In a well-managed selective cutting system, only the large trees are cut, to allow time for the smaller trees to grow for the next harvest season.11 This difference between use of a block system and selective cutting is not made apparent in the Act. The provisions regarding management plans are quite vague, they need to be more clearly set out and links should be made to management and planning of activities within protected areas. Links to licensing and enforcement should also be apparent. Notably, management principles for each forest classification are not set out. Prohibited land uses Curiously, there is no section in UU 41/99 dealing with prohibited land use in each type of forest. The Act states that the use of forests can be carried out in all zones except Forest Nature Reserves (Hutan Cagar Alam) and the core zones and vast forest/jungle zones of National Parks (Taman National) (art 24). The only express prohibition relating to land use is a prohibition against open cut mining in protected forests (art 38(4)). Permissible land uses About permissible uses, there is no provision which makes these uses prohibited without consent. Rather the Act states as follows: 1. Conservation Forest (which includes Forest Nature Sanctuaries, Forest Conservation Zones, and Game Parks (art 25) Regarding activities that are permissible in conservation forest, the Act says that other regulations are to be referred to (art 25). Thus, the Act makes no statement in this regard. If reference is made to Act No. 5 of 1990 on Biodiversity (UU 5/90), it can be seen that UU 5/90 deals with nature sanctuaries and nature conservation zones, but not game parks.
11 Wiryono,
“Only Clean Government Can Save the Forests” Jakarta Post 7 November 2001.
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Nature sanctuaries consist of nature reserves (kawasan cagar alam) and wild life sanctuaries (kawasan suaka margasatwa) (UU 5/90 art 14). In nature reserves, activities for research, general knowledge and education can be carried out. In wild life sanctuaries, activities for limited tourism can also able to be carried out as well as other activities supportive of culture. This is stated to be the subject of further regulation (UU 5/90 art 17) It would seem that there is a gap in the provision for game parks. 2. Protected Forest There is provision for the multiple uses of protected forests within certain limits. The activities that are permissible under licence in protected forests are: use of the area (usaha pemanfaatan kawasan) use of environmental services (usaha pemanfaatan jasa lingkungan) collection of non-timber forest products (pemungutan hasil hutan bukan kayu) (art 26) In protected forest, mining activities except open cut mining are allowable under licence from the Minister for Forestry (art 38 (3)&(4)). 3. Production Forest (Hutan Produksi) Within production forests, the full range of activities is permissible under licence, namely activities concerning: (art 28) use of the area (usaha pemanfaatan kawasan ) use of environmental services (usaha pemanfaatan jasa lingkungan) collection of non-timber forest products (pemungutan hasil hutan bukan kayu) collection of timber forest products (pemungutan hasil hutan kayu) use non-timber forest products (usaha pemanfaatan hasil hutan bukan kayu) use of forest timber products (usaha pemanfaatan hasil hutan kayu) This list of permissible activities does not establish which uses are permissible in national parks outside of the core zones and vast forest/jungle zone. Difficulties are also caused by the failure to define the meaning of each of the kinds activities that are permissible under licence in protected forests and production forests. None of these activities are defined in the Act and neither are they distinguished one from the other. Licensing Exactly how the licensing system relates to the management plan is not outlined in the Act. Neither is there any detail regarding the process to be adopted in relation to the grant of licences. The Act merely states that to guarantee principles of justice, firmness and preservation, licensing is to be based on considering the preservation of the forest and the certainty of the enterprise (art 31(1)). The delimitations in this regard are to be by further regulation (art 31(2)). These provisions fall short of outlining the considerations to be taken into account in decision-making regarding the grant of licences. As will be discussed below, the regulation regarding the protection of forests does not give necessary detail in relation to licensing (PP No. 28 Tahun 1985 tentang Perlindungan Hutan). Whilst regulations have been passed in relation to licensing within productive forests (PP 6 Tahun 1999 tentang Pengusahaan Hutan dan Pemungutan Hasil Hutan), implementing regulations are required regarding the permission of activities within conservation forests and protected forests. The Act only elaborates in relation to licence conditions that concern levies, provisions, rehabilitation funds and work funds (dana jaminan kerja). There is no detail as to how licence conditions may protect or conserve forests through appropriate forestry practices. In this regard, the Act only makes statements of 220
principle to the effect that the protection of forests and the conservation of nature is to done in an “optimal and preservative manner” (secara optimal dan lestari) (art 46). More detail on licensing is contained in guidelines. These guidelines have not been reviewed for the report and would need to be reviewed before a full explanation of the licensing system can be provided. Obligations on citizens A number of obligations are imposed on private entities involved in activities within forestry areas as follows: 1. A positive obligation is imposed upon the holder of a licence in relation to activities in protected areas and production forests to guard, protect and preserve the forest in the location of activities (art 32). This obligation is, however, vague and lacking in precision. 2. An obligation is imposed regarding the exploitation of forest products (stated to include the planting, cultivation, harvesting, processing and marketing of forest products) to the effect that harvesting and processing should “not exceed the natural supportive capacity of the forest” (art 33(2)). It leaves open the question of how to determine that the natural supportive capacity has been exceeded. 3. An obligation is imposed upon the holder of a licence for activities in protected areas and production forests to supply funds for the preservation of forest (art 35(2)). 4. An obligation is imposed in relation to rehabilitation of forest areas to the effect that every person who owns, manages or uses forest that is in a “critical state” or is “not productive” is obliged to carry out rehabilitation of the forest (art 43). There is a difficulty with this obligation as it involves an evaluation of what is “critical” or “not productive”. It also does not indicate what will be adequate rehabilitation. 5. An obligation is imposed upon mining operations to rehabilitate mining areas in accordance with a manual determined by the government (art 45). 6. An obligation is imposed protect the forest on the immediate area of work areas (art 48(3)). Responsibilities and prohibitions imposed on citizens The holder of a licence or a forest use right is stated to be responsible for the occurrence of fires in their work areas (art 49). This provision could be the basis of a presumption of liability based on the existence of a licence or other form of right. This is a particularly important provision given the difficulties that are likely to arise in proof of who actually started a fire without an eyewitness. No further detail, however, is provided in the Act in relation to this provision. Wide-ranging prohibitions are established under the Act, such as (art 50): prohibitions against forest clearance; logging within certain areas; starting forest fires; logging, harvesting or collecting forest products without a licence; receipt of forest products that are not accompanied by an authorisation; and mining without a licence.
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These prohibitions are clearly stated and could provide the basis for effective enforcement action. Oversight Oversight is to be carried out by the central government and regional government (art 60(1)). Both levels of government have authority to monitor, request information and investigate the thinning of forest (art 63). However, there is no explanation as to how these tasks are to be divided between the levels of government apart from a statement to the effect that central government is to carry out oversight in relation to the thinning of forest that is under the control of regional government (art 61). The Act states that further regulations are required regarding oversight (art 65). Administrative enforcement There is no detail in relation to the imposition of administrative sanctions. The Act merely states that administrative sanctions exist for the breach of provisions that are not the basis for criminal enforcement (art 80(2)). Criminal enforcement There is provision for criminal enforcement arising from the violation of obligations and prohibitions in the Act (art 78). Notably proof of the mental element of the commission of the offence is required in all offences, except the offence of shepherding domesticated animals into forest areas. Intention must be established in the prosecution of each offence except the offence of starting a forest fire, which also has an offence based on negligence (art 78(4)). As discussed in the Chapter 22, it will often be difficult to establish mental element of an environmental offence. Community rights There are bare provisions regarding access to information. For instance, the community can be informed of the planned allocation of forest, the use of forest products and forestry information (art 68(2)(b)). This right does not envisage an active role for the community in the planning and management of forestry. The community living inside and around forests is also entitled to receive compensation, if the loss of access to forests to meet their daily needs results from the grant of a forest concession (art 68(3). Thus, it can be seen that the community is merely a recipient of information or compensation, rather than an active participant in environmental decision-making. Furthermore, the right to compensation relies on regulations being passed (art 68(4)). Government Regulation No. 6 of 1999 regarding Operations and Forestry Within Production Forests (Peraturan Pemerintah No. 6 Tahun 1999 tentang Operasi dan Pengambilan Hasil Hutan dalam Hutan-Hutan Produksi) Government Regulation No. 6 of 1999 regarding Operations and Forestry Within Production Forests (Peraturan Pemerintah No. 6 Tahun 1999 tentang Operasi dan Pengambilan Hasil Hutan dalam HutanHutan Produksi) (PP 6/99) was passed pursuant to the previous Forestry Act, (Undang-undang No. 5 Tahun 1967 tentang Ketentuan-ketentuan Pokok Kehutanan) but is still effective under the new Forestry Act. It only relates to production forests and the legal aspects of commercial logging operations. It does not deal with the problems identified in 1997 regarding forestry practices and the control of forestry concessions. Space does not permit a full analysis of the regulation, however some aspects of the regulation are noted below.
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Definitions and terminology Difficulties are caused by the inclusion of defined terms that do not appear in UU 41/99 and some definitions that no longer harmonise with UU 41/99. In particular the terms of natural forest (hutan alam) and plantation forest (hutan tanaman) are not contained in UU 41/99. “Plantation forest” is defined as “forest that is developed through the framework of increasing the potential and quality of the forest through intensive cultivation.” “Natural forest” is defined vaguely as “a field that grows trees naturally that throughout forms an alliance between the biological life and its environment.” There is no definition of production forest (hutan produksi). Forest Use Rights (Hak Pengusahaan Hutan) (“HPH”) The regulation provides for the provision of the forest use right (Hak Pengusahaan Hutan) (“HPH”), which relates to natural forest and plantation forest (art 5(1)). The HPH is defined as a right to exploit the forest within forest production zone, consisting of the activities of planting, maintaining, securing, harvesting, processing and marketing forest products (art 1(9)). In the section on activities that are included within the HPH, in relation to natural forest it includes the right to log (penebangan kayu), prune, cultivate, process and market forest products (art 5(2)). It can be seen therefore that a clear definition of natural forest is required and also one that relates to other forestry terms. In relation to the plantation forest the HPH may grant the right to plant, cultivate, collect products, process and market forest products (art 5(3)). These activities do not completely equate with the definition of HPH. The HPH is distinguished from the right to collect forest products (Hak Pemungutan Hasil Hutan)(“HPHH”). There is, however, no similar listing of activities that are included within the HPHH. Each of the words relied on in the definitions need to be more clearly distinguished in their meaning. The HPH is stated to be granted by the Minister. This no longer accords with regional autonomy. It is said that licences are to be allocated through a bargaining process at an auction (art 6(1)). There is nothing, however, to guarantee the transparency of this process. The regulation sets the maximum size of HPH, namely, 100,000 ha for one province, and 400,000 ha for the whole of Indonesia and 200,000 ha for Irian Jaya (art 8). The right to use natural forest is granted for 20 years and the right to use plantation forest is granted for 35 years (art 15). The duration of this right does not take into account the timeframes involved in forest growth and thus it does not encourage sustainable use of the forest. This is particularly important in relation to natural forest. Obligations on Foresters There is a provision to the effect that the holder of a HPH is obliged to (art 19(1)(a)-(d)): make a Forestry Use Work Plan (Rencana Karya Pengusahaan Hutan) at least 18 months after receipt of the HPH make a five year work plan (Rencana Karya Lima Tahun) make a yearly work plan (Rencana Karya Tahunan) make an environmental impact assessment (Analisis Mengenai Dampak Lingkungan)(AMDAL)
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There is no indication as to the content of the work plans. An obligation is also imposed on the holder of a HPH to pay a levy (IHPH), a provision for forestry resources (PSDH) and Reforestation Funds (DR) (art 17(1) & (2)). There is little detail regarding how regeneration is to be carried out, such as a provision requiring the replacement of species to address the need to avoid the replacement of complex ecosystems with a limited range of species. Obligations on government There is no mention of the procedure to be followed in processing the application for a HPH. There is therefore, no provision for public participation in the grant of the HPH, nor are there procedures to ensure coordination with other sectors such as the sector responsible for water resources or the environment agency. Nor is there any provision for the imposition of conditions in the HPH listing the minimum conditions and optional conditions that may be included in the licence. Of particular importance are conditions that impose an obligation to oversee regeneration measures stating who is to do what, and where. Notably, it is not stated that work plans and the environmental impact assessment need to be taken into account in deciding whether or not to grant a HPH. As with other aspects of licensing and their relationship to the AMDAL process, the AMDAL is not required before the grant of licence, indeed it is to be done after the receipt of a HPH. This defeats the whole purpose of the AMDAL and undermines the role of the AMDAL as a coordination tool. Whilst the Minister is able to revoke a HPH for the breach of AMDAL obligations (art 21(1) (b) and art 34(f)), this is likely to be an inadequate remedy and is likely to occur only in exceptional circumstances (the circumstances have not been set out in the regulation). Administrative sanctions The only administrative sanction that is provided for is the revocation of the HPH by the Minister (art 21(1)). Although the Act states that if a licence is revoked there are consequences in terms of confiscation of funds (art 22(3), no detail is provided in this regard. Unlike UU 23/97 there is no provision for the imposition of sanctions to be delegated to the regional level. In view of the arrangements under regional autonomy, the level of government and agency or agencies authorised to impose administrative sanctions needs to be clarified. Government Regulation No. 28 of 1985 regarding Protection of Forests Peraturan Pemerintah No. 28 of 1985 tentang Perlindungan Hutan Government Regulation No. 28 of 1985 regarding Protection of Forests (Peraturan Pemerintah No. 28 of 1985 tentang Perlindungan Hutan) (PP 28/85) deals generally with the protection of forests. It predates UU 41/99 and it is not clear how it relates to the categories of planning and management set out in the Act. PP 28/85 sets out a number of important prohibitions such as prohibitions against: logging without a licence from an authorised government official (art 9(2)); collection or taking of forest produce without a licence from an authorised government official (art 9(3)); and burning forest except with a valid licence (art 10(1)).
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REGIONAL AUTONOMY AND LEVELS OF GOVERNMENT RESPONSIBILITY FOR FORESTRY ACTIVITIES Government Regulation No. 62 of 1998 on the Partial Delegation of Government Authority over Forests Peraturan Pemerintah No. 62 Tahun 1998 tentang Penyerahan Sebagian Urusan Pemerintah di Bidang Kehutanan Kepada Daerah Government Regulation No. 62 of 1998 on the Partial Delegation of Government Authority over Forests (Peraturan Pemerintah No. 62 Tahun 1998 tentang Penyerahan Sebagian Urusan Pemerintah di Bidang Kehutanan Kepada Daerah) (PP 62/98), which predates the Forestry Act, allocates certain authority to provincial and district level government. The authority that is handed over to provincial government is the authority for managing Grand Forests (Taman Hutan Raya) (art 2). It is not clear why authority should be handed to Provincial Government regarding Grand Forests and not other forms of protected forest. The importance of PP 62/98 is that it transfers authority for numerous matters to district government. This subject matter includes the conservation of land and water, the management of private and communal forest (hutan milik/hutan rakyat), protected forests, the management of traditional community forests, the management of non-timber forest product collection, wildlife management, and the implementation of forestry extension and community education programs (art 5). Pursuant to UU 41/99 central government was able to transfer part of its authority for forestry to regional government UU 41/99 (art 66(1)). Further provisions are to be by way of provincial regulations (rather than by central government regulations (UU 41/99 (art 66(3)). Regulation Number 25 of 2000 Regarding the Authority of Government and Authority of the Regions in Regional Autonomy Peraturan Permerintah Republik Indonesia No. 25 Tahun 2000 Tentang Kewenangan Pemerintah Dan Kewenangan Propinsi Sebagai Daerah Otonomi (PP 25/2000) The transfer of authority to the district level carried out by PP 62/98 was restated in regional autonomy law. Regional autonomy law transferred to the district level all authority not expressly allocated to central or provincial government. Thus to discern the practical extent of authority for forestry at the district level, it is necessary to go through a process of elimination to discern what is left for the districts. An inference must be made by considering what has been authorised for central and provincial government. A table has been prepared to assist an understanding of this approach.
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Table 14: Authority for forestry at the central, provincial and district levels - pursuant to PP 25/2000 and PP 62/98 showing inference in italics CENTRAL GOVERNMENT PP 25/2000 Macro planning The drawing up of a national macro plan on forestry and plantations, the rehabilitation of land and soil conservation. The drawing up of area divisions, design control and plantations. (PP 25/2000 (2(3) 4 f))
PROVINCIAL GOVERNMENT PP 25/2000
The drawing up of macro plans on forestry The drawing up of macro plans on forestry and plantations that cut across districts. and plantations that fall within a district. (PP 25/2000 (3(5) 4 g))
Classification A guideline for the implementation of Criteria and standards for the the establishment of management areas establishment of forest management areas, nature reserve areas, (PP 25/2000 (3(5) 4 e)) nature conservation areas and hunting grounds (PP 25/2000 (2(3) 4 d)) Active participation in determining areas for and changes in the functions and status of forests in the framework of spatial planning through agreement between the province and district. (PP 25/2000 (3(5) 4 p)) Boundaries Determination of forest areas and the change of their status and functions (PP 25/2000 (2(3) 4 c))
DISTRICT GOVERNMENT Inference
Implementation of the establishment of management areas that fall within a district
Participation in negotiations with the province regarding areas for and changes in the functions and status of forests in the framework of spatial planning through agreement between the province
Determination and safeguarding the boundaries of production forests and protection forests (PP 25/2000 (3(5) 4 b))
Assistance with safeguarding the boundaries of production forests and protection forests
A guideline for the implementation of the boundary system of a forest, the reconstruction and re-arrangement of the boundaries production forests and protection forests (PP 25/2000 (3(5) 4 c))
Implementation of the boundary system of a forest, the reconstruction and re-arrangement of the boundaries production forests and protection forests
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Inventory Criteria and standards for inventory making (PP 25/2000 (2(3) 4 b))
Management Criteria and standards for use systems for forest areas, nature reserve areas, nature conservation areas and hunting grounds (PP 25/2000 (2(3) 4 b))
A guideline for inventory making and mapping forests and plantations (PP 25/2000 (3(5) 4 a))
Inventory making and mapping forests and plantations
Management of cross-district forests and Grand Forests (PP 25/2000 (3(5) 4 n))
Management of forests that are self-contained within districts that are not Grand Forests (PP 62/98 (art 5)): Management of private and communal forest, protected forests, and the protection of forests. Management of traditional community protected forests. Management of non-timber forest product collection
Criteria and standards for the management of forests, nature reserve areas, nature conservation areas, hunting grounds and plantation areas. (PP 25/2000 (2(3) 4 a)) Criteria and standards for management, encompassing forest arrangement and plans for the management, utilization, maintenance, rehabilitation, reclamation and restoration of and supervision and control over forest and plantation areas (PP 25/2000 (2(3) 4 l))
Implementing the management, utilization, maintenance, rehabilitation, reclamation and restoration of and supervision and control over forest and plantation areas that cross a district – not the management of nature reserve areas, nature conservation areas and hunting grounds, including river basins
Establishment of the management of nature reserve areas, nature conservation areas and hunting grounds, including river basins (PP 25/2000 (2(3) 4 e)) Implementation of the management of nature reserves areas, nature conservation areas, hunting grounds, including a river basins within them (PP 25/2000 (2(3) 4 j))
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Implementing the management, utilization, maintenance, rehabilitation, reclamation and restoration of and supervision and control over forest and plantation areas that fall within a district - – not the management of nature reserve areas, nature conservation areas and hunting grounds, including river basins
Zoning
Licensing Criteria and standards for licensing - forest use - the use and collection of forest products - environmental services, - eco- tourism - hunting - captive breeding of fauna and flora conservation institutions and estates. (PP 25/2000 (2(3) 4 i))
The establishment of business licences for - hunting grounds, - hunting undertakings, - captive breeding for protected fauna and - flora and conservation institutions. (PP 25/2000 (2(3) 4 j)) The establishment of licences for - production of forest product utilisation businesses and - cross-provincial nature-related tourism businesses (PP 25/2000 (2(3) 4 k))
The implementation of zoning in plantations that go across districts (PP 25/2000 (3(5) 4 d)) The arrangement of an area division system, designing, control of land and primary industries in the plantation sector that go across districts (PP 25/2000 (3(5) 4 f))
The implementation of zoning in plantations that are contained within a district
Implementing cross-district licensing for - forest use - the use and collection of forest products - environmental services, - eco- tourism - hunting - captive breeding of fauna and flora conservation institutions and estates.
Implementing district licensing for - forest use - the use and collection of forest products - environmental services, - eco- tourism - hunting - captive breeding of fauna and flora conservation institutions and estates.
The implementation of crossdistrict licensing encompassing - utilization of timber products - the utilisation of flora and fauna which are not protected, - plantation undertakings and the - processing of forest products (PP 25/2000 (3(5) 4 j))
The implementation of district licensing encompassing - the utilization of timber products - the utilisation of flora and fauna which are not protected - plantation undertakings and - processing of forest products
The implementation of cross-district business licences for - hunting grounds, - hunting undertakings, - captive breeding for protected fauna and - flora and conservation institutions.
The implementation of district business licences for - hunting grounds, - hunting undertakings, - captive breeding for protected fauna and - flora and conservation institutions.
Monitoring of forestry activities that cross districts
Monitoring of forestry activities within districts
The arrangement of an area division system, designing, control of land and primary industries in the plantation sector that are contained within a district
Monitoring
Investigation Investigation of forestry activities that cross Investigation of forestry activities within over districts districts Administrative enforcement Minister may revoke HPH
Administrative enforcement regarding forestry activities that cross districts
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Administrative enforcement regarding forestry activities within a districts
Criminal enforcement
Conservation measures Criteria and standards for conservation biological natural resources and their ecosystems encompassing sustainable protection, preservation and utilization in the forestry plantation sector. (PP 25/2000 (2(3) 4 m))
Finances Criteria and standard for the tariff of contribution fees for - forest utilisation business licences - the first resource royalties - the reforestation funds and - investment funds for forest conservation expenses (PP 25/2000 (2(3) 4 g))
Criminal enforcement regarding forestry activities that cross districts
Criminal enforcement regarding forestry activities within a districts
Implementation of cross-district conservation of biological natural resources and their ecosystems, encompassing sustainable protection, preservation and utilization in the forestry and plantation sect
Implementation of district conservation of biological natural resources and their ecosystems, encompassing sustainable protection, preservation and utilization in the forestry and plantation sector
Protection and safeguarding of forests in cross-district areas (PP 25/2000 (3(5) 4 q))
Protection and safeguarding of forests in districts
Guidelines for the determination of the tariff of levies on cross-district non-timber forest products (PP 25/2000 (3(5) 4 o))
Implementation of national criteria and standard for the tariff of contribution fees for forest utilisation business licences the first resource royalties the reforestation funds and the investment funds for forest conservation expenses Implementation of guidelines of the tariffs on District timber forest products
Rehabilitation Guidelines for the rehabilitation and reclamation of production forests and protection forests (PP 25/2000 (3(5) 4 i)) The implementation and control over rehabilitation, reclamation, silviculture system, cultivation and processing (PP 25/2000 (3(5) 4 m))
Implementation of rehabilitation and reclamation of production forests and protection forests
CONCLUSIONS AND RECOMMENDATIONS – FORESTRY AND REGIONAL AUTONOMY As can be seen from Table 14, a large part of forestry is to be carried out at the district level. This should be made explicit rather than relying on a process of elimination. The approach to allocating authority for forestry to district governments is unsatisfactory. There should be an actual grant of authority and responsibility for forestry management to the district level of government. It is at the district level that there is likely to be serious gaps in the law and a need for district Perda. This needs further research. There little legal guidance in national legislation as to how the districts are to meet their responsibilities for forestry management. This is exacerbated by the absence of detail in UU 41/99 regarding management units and the mismatch of terminology used in the Forestry Act and Spatial Planning. Currently, for
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example, there is no provision at the national level for joint management between concessionaires, communities and district government. The scope of responsibility allocated to district level government highlights the need for national procedures to secure accountability and guarantee rights to information and public participation. Whilst the content of management plans should be devised at the regional level, there is a need for procedural guarantees at the national level. Forestry management at the local level needs to be incorporated into spatial planning. It should contain procedural rights granted to the community not only to receive information but to actively participate in planning management decision-making. Environmental safeguards should also be imposed at the level of central government. Further material needs to be provided at the national level on forest management systems, to detail the process of forest planning, management, operation, review and reporting. It could contain policies and procedures for the management and conservation of timber, water and soil, flora and fauna and the growing and cultivation of trees. It could also introduce a zoning system for forest management to explain the goals of management for each zone of forest. The role of BAPEDALDAs Many of the weaknesses mentioned above are the internal responsibility of the Ministry of Forestry and regional forestry departments. To what extent should the Ministry and BAPEDALDAs be concerned with the management and control of forests? Under the Forestry Act, it is central government as a whole, which has authority for forestry (art 4(2)). This includes a role for the Minister for the Environment within central government. There is, however, no mention of the role to be played by BAPEDALDAs in forestry matters. This should be clarified. Procedures could be established to impose an obligation to consult or gain concurrence from the relevant BAPEDALDA concerning forestry decisions that concern environmental protection. CONCLUSIONS AND RECOMMENDATIONS - OPERATIONAL ASPECTS OF FORESTRY Definitions The definitions of forestry terms are often inconsistent and buried within the layers of the legal hierarchy. All defined terms in forestry need to be established nationally within one statute and need to be consistent with terms used in other legislation. Planning The legislation does not contain a clear concept of the responsibilities and procedures involved in forestry planning. There is no law that specifically addresses the conversion of forestry into non-forest uses. There is a lack of coherence in planning systems set up in forestry law and spatial planning law. Management plans The national legislation does not go into the detail of forestry management practices. The management plan is the main vehicle to enable environmental considerations to be taken into account in the conduct of the daily forestry operations. The management plan can be a brief document focusing on policy and action to be taken to implement the plan. It may involve dividing a national park into specific areas, which are 230
then divided into management units. Forestry practice usually requires that the terms upon which timber harvesting is to be conducted be written into management plans. The priorities and objectives of management plans will differ according to the different categories of forest depending on whether it is a forest nature reserve, a core zone of a national park, a conservation forest, a protected forest or a production forest. The law does not make these distinctions. For example in relation to a production forest, an act or regulation could state that the objectives of a management plan are to: provide adequate supplies of timber; encourage the use of the regions timber; look after soil resources and water catchments; conserve and use the timber in the zone to the region’s best advantage; and protect against fire and erosion. Clearly not all these objectives would be appropriate for other zones of forest and so the range of objectives for the different forest classifications would need to be identified. A clearer concept of the responsibilities and procedures involved in forestry planning should be established at the national level. Where possible, forestry planning should be integrated with spatial planning. Procedural obligations could be established for the drafting of management plans to ensure coordination with relevant sectors. For example, there could be provisions stating that the environment agency is to have the final say on the plan, the agency preparing the plan is to refer it to the relevant water supply authority, and submissions made by the water supply authority are to be considered. The status of the management plan also needs to be established so that it is clear whether it is legally binding. Licensing A national licensing system that provides for conservation of the forest and sustainable production needs to be introduced.12 This should involve a system of certification for forest products and eco-labelling, which becomes a national standard. More detail is needed to distinguish the different forms of licences that allow forestry activities in protected forest and production forest, particularly in relation to conditions for the protection and conservation of forest. There is a need to develop the legal system regarding licensing at each level of government. Minimal licence conditions need to be set out at the national level with further detail regarding optional conditions. A minimal condition could be that the timeframes for the grant of HPH must take into account growth patterns within a particular forest area. A procedure for the assessment of an application for a HPH needs to be established at the national level together with rights for public participation and an appeal process by third parties. It also needs to be clarified as to what kinds of licences are to be granted by the different levels of government. To be readily accessible this should be within a national regulation on forestry.
12 Ibid
p.60.
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Obligations imposed upon foresters There are a number of vague obligations regarding the protection against or prevention of environmental damage. Additional and more clearly drafted obligations are needed, particularly on the control of forestry activities within conservation forests and protected forests. Obligations imposed upon government Obligations need to be established in relation to management plans. For example, a duty could be imposed upon district government to carry out and give effect to the management plan. 13 This could provide the basis for the provincial government to step in if the obligation is not carried out. The same remedy could be made available to central government, if the provincial government fails to carry out and give effect to a management plan. There is no mechanism to resolve a conflict between the exploitation of timber resources and the protection of the natural environment. A mechanism could be provided by an obligation on the government “to take all practicable steps that it considers necessary or desirable to preserve and enhance the environment”. Thus, where a conflict arises it is clear the government is to give greater weight to the protection of the natural environment. The conduct of AMDALs should ensure that companies who wish to establish wood processing plants have to identify a source of a sustainable supply before the grant of any approval or licence. A HPH should not be granted without an approved AMDAL. The AMDAL should include work plans and if it does not, a HPH should not be approved without an environmental assessment of work plans. These obligations need to be clearly set out at the national level. Oversight There is a lack of detail regarding who is to do what in relation to oversight. Clear lines of responsibility for oversight need to be drawn up to show how the roles of central and regional government are to be coordinated. Administrative Sanctions UU 41/99 lacks administrative sanctions. Administrative sanctions are provided for to some extent in PP 6/99, but only in terms of revocation by the Minister of a licence (HPH). There is nothing on the imposition of sanctions at the regional level. A wider range of administrative sanctions is needed that can be used at the relevant levels of government including the imposition of stop work orders and the imposition of significant fines. A hierarchy of administrative sanctions needs to be set out nationally. By way of example, the following provisions could be turned into a hierarchy of administrative sanctions: (a) failure to submit an annual work plan will oblige government to suspend a HPH; (b) failure to comply with the terms of a work plan will oblige government to issue an order to cease forestry operations and rehabilitate the forest that has been logged in violation of the HPH; (c) harvesting of a number of trees outside the designated harvesting area will lead to an automatic suspension of a HPH;
13 As, for example, under the National Parks and Wildlife Act 1974 (NSW), sections 81(1) and 81(3A).
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(d) failure to comply with an order to replant the trees that have been harvested in excess of the HPH will lead to a cancellation of the HPH and withdrawal of the right to re-apply for a HPH at any time in the future. There is no facility for the imposition of fines for the breach of conditions in a HPH. Fines should be calculated with the goal of denying a logging company any commercial gain from illegal logging. Administrative sanctions should also include the sanction of public exposure of wrongdoing. A link needs to be made between non-compliance with administrative orders issued and criminal sanctions. As discussed in Chapter 21 administrative sanctions and criminal sanctions should fit together in a seamless hierarchy. The comment has been made that Indonesia has failed to secure its forests because it has not followed its own rules. Most forest companies harvest more than the permitted number of trees. Reharvesting is often carried out before the cycle time is due.14 A question that arises is, what is the level of obligation on government to ensure that laws, regulations, licences and commitments are not breached? An important aspect of administrative sanctions is the level of obligation imposed on government in carrying them out. At present, there is no legal obligation upon government to carry out particular enforcement actions in particular circumstances. What can be done to ensure that government meets its responsibilities in this regard? Consideration needs to be given to granting a right to the public to ensure that administrative sanctions are imposed. Mechanisms are needed to ensure that government officials follow their own rules. This could occur by granting the public the right to make government officials accountable through the institution of court proceedings utilising the provisions of a framework environmental law. (See further below in relation to illegal logging.) Criminal Enforcement The obligations that may become the subject of criminal enforcement proceedings are vaguely worded. This in turn weakens their capacity to provide a solid basis for criminal enforcement. In comparison, the prohibitions in the Act are more strongly worded. The drafting of the offence provisions, however, weakens the prohibitions because of the need to prove intention. This provides an unnecessary obstacle in the preparation of evidence (see further below in relation to illegal logging). Public participation There could also be procedures for public participation in management planning including, for example, a provision for public exhibition, a time for the public to make submissions. Provision for independent and third party monitoring of forestry practices should be established nationally in relation to both legal and illegal logging. Community rights to monitor forestry practices need to be established along with the imposition upon government of obligations to act upon monitoring results that indicate a possible breach of legal obligations or an illegality in the conduct of operations. A right could be granted to enable any person to bring proceedings to ensure that this duty is carried out.15
14 Wiryono 15 For
Only Clean Government Can Save the Forests Jakarta Post 7 November 2001. example, under the National Parks and Wildlife Act 1974 (NSW), s.176A.
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OTHER ISSUES CONCERNING FORESTS Forest fires It is well known that companies that wish to clear land for estate crops often plan forest fires. The unsupervised use of fire to clear land for estate crops needs to be prevented through greater control over the conversion of land. This requires a spatial plan to identify land that is suitable for estate crops and the existence of controls over the change of land use. It should not be possible to change a land use on the basis that forest no longer exists on land. If forest has been identified within the spatial plan as suitable for estate crops, approval must first be obtained for land clearance. The development approval should specify the means for land clearance, with the use of fire being prohibited or only granted in exceptional circumstances. If there is a breach of these provisions, there should be a mandatory rehabilitation and re-forestation order. As mentioned in the section on air pollution, there is little provision within PP 41/99 for the control of fires. The key provisions regarding forest fires are found in UU 41/99 regarding Forestry. The provisions are as follows: -
An obligation upon the holder of a licence to protect forest in their work area (art 48(3). A statement that a holder of a licence or a forest use right is responsible for fires that occur in their work area (art 49). A prohibition imposed on every person against starting a forest fire (art 50(3)).
The offence as drafted in the Act requires proof of the mental element of intention or negligence. This imposes a heavy burden on the prosecution as they not only have to identify the person who lit the fire which may require an eye witness but they have to prove that the person intended or was negligent in lighting the fire. In situations where a local person lights a fire on behalf of a company for the purpose of land clearing and conversion, the wrong entity is likely to be prosecuted. The law needs to make it clear that those who arrange for others to perform illegal activities such as lighting fires on their behalf will be held vicariously liable. The provision in article 49, which states that the holder of a licence or a forest use right will be responsible for the occurrence of fires in their work areas is particularly important in this regard. It would seem to negate the need to prove intention or negligence although whether or not this is so needs to be clarified. The applicability of this provision to situations where a company seeks to convert land identified as forest to other uses such as estate crops also needs to be clarified. Since the passing of the Forestry Act, the central government has passed Government Regulation No. 4 of 2001 regarding the Control of Environmental Damage and /or Pollution Connected with Forest and Land Fires (Peraturan Pemerintah No. 4 Tahun 2001 tentang Pengendalian Kerusakan Dan Atau Pencemaran Lingkungan Hidup Yang Berkaitan Dengan Kebakaran Hutan Dan Atau Lahan)(PP 4/2001). A full analysis of PP 4/2001 has not been carried out for the report, however, brief comments follow below. PP 4/2001 contains one prohibition, namely a prohibition imposed upon every person against burning forest fires or land (art 11). A prohibition couched in these terms suffers from the same difficulties mentioned above, namely the need to find the person who actually lit the fire, the need for eye witnesses, proof of 234
intention or negligence and the possibility that the person prosecuted acted on the instruction of another entity that escapes prosecution. It also contains a number of obligations including: -
An obligation on every person to prevent to prevent environmental damage or pollution connected with forest or land fires (art 12).
-
An obligation on every business or activity that is able to give rise to a large and important impact regarding environmental damage or pollution connected with forest or land fires to prevent fires in the location of their business (art 13). This includes an obligation to install infrastructure to prevent fires (art 14) and carry out monitoring (art 15).
-
An obligation upon officials with licensing power to give attention to national forest policy, spatial planning, the opinion of the local community, and the recommendations of government officials (art 16).
-
An obligation on every person to handle forest and land fires in the location of their activities (art 17).
-
An obligation on businesses to handle forest and land fires in the location of their activities (art 18).
-
An obligation on every person to restore forest and land damaged by fire caused by them (art 20).
Administrative sanctions are established by article 48 to the effect that a violation of articles 12, 14, or 15 above may be imposed with an administrative sanction as set out in articles 25 and 27 of Act No. 23 of 1997 regarding Environmental Management (Undang-undang No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup)(UU 23/97). As discussed in Chapter 21, UU 23/97 article 25(1) grants authority to the governor “to carry out administrative sanctions”, to take action to “prevent and end the occurrence of an infringement”, and to deal with the consequences given rise to by an infringement, carry out safeguarding, mitigating, and/or remedial measures at the expense of the party responsible for a business and/or activity” (art 25(1). The authority granted to the governor is capable of being delegated to the mayor by way of a provincial regulation (art 25(2)). UU 23/97 also grants to the Minister the power to revoke a business and/or activity licence (art 27(3)). Notably, whilst UU 23/97 confers authority, it does not confer responsibility or impose any level of obligation in relation to administrative sanctions. It is also non-specific in its terms. To be implemented at the regional level, regional regulations would need to be passed. Criminal offences are established through a provision in article 52 to the effect that any violation of articles 11, 14, 15, 17, or 18 is liable to proceedings under articles 41, 42, 43, 44, 45, 46, or 47 of UU 23/97. Curiously, the article 13 has been left out, despite the fact that this is likely to prove the more effective of the provisions as it imposes an obligation based on the existence of a business in the location of the fire. The comments made in Chapter 22 in relation to the effectiveness of the criminal sanctions as drafted in UU 23/97 apply to forest fires. The complexity of the offences as drafted in UU 23/97 is likely to reduce the effectiveness of the criminal enforcement under PP 4/2001.
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Criminal offence provisions relating to forest fires would be strengthened by the imposition of strict liability so that there is no need to establish intention or negligence (for a discussion of strict liability in criminal offences see Chapter 22). The owner of land should be liable for any fire that occurs on his land unless he can establish certain defences such as (1) the fire was due to natural causes or (2) the fire was started by activities over which they had no control. The right for community groups to initiate criminal proceedings through a court application should be made available under national law to enhance to the prospects of a prosecution. In relation to fire fighting, it has been admitted that working units to handle forest fires, trained officers, or optimal mobilisation of resources or law enforcement have not yet been formed.16 At the national level a Directorate of Forest and Estate Crops Fire Control has been established pursuant to Ministerial Decree No. 002/Kpts-11/2000. However, there is a lack of fire fighting agencies at the regional and district levels. Fire fighting management plans need to be drafted so that there is a plan of operations setting out the procedures to be followed once a fire breaks out. National legislation should set out the procedure for making such plans, which could include public participation provisions. Illegal logging Presidential Instruction No. 5 of 2001 regarding Illegal Logging (Instruksi Presiden No. 5 Tahun 2001 tentang Pemberantasan Penebangan Kayu Illegal (Illegal Logging) Dan Peredaran Hasil Hutan Illegal Di Kawasan Ekosistem Leuser dan Taman Nasional Tanjung Puting) lists the duties of government departments and the type of actions that should be considered. It does not, however, add anything of substance to the law regarding illegal logging. Administrative sanctions Administrative sanctions are available to be imposed upon those entities that are covered by the administration of forestry in that operators are licensed. Administrative powers are hinged on the licensing system and could include the following: An order to cease certain activities Suspension of a licences Revocation of a licence Partial or complete closure of a firm An order to rehabilitate the environment An order to restore the Forestry An environmental audit Recovery of costs Fines. As discussed in Chapter 21, administrative sanctions are not fully developed in UU 23/97. A system of administrative sanctions tailored to the need to eradicate illegal logging needs to be developed. It also needs to be set out which agencies at the provincial and district level are able to impose administrative sanctions. Consideration should be given to imposing obligations upon regional bodies to take action in certain circumstances. Given past difficulties with corruption in the forestry sector and in other levels of government, it is necessary to have an external oversight body. This could be the BAPEDALDA and if so, 16 According
to the head of the subdirectorate of Forest Fires in the Department of Forestry, Soedarmo, as quoted in Kompas article “Pengelolaan Hutan Berantakan” 5 October 2001.
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legal provision needs to be made in this regard in the legal instrument establishing the powers of the BAPEDALDA. Criminal sanctions Situations that involve illegal logging include: (a) the breach of licence conditions and other requirements imposed on those operating in production forests (a) harvesting in conservation forests and other areas in breach of the land use restrictions by licensed operators in breach of their licence (b) harvesting in conservation forests and other areas in breach of the land use restrictions by outside parties. Production forests
Conservation forests
HPH holders Breach of HPH conditions or statutory requirements administrative sanction criminal sanction Breach of land use restrictions criminal sanction administrative sanction
Outside Parties
Breach of land use restrictions criminal sanction
Activities carried out by licensed entities may result in the imposition of administrative or criminal sanctions. The parties who are “outside the system” will need to be covered by the criminal law. These illegal loggers are often local people in need of income who are paid by sawmill operators and timber businessmen. For this reason it needs to be clear that those who arrange for others to perform illegal activities on their behalf will be held vicariously liable. A difficulty in the regard is the component of intention or negligence in the constitution of the offence provisions and for this reason consideration should be given to introducing strict liability offences (for a discussion of strict liability in criminal offences see Chapter 22). Another aspect that needs to be considered is the lack of criminal liability upon those who indirectly benefit from illegal logging, such as contractors or government officials. Additional provisions are needed to deal with those that benefit from illegal operations and which allow the prosecution of government officials who have gained financially, directly or indirectly, from illegal logging, including top government officials. Where the law is adequate to allow for a criminal prosecution, such as where there is illegal logging in a national park such as Tanjung Puting, what more is needed to achieve a criminal prosecution? In Tanjung Puting, the timber baron is known, the exact location of illegal logging infrastructure is mapped, the smaller timber bosses have been identified, and the illegal sawmills are known. Yet no prosecution is made. The lack of political will to prosecute is a hard reality. For this reason the right to the public to instigate criminal prosecution is of crucial importance. Clear user-friendly guidance as to what will amount to illegal logging should be made available to encourage prosecutions both by government and the public. This could be contained in a Presidential Decree, which sets out the circumstances that will be regarded as illegal.
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The role of traditional communities In UU 41/99, the concept of the traditional forest area (hutan adat) is defined as state forest (hutan negara) that exists within a customary law area (wilayah masyarakat hukum adat) (art 1(6)). State forest is forest that exists on land that is not burdened by rights regarding land (hak atas tanah) (art 1(4)). Traditional communities are affected by a provision to the effect that central government is able to determine forest areas for special purposes (tujuan khusus) for interests such as research and development, education and training and religion and culture (art 8) as the management of these areas can be given to certain groups including traditional communities (art 34). However, the other groups include educational organizations, research organizations and social or religious organizations, and these organizations have little in common with traditional communities. Furthermore, the Act states that the special purposes are not able to change the main function of the forest in terms of conservation, protection and production (art 8(3)). The implication of these provisions is, therefore, far from clear. The Act states that the use of traditional forest areas is to be implemented in accordance with its function by related traditional communities (art 37(1)). It also gives rights to traditional communities17 to gather forest products to meet their daily needs and to carry out activities to manage forests based on traditional law that does not conflict with national law (art 67(1)(a)&(b)). This leaves wide open the issue of the protection of traditional communities in their relationship with formal law and in this regard, the Act is fundamentally lacking. Furthermore, it goes on to state that the strengthening or the removal of traditional rights may be carried out by Provincial regulation (art 67(2)). This removes responsibility of the central government in a fundamental area of the protection of human rights and an important aspect of environmental governance. The recently passed Decree of the Minister for Forestry No. 31 of 2001 regarding the Operation of Community Forests (Keputusan Menteri Kehutanan No. 31/Kpts-II/2001 tentang Penyelenggaraan Hutan Kemasyarakatan) provides more detail in relation to community rights. Under the decree, a traditional community is able to apply for a licence for communal forestry activities and to devise a forestry management plan facilitated by the district level government (art 31) The passing of such an important law in the form of a Ministerial Decree is, however, questionable. The rights of traditional communities need to be established in a specific national law that cuts across all sectors. The rights and responsibilities of all parties could to be provided for through the establishment of a mechanism for drafting “community forestry management agreements”. Keputusan Menteri Kehutanan No. 31/Kpts-II/2001 tentang Penyelenggaraan Hutan Kemasyarakatan grants rights in terms of a licence rather than an agreement. Community groups could be empowered to draft enforceable by-laws (subject to approval of formal government) they should be recognised as legal personalities and be able to draft the rules of management. Consideration will need to be given to the relationship between these rules and the formal legal system regarding such aspects as whether they can exclude access of outsiders to resources within the area of management.
17
As long as the community in reality still exists and is acknowledged as existing (sepanjang menurut kenyataannya masih ada dan diakui keberadaannya) (art 67(1)). This proviso raises many issues regarding how to determine whether or not a community should be recognised as having land rights in customary law. These matters need to be dealt with by specific legislation on customary law, which is beyond the scope of this paper.
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Corruption Existing forestry laws and plans are not followed because timber is a valuable commodity and easy to obtain. Bribery and corruption is pervasive from the point of application for a permit to log to the transportation of timber. The influence of “strong men” in business and government is often the reason for a lack of law enforcement. This situation has been exacerbated by the arrangements under regional autonomy, which encourage district government to increase forestry production. It is unlikely that district government will start to take action to support the conservation of forests in these circumstances without external pressure being applied. This again raises the issue of the role that should be played by central government and in particular the Ministry for the Environment. The drafting of forestry or natural resources law needs to be explicit about corruption in environmental management and allow for sanctions to be applied to government officials involved in corruption. Those sanctions should be administrative and criminal. They should coordinate with the newly drafted national anti-corruption laws but if need be, should be specifically tailored to environmental offences. There should be provision for the criminal prosecution of those who benefit from illegal logging or other illegal activities relating to forests, whether they are in the private sector or government. WETLANDS Introduction In 1991 Indonesia ratified the Convention on Wetlands of International Importance Especially as Waterfowl Habitat 1971 pursuant to Presidential Decree No. 48 of 1991 (Keputusan Presiden No. 48 Tahun 1991 Tentang Pengesahan Convention On Wetlands Of International Importance Especially As Waterfowl Habitat). The Ramsar Convention defines wetlands in its broadest meaning as: Areas of marsh, fen, peat land or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which does not exceed six meters.
This definition covers all aspects of coastal areas such as coral reefs, sea grass beds, sand/mudflats, mangrove forests and other tidal and estuarine swamps. It also includes inland areas such as non-tidal swamps (freshwater swamps, peat swamps), rivers and lakes, as well as artificial wetlands such as rice fields, dams, reservoirs, fishponds (freshwater and brackish water) and saltpans.
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The types of wetlands that have been classified in Indonesia are: 18 Coastal Wetlands
Swamps
Watercourses
Lakes, dams and artificial wetlands
Mudflats/sand flats
Swamp forest
Rivers
Lakes
Coral reefs
Peat swamp forest
Floodplains
Paddy-fields
Sea grass beds and seaweeds
Freshwater swamp forest
Estuaries
Brackish-water ponds
Mangrove forest
Swamp woodland
Nipah swamp
Sago swamp
Small-island wetlands
Grass swamps and herbaceous swamps
Salt-pans
A National Wetland Inventory covers 231 important wetland sites.19 In 1994, Indonesia established a cross-sectoral National Wetland Committee (NWC) under Ministry of Forestry Decree No. 226/Kpts-VI/1994 to develop and endorse a national strategy for wetland management. The following sites have been nominated pursuant to the Ramsar Convention:20 Berbak National Park, Jambi Danau Sentarum Wildlife Reserve , West Kalimantan Pulau Rambut Strict Nature Reserve, Northern Jakarta Wasur National Park, Irian Jaya Wetlands within protected areas Control over the development of wetlands falls within the scope of spatial planning law. As set out in article 10 of Government Regulation No. 47 of 1997 regarding National Spatial Planning (Peraturan Pemerintah No. 47 Tahun 1997 tentang Rencana Tata Ruang Wilayah Nasional), wetlands may be found in areas that:
give protection to areas beneath such as peat moss areas and springs and protect their location such as the borders of beaches, the borders of rivers, areas around lakes, and dams and areas around springs.
The most important laws relating to wetlands derive from the system for protected areas, most particularly Act No. 5 concerning the Conservation of Living Resources and Their Ecosystems (Undang-undang No. 5 18 National
Strategy and Action Plan for the Management of Indonesian Wetlands pp.9-16
19 The existing data on wetlands is readily available at the office of Directorate General of Forest Protection and Nature
Conservation (PHPA), under the Ministry for Forestry. A fully computerised Indonesian Wetland Database (WDB) has been developed by the Wetlands International-Indonesia Program (WI-IP) and is operated in Bogor and Jakarta. The Asian Wetland Bureau at the request of the Ministry of Forestry has made an inventory of the existing network of protected wetland areas – including 676,992 h.a. of mangroves, 295,166 h.a. of lakes and almost two million h.a. of other wetlands comprising freshwater and peat swamp forests and marshes - State Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 pp.46-47. 20 According to the National Strategy and Action Plan for the Management of Indonesian Wetlands p.25.
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Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya) (UU 5/90) considered in Chapter 18 on Biodiversity Within Protected Areas. The criteria that are to be applied in the determination of wetlands are also set out in UU 5/90. There is, however, no express reference to wetlands as a form of protected area. There is no use of the term wetland (lahan basah) in UU 5/90 rather the term swamp (rawa) appears in reference to peat moss areas (kawasan bergambut) (art 10). Wetlands are not well represented in the areas that have been gazetted as protected.21 As pointed out in the National Strategy and Action Plan for the Management of Wetlands, in more developed provinces it is apparent that much less than 10 percent remains of many wetland habitats and it is unlikely that this can be compensated for by the protection of similar wetlands in other provinces, as wetlands tend to mature as unique biotypes.22 To fall within the provisions of UU 5/90, a wetland would have to be classified as a nature sanctuary (a nature reserve or a wild life sanctuary) or a nature conservation zone (national park, grand forest or nature tourist park). The National Strategy and Action Plan for the Management of Wetlands identified 15 important wetland areas that have yet to be protected.23 Moreover, there is a lack of clear management plans for protected areas and a lack of resources has been said to leave the management of protected areas in crisis. These problems are said to be particularly severe in relation to wetlands, partly because the waterways provide access to wetlands but also because wetlands offer so many resources for exploitation.24 Difficulties have arisen in securing the boundaries of wetlands. There is a practice of boundaries following rivers or watercourses. As a result, it is often unclear whether rivers are included as part of a designated reserve. Such boundary designation has been said to be contrary to the interests of wetland management, which should incorporate water catchments as a whole. It has been suggested that strategic directions and actions should take account of wetlands as water catchments rather than linear systems to boundary planning.25 Wetlands Outside Protected Areas (a) Water resources management Wetlands outside protected areas are regarded as water resources and are thus the responsibility of the Minister for Settlement and Regional Infrastructure (Kimpraswil) (previously the Minister from Public Works). The main tasks of the dinas at the level of the river basin are stated to include swamps/marshes (rawa).26 Rawa is a type of wetland although of course not all wetlands are necessarily swamps or marshland. The management of wetlands should be included within the concept of Integrated Water Resources Management as discussed in Chapters 7 and 16. Of particular importance are the comments made in Chapter 7 in relation to recognition of environmental values in valuing water quality, as it is the ecological 21 State
Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 p.48.
22 National Strategy and Action Plan for the Management of Wetlands p.57. 23 National Strategy and Action Plan for the Management of Wetlands p.59 24 National Strategy and Action Plan for the Management of Wetlands p.57. 25 ibid p.60. 26 Decree of the Minister of Home Affairs No. 179 of 1996 regarding Guidelines for the Organisation and Working
Arrangements of the Water Resources Management Bureau (Keputusan Menteri Dalam Negeri No. 179 Tahun 1996 Tentang: Pedoman Organisasi Dan Tata Kerja Balai Pengelolaan Sumber Daya Air) (art 3).
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function played by wetlands, which is often of crucial importance to biodiversity. Water resources planning discussed in Chapter 16 is also of fundamental importance in relation to wetlands. As noted, the Draft Act lists subject matter to be contained in a plan as water supply (penyediaan), water allocation (peruntukan), water use (penggunaan), water resources development (pengembangan), water businesses (pengusahaan) and water conservation (konservasi) in a “comprehensive and integrated” manner for one river territory (art 14). Little guidance is given as to what would make a plan “comprehensive and integrated”, for example there is no provision in the planning and management process for an assessment of the hydrological and ecological value of wetlands. As swamps are water resources, the Minister for Settlement and Regional Infrastructure is responsible for swamps including the reclamation of swamps. Regulation of Minister of Public Works regarding the Reclamation of Swamps (Peraturan Menteri Pekerjaan Umum No. 64/PRT/1993 tentang Reklamasi Rawa) applies to reclamation work. This regulation shows a very engineering oriented approach to the management of swamps. Notably reclamation of swamps is defined as increasing the function and use of swamps for the wider benefit of the community (art 1(9)) although it is stated to be based on the principles of general benefit, balance, and conservation (art 2(1)). A protection is built in by a provision to the effect that only swamps that have been determined by the Minister as suitable for reclamation may be reclaimed (art 6(1)) and that this determination must take into account the environment of the swamp (art 6(3)). However, there needs to be more detail in relation to the considerations that must be taken into account in this regard. Reclamation may only be carried out under a licence issued by the governor (art 7). A licence may only be issued based on a technical recommendation from the provincial Department of Public Works (dinas) (art 9(2)). The recommendation must give attention to provincial spatial planning, the plan for reclamation, the environmental impact assessment and the technical plan (art 10(2)). Notably, there is no role for an environmental agency in the licensing process. (b) Spatial planning As set out in article 46 of Government Regulation No. 47 of 1997 regarding National Spatial Planning (Peraturan Pemerintah No. 47 Tahun 1997 tentang Rencana Tata Ruang Wilayah Nasional), farming areas may also be wetlands within spatial planning, particularly rice paddies (art 46). Outside the protected area system, there is a need for legal provisions that emphasise the functional value of wetlands when spatial plans are under consideration. As discussed in Chapter 12 this requires a legal provision listing the factors that are to be taken into consideration in formulating a spatial plan for a district. One such factor should be the ecological value of any wetlands found within the district. Wetlands have been considered in Government Regulation No. 150 of 2000 regarding the Control of Land Damage for the Production of Biomass (Peraturan Pemerintah No. 150 Tahun 2000 tentang Pengendalian Kerusakan Tanah Untuk Produksi Biomassa). In that regulation, it is stated that national soil quality criteria are to be established for the production of biomass for farming, forestry, and plantation forests, including standards for wetlands (art 5). (c) Environmental Impact Assessment Ministerial Decree No. 5 of 2000 regarding the Guidelines for the Composition of AMDAL for Developments in Wetland Areas (KepMen LH No. 5 Tahun 2000 tentang Panduan Penyusunan AMDAL Kegiatan
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Pembangunan di Daerah Lahan Basah) is an AMDAL Guideline on the content of an AMDAL on a development in a wetland area. The guideline has not been reviewed for the purpose of writing the report. WETLANDS SPECIFIC LAW A number of regulations and guidelines that are specific to wetlands will be reviewed below. Government Regulation No. 27 of 1991 regarding Wetlands Peraturan Pemerintah No. 27 Tahun 1991 tentang Lahan Basah Definitions Government Regulation No. 27 of 1991 regarding Wetlands (Peraturan Pemerintah No. 27 of 1991 tentang Lahan Basah) (PP 27/91) contains definitions such as a definition of swamps (rawa), conversion of swamps, reclamation of swamps, networks of reclamation, primary drains, secondary drains, tertiary drains, waste, exploitation and protection of networks of reclamation of swamps, Minister, and regional government. There is not, however, a definition of wetland (lahan basah). This is an important omission, as a wetland is not always a swamp. Swamp is defined in PP 27/91 as (art 1(1)): Land with special physical, chemical, and biological features that is filled with non-flowing water in a naturally continuous manner or as a seasonal consequence of naturally obstructive drainage patterns.
It can be seen that this definitional framework does not comply with the RAMSAR Convention definition mentioned above as, for example, it does not explicitly include artificial wetlands, flowing wetlands, or brackish/salt water wetlands. The other definitions are also not clearly drafted. For example, the “conversion of swamps” is defined as (art 1(2)): the management of swamp as a water resource based on technical, social, and environmental considerations and which aims to guarantee and protect swamp land as a water resource and/or to increase its function and use.
Management is a boarder concept than conversion and encompasses the ecological function played by swamps as well as social considerations. Indeed conversion would be better viewed as just one management option. “Reclamation of swamps” is defined as the effort to “lift the function and use of swamps for the interest of the wider community.” (art 1(3)) This concept appears to relate solely to the social use of swampland rather than ecological value that a wetland may have. Moreover, the difference between conversion and reclamation is not clearly established in the regulation. Within the definition section, there is no acknowledgment of the environmental value of wetlands. It is mentioned in the section on functions, which says that a swamp as a source of water forms a natural resource that has a function and use for life and the life of the community (art 6(1)). The environmental value of wetlands is mentioned in conjunction with the value for use by the community. The regulation therefore fails to acknowledge that there will be occasions when the two values will conflict. Neither is there a procedure for the resolution of such a conflict.
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Management Provision is made for the conservation of swamps, including the making of an inventory, protection, maintenance, and planning (art 8-14). The protection of swamps relies on the determination of swamp conservation areas (wilayah konservasi rawa) (art 11); however, the exact meaning of this term is not defined. It is not clear, for example, whether it is intended to be a link with the provisions of UU 5/90 whereby a wetland may be classified as a nature sanctuary (a nature reserve or a wild life sanctuary) or a nature conservation zone (national park, grand forest or nature tourist park). Provision is made for the reclamation of swamps “to increase their function and use” (art 19(1)). The meaning of this phrase is not clear and may be used as a euphemism for filling in wetlands. It is stated that regional government can implement reclamation (art 19(3)). The composition of the plan for reclamation is to be based on the plan for the development of the river basin (wilayah sungai) (art 20(2)). Thus, a link is made with water resources planning. Notably there is no mention of planning the protection of wetlands outside swamp conservation areas and therefore the procedure and basis to the establishment of these areas is particularly important. Notably also, there is no system for the identification and ranking of the importance of ecological values contained in wetland areas. Licensing PP 27/91 states that reclamation can be carried out by private entities licensed by the Minister for Public Works (art 24). There is no detail regarding the licensing procedure or the matters that are to be taken into account in relation to the assessment of the licence application. This provision needs to be revised to take into account the changes brought by regional autonomy. Prohibitions and obligations upon the public Damage to ecosystems and water resources in swamp conservation areas is prohibited. The disposal of waste in swamp conservation areas is also prohibited (art 15(1)). An obligation is imposed upon every holder of rights to land in a swamp conservation area to protect the function of the area (art 15(2)). These provisions therefore rely on the establishment of swamp conservation areas. Oversight This is to be done by the Minister who is able to appoint officials within regional government to carry out this task (art 34(1)). This provision needs to be revised to take into account the changes brought by regional autonomy. Enforcement A number of criminal provisions are contained in the regulation. These provisions concern activities undertaken without a licence and to damage of ecosystems within swamp conservation areas. The criminal enforcement sections relate to Act No. 11 of 1974 regarding Irrigation (Undang-undang No. 11 Tahun 1974 tentang Pengairan) rather than UU 23/97. CONCLUSIONS AND RECOMMENDATIONS – WETLANDS Scope of existing law There is a lack of adequate law and regulations regarding wetlands at the national level. National laws and regulations on wetlands should reflect the approach taken in RAMSAR Convention. A useful area for further research would be the steps that are needed to implement the RAMSAR Convention. To begin
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with, a comprehensive set of definitions needs to be developed at the national level to apply to the different wetland typologies and the measures that can be introduced for the management of wetlands. Environmental authority At the central level, there is no single Ministry that has responsibility for wetlands. The Ministry of Forestry through the Directorate General of Forest Protection and Nature Conservation (Direktorat Jenderal Perlindungan Hutan dan Pelestarian Alam) (PHPA) is responsible for RAMSAR sites. However, the authority and responsibility for managing swamps is held by central government and implemented by the Minister for Settlement and Regional Infrastructure. There is no specific role for the Minister for the Environment in protecting wetlands. Regional autonomy It is stated that central government authority can be transferred to the regions (art 7(3)); however, a regulation to this effect has not yet been passed. The Minister Settlement and Regional Infrastructure is stated to be responsible for carrying out maintenance and control in swamp conservation zones (art 16(1)). This authority needs to be re-located within regional government. At regional level, consideration needs to be given to the establishment of systems that could share the benefits of wetland ecosystems. The management of wetlands needs to be specifically incorporated into regional planning processes as a consideration to be taken into account in decisions relating to land use. Participatory management needs to be built into planning procedures, especially in protected areas. Partnerships could be developed at the local level to monitor the ecological integrity of wetland areas for a better understanding of management needs and human impacts. Local wetland management committees could be established. This should be done within the framework of river basin management or coastal management. The role of traditional communities There is no mention of the role of traditional communities in managing wetlands areas. Access to wetlands and user rights is not specified within national legislation or regulations. There is no procedure to recognize and enforce local tenure rights in wetland areas. The role of traditional communities in the management of wetlands needs to be established at the national level including procedures to recognize and enforce local tenure rights. Management The protection of wetlands relies on the determination of swamp conservation areas but no detail is provided in PP 27/91 in this regard. This aspect needs to be developed and operationalised. Prohibitions and Obligations Detailed prohibitions and obligations against activities that will adversely affect wetlands need to be drafted. These prohibitions need to be linked to enforcement provisions. Licensing Clarification of what is permissible in the filling up of swamps needs to be established so as to be applicable at the regional level.
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Oversight The oversight provisions needs to be re-drafted to apportion responsibility between national and regional government. Obligations in this regard should to be imposed upon particular institutions within regional at both the provincial and district level. Enforcement The enforcement provisions should refer to national environmental law not sectoral law. Despite the absence of any reference to UU 23/97 in PP 27/91, causing damage to a wetland environment through pollution or damage to vegetation or land could provide the basis for proceedings under that Act. Difficulties regarding obligation to rehabilitate, restore land under that Act also apply to wetlands. THE COAST Introduction The coast is that area of land including the inter-tidal zone that adjoins the sea. Coastal regions bring together the environmental media of land, fresh water and salt water, as well as a number of different environmental problems, such as land and soil degradation, waste management, effluent control and biodiversity protection. Many coastal areas in Indonesia are seriously degraded because of numerous factors such as soil erosion, loss of coastal wetlands from land reclamation, land subsidence and pollution. According to the National Strategy and Action Plan for the Management of Indonesia’s Wetlands, most coastal management in Indonesia is ad hoc and sectoral.27 Environmental law relating to these problems have been mentioned in other parts of the report and in this regard reference can be to the following: Soil erosion Issues related to soil management have been discussed in Chapter 15. Loss of Coastal Wetlands Much of the Indonesian coastline is wetland and therefore comments made in relation to wetlands apply to many coastal regions. Land Subsidence Land subsidence is often caused by over exploitation of groundwater. Thus, the discussion of groundwater management in Chapter 16 is relevant to the management of the coastal environment. River Basin Management In estuarine areas along a coastline, environmental problems frequently arise from an increase in phosphate, nitrate and sediment loading from upstream intensive paddy cultivation. The sections relating to Water Resources Management in Chapter 16 are therefore relevant. Waste disposal Approximately 60 percent of Indonesia’s population lives in coastal areas. The coastal population has an impact on coastal ecosystems and causes problems for managing the ever-increasing quantities of 27 National
Strategy and Action Plan for the Management of Wetlands at p.34.
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sewage, domestic waste, and industrial pollution. The sections relating to fresh water quality in Chapter 7 and waste management in Chapter 10 are therefore relevant. Spatial planning Spatial planning control over the use and development of land in sensitive regions is relevant to coastal management. Therefore controls over the substance of decisions and the establishment of procedures for consent to land clearing, land draining, land filling, and the construction of levees are vitally important. Coastal protection may need to start inland, some distance from the coast. It is for this reason that integrated water resources management discussed in Chapters 7 and 16 is a vital component of coastal management. It may be artificial to divide off coastal aspects of problems that are related to the health of a whole catchment area and the interrelationships between water, land and vegetation within the catchment. Delicately balanced coastal wetlands make up a crucial aspect of the management of the coastal environment and for this reason will be the focus of material in this section. Coastal wetlands consist of: 28
Mangrove forest Mudflats and sand flats Sea grass beds and seaweeds Nipah swamp Small-island wetlands Coral reefs
The comments made regarding wetlands apply to coastal wetlands. The types of wetland that will be considered in this section are mangrove forest and coral reefs. Coastal management within regional autonomy Pursuant to regional autonomy law, central government has a limited role to play in coastal management issues. Importantly, however, under PP 25/2000 central government has authority for the determination of standards for the management of coastal areas and small islands (art 2(3)2.d). The exact implication of this authority is open to interpretation and needs clarification. The demarcation of authority between provincial and district government is also not clear. In relation to the sea, district government has authority for one third of the provincial maritime zone (UU 22/1999 art 10(3)), that is, the area of sea from the inter-tidal zone up to 4 nautical miles from the coast. Thus, the management of the marine aspects of the coast fall within the responsibility of district government. However, there are exceptions, for example, provincial government has authority for preparing support for the expansion of fishing technology and maritime resources (art 3(5)1n) and this conceivably could involve activities in coastal areas. Pursuant to PP 25/2000, provincial government authority may intrude into geographic areas that are otherwise identified as falling within district government authority, both on land and sea. Provincial government authority includes those functions that cut across district government boundaries (art 3(1)) and 28 ibid
at p.34.
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there are likely to be many instances where government functions relating to coastal management will cut across district government boundaries. Provincial government also has authority for ‘planning and control of development in a macro sense” in specified areas, namely, management of regional harbours (art 3(2)). Sectoral responsibility for coastal management At the level of central government, coastal concerns fall under the authority of the Ministry of Agriculture (Fisheries) and the Ministry of Forestry. Similarly, at the level of provincial and district government, coastal management falls under the jurisdiction of the dinas for Forestry and the dinas for Agriculture. In addition, BAPPEDA is responsible for spatial planning in coastal areas. There is a need to coordinate all the various sectors whose activities have an impact on the coastal environment. Jurisdictional responsibility for coral reefs is a case in point. The activities of a number of sectors affect the protection of coral reefs. The Ministry of Forestry is responsible for coral reefs that are protected areas. Marine exploration lies within the responsibility of the Ministry of Maritime Affairs and Fisheries. Marine law enforcement is in the hands of the Navy. This spread of responsibility is exacerbated by the fact that responsibility for management will depend on where the reef is located within the zones of responsibility set out under regional autonomy. If the reef is within 4 miles from the coast, it will be the district government, if it is between 4 and 12 miles from the coast it will be the provincial government and if it falls outside the 12mile limit, it will be the national government. MANGROVE FORESTS In relation to natural habitats, it has been estimated that about 30 percent of Indonesia’s 4.3 million hectare of coastal mangrove forests have been lost since the mid-1960s,29 and that the area of mangroves decreased from 4.2 mill ha in 1982 to 2.7 mill ha in 2000.30 This loss of habitat has resulted in part from the widespread practice of cutting down mangrove areas in coastal areas for human settlement and agricultural activities such as the development of shrimp or fishponds. The loss of mangroves has, however, meant that coastal erosion, salinization and land encroachment has occurred, which in turn has destroyed shrimp enterprises.31 Mangrove forests as protected areas According to Presidential Decree No. 32 of 1990 regarding the Management of Protected Areas (Keputusan Presiden No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung), nature sanctuaries include mangroves32 (art 6(3)). It goes on to state that the protection of mangroves is to preserve mangroves as a form of forest ecosystem and a place for the development of sea organisms as well as a place to protect the beach and stop erosion of the beach from the sea as well as protected the cultivation activities behind the mangrove (art 26). Criteria for mangrove areas are established (art 27). Prohibitions are also imposed to control mangroves as a nature sanctuary so that there is a prohibition against all activities except activities that are connected 29 Asian
Development Bank Country Operational Strategy: Indonesia March 2001 p.15. Strategy and Action Plan for the Management of Wetlands at p.82 31 ibid p.83. 32 In Government Regulation No.68 of 1998 regarding Nature Sanctuaries and Nature Conservation zones (Peraturan Pemerintah No. 68 Tahun 1998 Kawasan Suaka Alam dan Kawasan Pelestarian Alam) declared mangrove forests (kawasan pantai berhutan bakau) as an additional concept to the nature sanctuary and the nature conservation zone but no further detail is provided. 30 National
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with the function of the mangrove and which do not change the landscape, the condition of land use as well as the natural ecosystem (art 37(2)). Mangrove forests outside protected areas Where species are found in mangroves that are identified as an endangered species, the provisions that relate to endangered species as discussed in Chapter 20 will be applicable. It was recommended in the National Strategy and Action Plan for the Management of Wetlands that a green belt should be established along shorelines and estuaries to protect and conserve mangroves. 33 This could be achieved through a spatial planning law requirement that district spatial plans restrict or prohibit development along coastlines. At the same time, the application for development approval in coastal areas as stated in Perda, could require an environmental assessment of the impact on the mangrove forest area and the implications that this may have on the coastline in the region. It is appropriate for fishery law to deal with mangroves given the function that mangroves play as the nursery for fish stocks. In Act No. 9 of 1985 regarding Fisheries (Undang-undang No. 9 Tahun 1985 tentang Perikanan) there is a reference to mangroves in the elucidation of the section regarding the Minister’s powers. This states that the Minister is to make provision for the prevention of pollution and damage, and the rehabilitation of fish resources (art 4(5)). There is no provision in the act itself creating prohibitions against certain behavior such as a prohibition stating that a person must not cut, remove, damage or destroy mangroves on the foreshores. CORAL REEFS Indonesia is a world centre of coral diversity.34 A national survey in 1994 found that 42% of coral reefs in Indonesia are in poor condition and only 6% remain in excellent condition. The reasons for the decline of coral reefs include over fishing, the use of poison and blast fishing, coral mining, sedimentation and pollution. Sedimentation problems arise from poor land use and soil management practices and the legal system in this regard has been discussed in Chapters 14 and 15. Pollution that damages coral reefs is often land-based pollution in the form of water pollution and solid waste. This has been discussed in Chapters 7 and 8. Other activities that damage coral ecosystems are over fishing, the use of poison and blast fishing. An analysis of the laws and regulations has not been possible in the writing of the report and what follows merely serves to indicate some of the issues and some of the relevant laws and regulations. Coral Reefs Within Protected Areas Coral reefs are included as a marine nature sanctuary as set out in Presidential Decree No. 32 of 1990 regarding the Management of Protected Areas (Keputusan Presiden No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung) (art 24). Once declared as a protected area, a coral reef benefits from the controls that apply to protected areas. However, management planning in relation to marine areas is likely to have specific needs. The plan will need to balance the desire to exploit the resources of the reef and the need to conserve their ecological value. The plan should indicate what uses are allowable on the reef, for example mining and drilling. It
33 National 34 State
Strategy and Action Plan for the Management of Indonesia’s Wetlands at p.49. Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 p.38.
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may also contain special zones, which are restricted areas35 and could set up offence provisions and systems of enforcement. Coral Reefs Outside Protected Areas Act No. 9 of 1985 regarding Fisheries (Undang-undang No. 9 Tahun 1985 tentang Perikanan) (UU 9/85) imposes controls over fishery practices that are relevant to the protection of coral reefs such as the prevention of over fishing, the use of poison and blast fishing. There is a reference to coral reefs in the elucidation of the section regarding the Minister’s powers. This states that the Minister is to make provision for the prevention of pollution and damage, and the rehabilitation of fish resources (art 4(5)). UU 9/85 is discussed below in Chapter 19 relating to aquatic biodiversity and there is an overlap in these subjects. Coral reefs are briefly mentioned in the introduction to the elucidation of Government Regulation No. 19 of 1999 regarding the Control of Sea Pollution and Damage (Peraturan Pemerintah Republik Indonesia No. 19 Tahun 1999 tentang Pengendalian Pencemaran Dan/Atau Perusakan Laut) where it is stated that coral reefs are an object of interest for tourism. In addition, it is stated that the criteria of damage to sea resources as determined by the Minister includes damage to coral reefs (elucidation to art 4). In this way protection for coral reefs is brought into the system of management. An important consideration is that it is often local communities that over exploit fishing stocks and use bombs and poisons near coral reefs because of economic need, especially in times of scarcity. To overcome these needs, alternative sources of income are required. Community involvement in the management of fish stocks and coral reef areas could open up channels of dialogue to raise these wider concerns. However, it needs to be borne in mind that those that destroy reefs are often protected by district government authorities to that environmental guarantees need to be built into systems of local control. Decision of the Minister for the Environment No. 4 of 2001 regarding the Criteria for Coral Damage Keputusan Meneg Lingkungan Hidup No. 04 Tahun 2001 tentang Kriteria Baku Kerusakan Terumbu Karang Decree of the Minister for the Environment No. 4 of 2001 regarding the Criteria for Coral Damage (Keputusan Meneg Lingkungan Hidup No. 04 Tahun 2001 tentang Kriteria Baku Kerusakan Terumbu Karang) together with Decision of the Head of BAPEDAL No. 47 of 2001 regarding Guidelines for the Measurement of the Condition of Coral (Keputusan Kepala BAPEDAL No. 47 Tahun 2001 tentang Pedoman Pengukuran Kondisi Terumbu Karang) establishes criteria for damage to coral reefs, and also outlines a management system. These instruments are, however, only guidelines and have no legal force. An obligation is imposed on the governor or mayor to compose a program to control damage to coral reefs according to the guidelines contained in an appendix to the decree (art 6). They are obliged to carry out monitoring and evaluation of the condition of the coral at least every year and provide a report in this regard to the Minister for the Environment, the Minister of Forestry and the Minister for Fisheries as well as other responsible agencies (art 7). The Minister for the Environment is to determine a national policy on coral reefs (art 8). The governor or mayor is to carry out oversight of businesses or activities that may damage coral reefs and where this takes place in protected areas it is to be coordinated with the Department of Forestry and agencies with responsibility for marine affairs and fisheries (art 9). 35 Reference
could be made to the Australian Great Barrier Reef Marine Park Act 1975.
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Reporting obligations are imposed upon every person who suspects or knows of damage being caused to coral (art 10(1)). An obligation is also imposed upon an official who receives a report to verify it (art 11). A further obligation is imposed upon the mayor or governor to take steps to handle the damage if it is verified that damage has occurred (art 12). THE BEACH PRESERVATION PROGRAM Ministerial Decree No. 45/MENLH/11/1996 regarding the Clean Beaches Program KepMen No. 45/MENLH/11/1996 tentang Program Pantai Lestari This Ministerial Decree primarily functions to establish the levels of authority involved in the Clean Beaches Program (Program Pantai Lestari). This national program is designed to control pollution and environmental damage along the coastline (wilayah pantai). It includes a program called Beautiful Harbours (Bandar Indah), which is defined as a program to control pollution and environmental damage in harbours (art 1 (4)). Scope The Decree sets out the aims of the program, which are essentially to control pollution and environmental damage, increase awareness and build communication (art 5). Government Authority The Ministerial Decree outlines the different levels of government authority involved in coastal management, however, it does not indicate the sectoral agencies. At the central level, coordination is to be by the Minister for the Environment but responsibility for activities lies with the BAPEDALDA in the regions (art 5(1)). The Minister of Internal Affairs is to foster the program at the provincial level and it is to be coordinated by the governor, and implemented by the district government. BAPEDALDA/WIL are to build the technical aspects (art 5(2). The governor is able to propose programs to be undertaken at the district level (art 6(1)) The governor is also able to set priorities and objectives for the program (art 7). Each district is also able to propose to the governor how they are to implement the program (art 8(1)). How they are to do this is to be determined by the governor (art 8(2)). Obligations on the public A general obligation is imposed upon every person or person responsible for an enterprise or activity to carry out prevention and tackle pollution and destruction of the environment of the beach zone (art 2). Oversight National oversight in the form of monitoring, evaluation and reporting is to be carried out by BAPEDAL annually (art 9). The governor is also to carry out monitoring, evaluation, and reporting every three months to the Minister for the Environment, the Minister for Internal Affairs and the Head of BAPEDAL (art 10). This is not expressed as an obligation. Neither is it clear exactly what is to be monitored in terms of standards or indicators.
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Ministerial Decree No. 46/MENLH/11/1996 regarding the Formation of a Directing Team and Technical Team for the Clean Beaches Program KepMen No. 46/MENLH/11/1996 tentang Pembentukan Tim Pengarah Dan Tim Teknis Program Pantai Lestari This decree establishes a Directing Team and a Technical Team within central government for the Clean Beaches Program. The teams consist of members of different sectoral agencies. The decree states the sectors that are involved in coastal management. It operates in conjunction with Ministerial Decree No. 47/MENLH/11/1996 regarding the Determination of Priorities within the Provincial Level for the Clean Beaches Program (KepMen No. 47/MENLH/11/1996 tentang Penetapan Prioritas Propinsi Daerah Tingkat 1 Program Pantai Lestari), which determines priority provinces for the program. On the technical team, there are representatives from the following Ministries in addition to representatives from the Ministry for the Environment and BAPEDAL:
Regional Development, Department of the Interior Tourism, Department of Tourism, Post and Telecommunications Boats and Fisheries, Sea Communications, Department of Communications Seas and Beaches, Sea Communications, Department of Communications Exploration and production, Oil and Gas, Department of Mining and Energy. Biological resources, Fisheries, Department of Agriculture Conservation of natural resources, Protection of Forests and Nature Conservation, Department of Forestry Research and Development, Infrastructure Resources, Department of Industry and Commerce Department of Health Technical Directorate, Department of Public Works Sea Fishing Research, Department of Agriculture. Mining, Department of Mining and Energy
CONCLUSIONS AND RECOMMENDATIONS – THE COAST National policy formulation A national policy is required to identify all the relevant sectors and laws that affect the coastal environment. It can be seen from the variety of environmental problems in coastal areas that coastal management is particularly in need of effective coordination mechanisms. At present, there is no coordinated or comprehensive national policy to integrate coastal protection with economic development. The arrangements between central, provincial and district level governments in existing law will need to be revised to take into account the increase independence of district government. There are a large number of overlapping mandates and sectoral responsibilities within central government and regional government, and this aspect needs to be addressed in the national policy. Policy development should logically precede law reform. It should make recommendation regarding legislation at the national and regional level.
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Institutional development As coastlines by their geographic nature traverse districts, consideration should be given to whether provincial government should have the lead role in drafting Perda that are binding on district government in regard to coastal management. Consideration could also be given to the establishment of provincial coordinative authorities authorised with the investigation of coastline problems, to advise on land management and planning issues and to assist the coordination of provincial and district functions. They could be given power to recommend coastal protection zones in which development is subjected to special controls. They could also be involved in preparing binding management plans for particularly sensitive areas. Spatial planning decision-makers could be required to consult with the authority and provisions could be included to the effect that development approval is not to be granted unless the authority has concurred. Mangroves At the national level protection for mangroves is provided as a form of protected area. Stronger provisions are needed within regional spatial planning laws and national as well as regional fishery law for the protection of mangroves. Coral Reefs National laws and regulations specifically on coral reefs are needed. Consideration needs to be given to forming one agency as the lead agency to take care of coral reefs and to coordinate the various sectors whose activities impact upon them. Planning and management systems and procedures tailored to the needs of protecting coral reefs need to be provided for legally. THE SEA Introduction The protection of marine ecosystems is a serious concern in Indonesia. There are at least five major marine ecosystems. Aquatic diversity is particularly striking as Indonesia’s fishes represent 37 percent of the world species total.36 The control of marine pollution, which may be a source of damage of marine ecosystems, has been discussed in Chapter 8 of the report. A full review of the legislation on the protection of marine ecosystems has not been undertaken in the report. Preliminary comments have been made with a view to further research being carried out later. Jurisdictional issues Regional autonomy law divides the authority for management of marine resources. Authority for the management of marine resources is divided up as follows: (a) central government - sea between 12 and 200 nautical miles from the coast and (b) provincial government - sea that lies between 4 and 12 nautical miles from the coast (c) district government – sea beyond the inter-tidal zone up to 4 nautical miles from the coast. Pursuant to article 3 of Act No. 22 of 1999 regarding Regional Government (Undang-undang No. 22 Tahun 1999 tentang Pemerintah Daerah)(UU 22/99), the regions (provincial and district government) have authority for (art 10(2)): 36 State
Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997 p.36.
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exploration, exploitation, conservation and management administrative arrangements spatial planning law enforcement regarding regulations issued by regional government or referred by central government Regional authority is shared between provincial government and district government. Central government authority Under PP 25/2000, central government authority in relation to maritime affairs extends to the determination of policies on and regulation of the exploration, conservation, management and utilization of maritime natural resources in the maritime territories beyond the 12-mile waters, including the local Indonesian waters and the seabed as well as the EEZ and continental shelf (art 2(3)2a). Central government also has responsibility for law enforcement in the maritime territory beyond the 12-mile waters and within the 12-mile waters concerning international affairs (art 2(3)2e). In relation to spatial planning, central government has authority for the regulation of spatial planning beyond the 12-mile waters (art 2(3)(13)c). In relation to the environment, central government has authority for the regulation of environmental management in the use of marine resources beyond the 12-mile waters (art 2(3)18b). In relation to mines and energy, however, PP 25/2000 states that central government has authority for the grant of licenses for the oil and gas core businesses starting from exploration up to the transportation of natural oil and gas through cross-provincial pipelines (art 2(3)3i). Thus, it would seem that central government authority applies to activities within the 12-mile zone. Provincial government authority In relation to maritime affairs, provincial government has authority for the following (art 3(5)2a-e): arrangement and management of waters exploration, exploitation, conservation and management conservation and management of genetic resources in specific locations and fish sanctuaries licensing of fish cultivation and fishing oversight of the exploitation of fish. In relation to mining and energy, it has responsibility for management of mineral, and non-oil and gas resources (art 3(5)3d). In relation to the environment, it has responsibility for environmental management (art 3(5)16b). In the agricultural sector, provincial government has authority for preparing support for the expansion of fishing technology and maritime resources (art 3(5)1n). District government authority In relation to the sea, district government has authority for one third of the provincial maritime zone (UU 22/1999 art 10(3)), that is, the area of sea from the inter-tidal zone up to 4 nautical miles from the coast. Provincial or district government authority? There is a level of uncertainty therefore in regard to the extent of provincial authority in the management of sea resources. As discussed in Chapter Three, provincial government authority may intrude into the geographic areas identified as falling within district government authority, i.e. the zone from the inter-tidal area to 4 miles. This may occur as provincial government authority includes those functions that cut across district government boundaries (art 3(1)). Provincial government has authority for planning and control of development in a macro sense in specified areas, namely, planning and control of regional development,
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management of regional harbours, and spatial planning for the province (art 3(2)). In addition, the province is able to implement authority that has not or is not able to be implemented by district government (art 3(3)). This is to be done with an agreement between the provinces and the district government (art 3(4)). In relation to the delineation of authority for the environment, the provinces have authority for (art 3(5) 16): control of the environment spanning district government; environmental impact assessment for activities that have the potential for negative impact upon the wider community and which are located in more than one district; and oversight of the implementation of conservation of the environment that spans districts. Interpretation of this provision regarding the marine environment is needed. Marine ecosystem protection within protected area management Marine biodiversity is primarily addressed through the system of protected area management as set out in Presidential Decree No. 5 of 1990 regarding the Management of Protected Areas (Keputusan Presiden No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung). As pointed out by the Indonesia Country Report, Indonesia’s marine ecosystems warrant special attention. It is apparent from the laws and regulations relating to protected area management that they are more oriented to terrestrial biodiversity than marine biodiversity.37 Once an area is declared a protected area, it requires a management system to strike a balance between the exploitation and use of the resources of the area and their conservation. Responsibility for drafting and implementing the management plan will differ according to the location of the protected area. This complication to the system of protected areas when applied to marine resources needs to be given further consideration. There is some overlap with national fishing law. Pursuant to Act No. 9 of 1985 regarding Fishing (Undangundang No.9 Tahun 1985 tentang Perikanan), the central government is to determine types of fish that are to be protected and the ocean location of fish sanctuaries based on the features of the fish or the location. In this regard, it is stated that the government is able to establish limits on fishing activities or the cultivation of fish or other activities (art 8). Coordination between protected area law and fishery law needs to be carefully considered. The extent to which this has been achieved is a subject that would benefit from further research. Ecosystem protection outside protected areas Marine ecosystems may be negatively affected by fishery practices and the exploitation of minerals found on the seabed. Fishery practices are considered in Chapter 19 on Biodiversity Protection Outside Protected Areas. As noted in Chapter Eight, Government Regulation No. 19 of 1999 regarding the Control of Sea Pollution (Peraturan Pemerintah No 19 Tahun 1999 tentang Pengendalian Pencemaran dan/atau Perusakan Laut) (PP 19/99) includes the aim of preventing damage to sea resources (art 2). In terms of its overall scheme, PP 19/99 does more than address marine pollution. Sea resources are not defined but to the extent that they include the fish and other sea creatures, the regulation also has relevance for the protection of 37 Protected
areas identified in Government Regulation No.68 of 1998 regarding Nature Sancturaries and Nature Conservation Zones (Peraturan Pemerintah No. 68 Tahun 1998 Kawasan Suaka Alam dan Kawasan Pelestarian Alam) mention marine nature sanctuaries and other sea areas (Kawasan Suaka Alam Laut dan Perairan Lainnya) as additional concepts. There are, however, no provisions that relate directly to protected marine areas.
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biodiversity. In terms of its substantive provisions, however, it makes no contribution to the protection of marine resources. Since the signing of the 1958 Continental Shelf Convention, it has been recognised that seabed exploration for gas, petroleum and other minerals poses dangers to marine ecosystems. The environmental impact of the petroleum and gas sector has not been addressed in the report and is an area that would be suitable for further research. Sea beyond the 12 nautical mile zone The law relating to ecosystem protection beyond the 12 nautical mile zone has not been addressed in the report. There are, however, a number of relevant statutes, regulations, and guidelines including the following: 1. Act No. 5 of 1983 regarding the Exclusive Economic Zone (Undang-undang No. 5 Tahun 1983 tentang Zona Ekonomi Eksklusif Indonesia) 2. Government Regulation No. 15 of 1984 regarding the Management of Natural Resources in the EEZ (Peraturan Pemerintah No. 15 Tahun 1984 tentang Pengelolaan Sumberdaya Alam di Zona Ekonomi Ekslusif) CONCLUSIONS AND RECOMMENDATIONS – THE SEA A review of the legislation for the protection of marine ecosystems has not been undertaken in the report. Some tentative conclusions and recommendations are made as follows: In relation to the preservation of marine ecosystems, a question emerges as to the most appropriate sector to be granted responsibility for their protection - should it be provided for under fishery legislation through a management and licensing system or the Department of Forestry? Clarification is also needed regarding the circumstance that will lead to the province or the district having authority for marine resources. The laws regarding protected areas shows an absence of detail relating to the marine environment such as laws and regulations that establish prohibited operations, permissible uses, and the factors to be taken into consideration in deciding whether to grant permission to use sea resources. Offence provisions are not specifically tailored to the marine environment, for example, there is an absence of any provision that establishes an offence to enter or use zones of a marine protected area other than for permitted purposes or to discharge waste in protected areas. Specific enforcement provisions are also absent. Outside protected areas, arrangements need to be put into place for the sharing of sea resources including common rules, principles and practices.
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CHAPTER 18 – BIODIVERSITY OF FLORA AND FAUNA WITHIN PROTECTED AREAS Introduction Biological diversity (biodiversity) is the existence of variety in life forms: plants, animals, microorganisms and their genetic structures. It is well known that Indonesian biodiversity is one of the richest in the world – there are at least 42 distinct natural terrestrial ecosystems and five marine ecosystems in Indonesia. Ecosystem protection is intrinsic to biodiversity protection. Indonesia almost completely relies on a system of protected areas for the protection of its ecosystems. Indonesia consists of 91 million hectares of land, 317 hectares of sea and 473 hectares of sea (classified as Exclusive Economic Zone). On land there are 303 conservation zones that total approximately 16.2 million hectares.1 The sea includes 31 conservation areas, which amount to approximately 3.2 million hectares. At least three sites have been given world heritage status in Indonesia: Taman Ujung Kulon, Taman Nasional Komodo and Taman Nasional Lorentz. A review of the legal measures for the protection of these sites is beyond the scope of this report but would, however, be an interesting area for further research. The system of protected area management was discussed in Chapter 12 on Spatial Planning and in particular Presidential Decree No. 32 of 1990 regarding the Management of Protected Areas (Keppres No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung)(Keppres 32/90). Although major bio geographical regions have been gazetted, certain habitats such as lowland forests and wetlands are not well represented.2 As a result of deforestation as well as marine and coastal resources degradation, it is estimated that Indonesia has lost 49% of its original wildlife habitat.3 The Indonesia Country Study of 1997 drew attention to the lack of clear management plans in protected areas. As at 1997 only 31 sites had complete management plans. The chief institution is the Directorate General of Forest Protection and Nature Conservation (Direktorat Jenderal Perlindungan Hutan dan Pelestarian Alam) (PHPA) under the Ministry for Forestry. It has been said that a lack of resources within the PHPA has left the management of protected areas in crisis. The reality is that the majority of protected areas have not been surveyed, mapped nor do they have clear boundaries or zoning uses. The foundation law for protected area management is the Act No. 5 of 1990 regarding Biodiversity Conservation (Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya)(UU 5/90), which will be outlined below. In 1999, a review of the legislation applicable to protected area management made a number of recommendations for reform including:4
1 DFIS, 1990; Reppprot, 1990MOF/FAO, 1991 as cited in Sembiring S (ed), Investigation of the Law and Policy of
Managing Conservation Zones in Indonesia (Kajian Hukum dan Kebijakan Pengelolaan Kawasan Konservasi di Indonesia Indonesian Center for Environmental Law Jakarta 1999 p.2. 2 State Ministry of Environment, Indonesia Country Report on the Implementation of Agenda 21 1997 p.48. 3 Asian Development Bank, Country Operational Strategy: Indonesia March 2001 at p.82 citing King P The Bank’s Role in Biological Diversity a Discussion Paper 1998 4 Sembiring S (ed.), Investigation of the Law and Policy of Managing Conservation Zones in Indonesia (Kajian Hukum dan Kebijakan Pengelolaan Kawasan Konservasi di Indonesia Indonesian Center for Environmental Law Jakarta 1999 at pp.xx-xxv.
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(a) Revision of UU 5/90 and subsidiary regulations to: - clearly define the authority of provincial government in protected area management, - strongly promote the participation and partnership of local communities and institutions in management and policy formulation and - standardise terms. (b) Revision of Government Regulation No. 28 of 1985 regarding Protection of Forests (Peraturan Pemerintah No. 28 of 1985 tentang Perlindungan Hutan), Presidential Decree No. 32 regarding the Management of Protected Areas (Keputusan Presiden No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung) and the Joint Ministerial Decree on Mining Operations Inside Protected Forests. (c) Strength the institutional and organisational capacity of provincial level agencies responsible for protected area management. (d) Clarification of alternative dispute resolution techniques to resolve conflict over protected area management including conflict between agencies and conflict between communities. (e) Strict law enforcement. (f) A new law on natural resources management to emphasise the urgency of conservation and outline a vision and mission for sectoral agencies. (g) A TAP MPR or Presidential Decree on natural resources management. (h) Implementation of international instruments to which Indonesia has become a signatory so that they are translated into national policies and regulations for natural resources and protected area management. INTERNATIONAL OBLIGATIONS Act No. 5 of 1994 regarding the ratification the United Nations Convention on Biological Diversity (Undang-undang No.5 Tahun 1994 tentang Pengesahan United Nations Convention on Biological Diversity (Konvensi Perserikatan Bangsa-bangsa Mengenai Keanekaragaman Hayati)) Indonesia has ratified the United Nations Convention on Biological Diversity drafted at the 1992 United Nations Conference on Environment and Development in Rio. This was done through the passing of Act No. 5 of 1994 regarding the ratification the United Nations Convention on Biological Diversity (Undangundang No.5 Tahun 1994 tentang Pengesahan United Nations Convention on Biological Diversity (Konvensi Perserikatan Bangsa-bangsa Mengenai Keanekaragaman Hayati)). The Act annexes the Convention and states that all the provisions of the Convention are to be incorporated into the Act without change. A useful area for research would be the extent to which the terms of the convention have been implemented into domestic law.5
5 For example, the convention imposes an obligation on signatory nations to adopt national strategies, plans or programs to conserve
biological resources (art 6)
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BIODIVERSITY CONSERVATION Act No. 5 of 1990 regarding Biodiversity Conservation Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya Act No. 5 of 1990 regarding Biodiversity Conservation (Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya) was passed prior to the United Nations Convention on Biodiversity. It reflects a traditional approach to the conservation through a reliance on protected areas. Definitions Definitions are provided for terms including biological resources, conservation of biological resources (konservasi sumber daya alam hayati), nature sanctuary (kawasan suaka alam), nature conservation zone (kawasan pelestarian alam), and the various classifications of national parks. Conservation of biological resources is defined as the management of biological resources in accordance with policy to guarantee and maintain balance, and increase the quality of biodiversity. An anthropocentric conception of the conservation of biological resources can be discerned from the aim of conservation of biological resources. The aim is stated to be (art 3): the leaving alone (mengusahkan) of biological resources for the realization of their everlastingness and the balance of the ecosystem, so that they are better able to support increases in the welfare of the community and the standard of human life.
Nature sanctuary (kawasan suaka alam) is defined as follows (art 1(9)): An area on land or in water with special features that primarily functions as an area for the maintenance and biodiversity of plants, animals, and their ecosystems and which also functions as a life support system.
A similar definition is contained within Keppres 32/90 in spatial planning law without reference to the function as a life support system (art 1(10)). The implication of the differences in definition between UU 5/90 and Keppres 32/90 is not clear. Of particular importance is the definition of the nature conservation zone. A difficulty with the use of the word pelestarian is that it encompasses conservation as well as preservation. Whilst conservation may encompass preservation, preservation goes further, as it requires that a natural environment be maintained without change. A separate term is needed for preservation, for example, preservasi, for areas that are to remain in tact with no alteration of their natural features. The nature conservation zone (kawasan pelestarian alam) is defined as (art 1(13)): An area on land or water with special features that has protective functions for life, that maintains biodiversity in plants and animals and that contributes to the long lastingness of biological resources and their ecosystems.
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This definition mixes a description with a statement of the role of conservation zone. It differs from the definition of protected area (kawasan lindung) that is used in spatial planning, which is defined as (UU 24/92 art 1(7)):6 An area determined because of its primary function in the protection of conservation/preservation of the environment including natural resources and the built environment.
Scope of the Act The scope of UU 5/90 is stated to be the protection of life support systems and making durable the biodiversity of plants and animals and their ecosystems. This is to be achieved by the establishment of nature sanctuaries and nature conservation zones. These concepts are elaborated in Government Regulation No. 68 of 1998 regarding Nature Sanctuaries and Nature Conservation Zones (Peraturan Pemerintah No. 68 Tahun 1998 Kawasan Suaka Alam dan Kawasan Pelestarian Alam), discussed below (PP 68/98). (a) Protection of life support systems Life support systems are stated to be the natural processes that support the life of living creatures (art 6.) The protection of life support systems is stated to aim to keep and maintain ecological processes so as to increase the welfare of the community and the standard of human life (art 7). To achieve this aim the government is to determine zones and systems for building protection and to regulate the use of the zones (art 8(1). This is to be the subject of further regulation (art 8(2)). Nothing further is stated in this regard. The government is to control the use and management of land and water within the zone (art 9(2)). This is to be done in accordance with existing law (art 9(3)). (b) Making the biodiversity of plants and animals and their ecosystems durable It is stated that biodiversity of plants and animals and their ecosystems is to be made durable through activities that maintain: biodiversity of plants and animals within their ecosystems and species of plants and animals. To maintain the biodiversity of plants and animals within their ecosystems activities are required for (art 12): (a) the protection of the wholeness of the nature sanctuary and (b) the preservation of original conditions. The maintenance of species of plants and animals is stated as occurring both inside and outside nature sanctuaries. Where activities are to be carried out inside nature sanctuaries they require a permit so that the population of all species of plants and animals is kept in balance (art 13(2). No further detail is given on the permit process. Activities outside the zone are described as activities to protect and expand the prospects that species of plants and animals can avoid the danger of extinction (art 13(3)). No further detail is given in this regard.
6 In Keputusan President No. 32 Tahun 1990 it is defined in the same terms but with the words dan nilai sejarah serta
budaya bangsa guna kepentingan pembangunan berkelanjutan (art 1(1))
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(1) Nature sanctuaries (kawasan suaka alam) Nature sanctuaries consist of nature reserves (kawasan cagar alam) and wild life sanctuaries (kawasan suaka margasatwa). These reserves function as areas to maintain biodiversity and to protect life support systems (art 15). Management The management of nature sanctuaries is stated to be carried out by the government and is to be the subject of further regulation (art 16). Neither the level of government nor the sectoral agency is identified. Permissible activities In nature reserves, activities for research, general knowledge and education are permitted. In wild life sanctuaries, activities for limited tourism are permitted as well as other activities supportive of culture. This is to be the subject of further regulation (art 17). Prohibitions Prohibitions are imposed upon every person against activities that are able to “change the wholeness of a nature sanctuary” (art 19(1)). This does not include activities that contribute to the building of habitats but does include the decrease or loss of functions and the introduction of non-native species (art 19(3)). This prohibition is weakened by the implied exception that activities that do not change the wholeness of the sanctuary are permissible, which requires a judgement as to the impact of an activity on the “wholeness of the nature sanctuary”. (2) Nature conservation zones (kawasan pelestarian alam) The definition of nature conservation zones mentioned above includes National Parks, Grand Forests and Nature Tourism Parks (art 29(1)). Further regulations passed in relation to nature conservation zones include Government Regulation No. 18 of 1994 regarding Tourism in Use Zones in National Parks, Grand Forests and Tourism Forests (Peraturan Pemerintah No. 18 Tahun 1994 tentang Pengusahaan Pariwisata Alam Di Zona Pemanfaatan Taman Nasional, Taman Hutan Raya, Dan Taman Wisata Alam). Nature conservation zones are to protect the system of life support, the maintenance of biodiversity of plants and animals and the long lasting use of natural biological resources (art 30). No distinction is made between each of the parks to explain the reason for the different classifications. Neither is the distinction between nature sanctuaries and nature conservation zones clearly drawn. Management Management is stated to be by the government but, similarly with the nature sanctuary, there is no mention as to which level of government or the sector of government (art 34(1)). Permissible activities in national parks Activities that can be undertaken in national parks are limited to research, science, education, support for culture and tourism as long as they are carried out without a lessening of the main function of the area (art 31). Activities are to be managed through a system of zones: a core zone (zona inti); a use zone (zona pemanfaatan); and other zones in accordance with the need (art 32). Prohibitions Every person is prohibited from carrying out activities “that will change the wholeness of the core zone” in a national park (art 33(1)). This includes the reduction or loss of functions, as well as the introduction of 261
foreign species (art 33(2)). This prohibition is weakened by the requirement for a judgement as to the impact of an activity on the “wholeness”, and by the implied exception that activities that do not change the wholeness of the core zone are permissible. There is also a prohibition against activities in the use zone of a national park not in accordance with the zone of use (art 33(3)). Thus, outside the core zone, prohibitions seem to rely on a system, which has predetermined the permissible uses within national parks. This is not, however, elaborated in UU 5/90.7 General obligations It is stated that every person who has a right to use land or water in a nature conservation zone has an obligation to protect the continuity of the functions of the zone (art 9(1)). There is also an obligation to rehabilitate support systems that have been damaged (art 10.) Enforcement Criminal provisions are divided into intentional and negligent actions. The police and civil investigators have authority to carry out investigations and powers are granted for this purpose (art 39). Intentional actions that are able to change the wholeness of a nature sanctuary (art 19(1) & 33(1)) are liable to a maximum of 10 years imprisonment and a maximum fine of Rp 200 million (art 40(1)). Activities in a use zone that are not in accordance with the zone of use (art 21(1)&(2) and art 33(3)) are liable to a maximum imprisonment of 5 years and maximum fine of Rp 100 million (art 40(2)). If conducted negligently, the same offence is subject to a lesser penalty, namely, a maximum of 1 years imprisonment and fine of Rp 100 million and a maximum of 1 years imprisonment and fine of Rp 50 million respectively (arts 40(2)&(3)). The offence provision regarding nature sanctuaries requires a prosecutor to prove that the activities have changed the wholeness of a nature sanctuary. This is a vague requirement and there is no guidance from the Act as to how it is to be established. It would be preferably to have separate criminal offences applicable to each category of protection in such a way as to indicate actions that are likely to change the wholeness of a: (i) (ii) (iii)
nature reserve; wild life sanctuary; or nature conservation zones – core zone/ use zone.
Public participation The Act does not contain detailed public participation provisions. It states that the responsibility for conserving biodiversity is a responsibility of government and the community (art 4). There is a general provision stating that the government is to empower the community (art 37(1)) and expand the role of the community (art 37(2)). The government is also to increase awareness of conservation issues through education and information (art 37(2)). This is also to be the subject of further regulations.
7 As mentioned in Chapter 17 on the Management of Ecosystems, whilst UU41/99 prohibits any activity in the core
zone or vast forest zones, it is silent regarding activities outside these zones.
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NATURE SANCTUARIES AND NATURE CONSERVATION ZONES Government Regulation No. 68 of 1998 regarding Nature Sanctuaries and Nature Conservation Zones Peraturan Pemerintah No. 68 Tahun 1998 Kawasan Suaka Alam dan Kawasan Pelestarian Alam Government Regulation No. 68 of 1998 regarding Nature Sanctuaries and Nature Conservation Zones (Peraturan Pemerintah No. 68 Tahun 1998 Kawasan Suaka Alam dan Kawasan Pelestarian Alam) (PP 68/98) implements provisions of Act No. 5 of 1990 regarding the Conservation of Biodiversity and their Ecosystems (Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya) (UU 5/90) discussed above. It builds on the concept of the nature sanctuary (kawasan suaka alam dan cagar budaya) contained in the spatial planning regulation, Presidential Decree No. 32 of 1990 regarding the Management of Protected Areas (Keppres No. 32 Tahun 1990 tentang Pengelolaan Kawasan Lindung) discussed in Chapter 12. Definitions PP 68/98 states that the nature sanctuary (kawasan suaka alam) is made up of: 1. Nature reserves (kawasan cagar alam) 2. Wild life sanctuaries (kawasan suaka margasatwa) 3. Tourism forests (kawasan hutan wisata) 4. Areas for the protection of genetic resources (daerah perlindungan plasma nutfah) 5. Wildlife refuges (daerah pengungsian satwa). The first two concepts appear in UU 5/90. The last three concepts are new. The regulation states that in addition there are the following concepts: Marine nature sanctuary and other sea areas (kawasan suaka alam laut dan perairan lainnya) Mangrove forests (kawasan pantai berhutan bakau) National parks, grand forests and tourist parks (taman nasional, taman hutan raya dan taman wisata alam) Cultural preservation areas (kawasan cagar budaya dan ilmu pengetahuan) National parks, grand forests and tourism rarks are terms found in UU 5/90. The marine nature sanctuary and other sea areas and mangrove forests are new to the regulation. In terms of the content of PP 68/98, the approach is essentially the same as in UU 5/90. The regulation is based on the two concepts established in the Act, namely, the nature sanctuary and the nature conservation zone. The lack of followup in relation to these concepts has been mentioned in Chapter 17 on the Management of Ecosystems. 1. Nature sanctuaries Planning The criteria for determining a nature reserve and wildlife sanctuary are set out (art 8 & 9). The regulation states that the determination of a nature reserve or wildlife sanctuary is to be made by the Minister for Forestry and Estate Crops after listening to the views of the governor of the relevant province. A Border Committee (Panitia Tata Batas) is to determine the boundaries of the area and the Minister is to determine
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the area based on the recommendation of the Committee (art 10 (1)-(3)). The only mention of a procedure is a provision stating that the following stages are passed through (art 7): (a) reference as an area (a) structuring of its borders (b) determination as an area. Management It is stated that management is to be based on a plan of management (art 12), which in turn is to be based on an examination of aspects related to the ecology, technology, economy and culture (art 14(1). The plan is to contain management aims and to outline activities for the protection, maintenance and use of the area (art 14(2)). Further detail is to be the subject of a Ministerial Decree. For the writing of the report, it has not been ascertained whether a decree has been passed. Management is to be carried out to maintain the extent of biodiversity of species of plants and animals in the area (art 15) through protecting and securing the area, the making of an inventory, research and development (art 16). Maintenance also includes building the habitat and population of wild animals in the area (art 17). Permissible Uses Use is limited to certain activities such as research and development, science and education (arts 20-29). Prohibitions The regulation anticipates the imposition of prohibitions against activities that are able to alter the wholeness of an area (art 19(1)). It then goes on to indicate what would be regarded as altering the wholeness of the area (art 19(2)). This includes hunting, the introduction of non-native species, cutting down plants and digging holes that disturb the plants and animals. There is, however, no specific provision stating that these activities are actually prohibited and constitute a criminal offence. 2. Nature conservation zones The concept of the nature conservation zone builds on the system of zones that is established in UU 5/90. In addition to the core zone and use zone, a third zone is established, that of the vast forest or jungle (zona rimba) (art 30(2)). The criteria for determining national parks and their core zones use zones and vast forest zones are listed (art 31). Management Management is to maintain the extent of biodiversity of species of plants and animals in the area (art 37). No level of government authority is established as being responsible for the management of nature conservation zones (art 35). There is a general provision that states that the management provisions that apply to nature sanctuaries also apply to nature conservation zones (art 36). In relation to National Parks, it is stated that management is to accord with a zoning system (art 38) and activities for each zone are set out. For the core zone, management takes the form of protection and security, inventory making, research and expansion through management support (art 39). In the use zone, management takes the same form, with an allowance for the expansion of nature tourism (art 40). In the vast forest/jungle zone there is an additional form of maintenance: that of building the habitat and population of wild animals (art 41). These provisions are to be the subject of further attention through the
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issuing of a Ministerial Decree (art 42). For the writing of the report, it has not been ascertained whether a decree has been passed. In grand forests, maintenance takes the same form as the core zone in a national park with the addition of fostering plants and animals (art 43(1)). This is also to be the subject of further attention through the issuing of a Ministerial Decree (art 43(3)). In tourist parks, maintenance is to be implemented through activities of protection and security, inventory making, research and expansion that supports the conservation of potency (menunjang pelestarian potensi) and the fostering of the habitat and population of wild animals (art 45(1)). This is to be the subject of a Ministerial Decree (art 45(3)). Permissible Uses Certain limited activities are allowed within the various zones. For example, in national parks, use is to accord with the zone of management (art 48). Within core zones, use is to fulfil the needs of research and development, science, education and/or cultural support activities. These activities are the same as in relation to nature sanctuaries (art 49). Use zones allow use for the needs of tourism and recreation, research and development, education and/or cultural support activities (art 50(1)). In the vast forest/jungle zones, use activities can include research and development, science, education, cultural support activities and limited tourism (art 51(1)). Prohibitions Prohibitions are not actually established within the regulation; rather it anticipates that maintenance is to be implemented through the imposition of prohibitions against activities that are able to change the function of the area (art 44(1). This is followed by a list of the activities that have this effect, namely (art 44(2)): (a) damage the special potential as a form of ecosystem (b) damage the beauty and natural features (c) reduce the extent of the area that has been determined (d) activities that are not in accordance with the plan of management and/or plan of use (pengusahaan) that has been agreed by authorised officials. CONCLUSIONS AND RECOMMENDATIONS Regional autonomy UU 22/99 and PP 25/2000 have superseded the UU 5/90, and therefore where management of nature sanctuaries and nature conservation zones is stated to be carried out by “the government“ further consideration needs to be given as to the appropriate level of government. In this regard, reference may be made to Table 14: Authority for forestry at the central, provincial and district levels - pursuant to PP 25/2000 and Keppres 62/98 in Chapter 17, which sets out the authority for each level of government under PP 25/2000. Overlapping authority between central government, provincial and district level government needs to be clarified particularly regarding management responsibilities. For example, authority could be granted to a central government agency to cooperate with the regions in formulating biodiversity conservation plans based on an assessment of habitats and an evaluation of the extent to which the declaration of protected areas might assist such a program, the wildlife population of a certain area and Indonesia’s international obligations in the conservation of wildlife.
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The relevant Minister is said to be the Minister for Forestry and Estate Crops, however, in relation to coastal or marine areas, the Minister for Agriculture may be the more appropriate Minister, being the Minister responsible for fisheries. A question arises as to whether there should be an increased role for the Ministry of the Environment at the central government level in regard to biodiversity protection within protected areas. Scope There is an absence of specific provisions relating to protected areas in marine nature sanctuaries, mangrove forests and cultural preservation zones, they are merely mentioned as being additional concepts. Definitions The allocation of the different protective types of protective areas is confusing and does not appear to have a clear logical basis. The purpose of each classification is not set out. Neither is there any indication as to what factors should be considered in assessing a proposal for the establishment of a nature sanctuary or nature conservation zone. If the basic purpose of each form of nature reserve were to be stated, then the Act or a regulation could state that the decision-maker is to have regard to the purpose of the reservation. The definitions need to be standardised and refined. An Act should be the primary source of definitions to make them readily accessible. The distinction between protection and preservation needs to be clarified. Key distinctions that need to be addressed are the distinction between national parks, nature reserves, recreational areas and wilderness. They could be delineated as follows: National Parks: Spacious areas containing unique or outstanding scenery, or natural phenomenon and which are dedicated to public enjoyment and/or education. Nature Reserves Areas of special scientific interest containing wildlife or natural environments, dedicated to the care, propagation, preservation, and conservation of wildlife and natural environments. Recreational Areas Areas for recreational opportunities in a natural setting. Wilderness Areas that because of their pristine state and importance for science, which should be preserved in tact without human interference Obligations The expression of obligations in UU 5/90 uses terminology that is vague and lacking in detail. The obligations would therefore be difficult to enforce. Additional obligations are needed, such as, an obligation to comply with a management plan. Prohibitions The application of prohibitions requires an exercise of judgement regarding the level of impact on the “wholeness” of the nature sanctuary. Such evaluations should be avoided. A complete range of prohibitions needs to be finalised.
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Management Very little is said in the UU 5/90 or PP 68/98 about the management of nature sanctuaries or nature conservation zones. Effective protection will be reliant on the effectiveness of management plans. There is, however, little indication, for example, of how management plans are incorporated into spatial management law. Neither is there an indication as to the procedure to be followed in the drafting of the plans, the factors to be taken into consideration, and the activities that are regulated by a management plan. The adequacy of the provisions for management plans needs to be reviewed, including their appropriateness, the process of their preparation and dissemination.8 Links need to be established between the determination of protected areas and river basin management. There should be provision for public participation in planning and plans should be able to contain formal rules and operate in a similar way to regulations. Community participation Community empowerment in protected area management has yet to be proceduralised. As with other areas of environmental management, there are general statements saying that the community should be involved, that both the government and people share responsibility for biodiversity, and that the government shall help raise conservation awareness of the people.9 A new management system could be balanced by the devolution of authority to local communities and indigenous peoples within a national framework.
8 National
Strategy and Action Plan for the Management of Wetlands p.58. Sembiring S (ed), Investigation of the Law and Policy of Managing Conservation Zones in Indonesia (Kajian Hukum dan Kebijakan Pengelolaan Kawasan Konservasi di Indonesia Indonesian Center for Environmental Law Jakarta 1999 at p.xxii. 9
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CHAPTER 19 - BIODIVERSITY OF FLORA AND FAUNA OUTSIDE PROTECTED AREAS Introduction The traditional focus of biodiversity law has been to seek to conserve nature through the establishment of protected areas, as discussed in Chapter 18. Important animal and plant habitats will, however, often be found outside protected areas, on state owned or private land and in waters that have not been granted conservation status. In Indonesia, biodiversity is found in a wide range of ‘domesticated organisms’, and in managed agro ecosystems. Traditional practices of agriculture, forestry and fisheries management that have developed and conserved genetic biodiversity1 are being replaced by commercial methods of production that do not recognise the benefits of diversity. Threats to biodiversity also arise from changes in land use.2 To fully reflect the principles of the United Nations Convention on Biological Diversity, the traditional approach needs to be supplemented by laws that apply outside protected areas. Indeed, it has been acknowledged that a variety of means of conserving biodiversity outside protected areas need to be developed in Indonesia.3 TERRESTRIAL BIODIVERSITY Spatial planning law Spatial planning law and law concerning land use is particularly relevant to maintaining biodiversity and needs to incorporate mechanisms to protect biodiversity in decision-making regarding change of land use, subdivision and developments that are likely to have an impact on biodiversity. The extent to which this is achievable under spatial planning laws and regulations is an area for further research. Agriculture law It has not been possible to undertake a full review of agricultural law and its effectiveness in preserving biodiversity. There will be a brief outline of Act No. 12 of 1992 regarding Systems of Cultivation (Undangundang No. 12 Tahun 1992 Tentang Sistem Budidaya Tanaman) (UU 12/92), which makes provision for the protection of biodiversity in relation to plants used in agricultural production. There are a number of other laws and guidelines regarding agricultural practices, which have a bearing on biodiversity of seeds and farm produce such as: 1. Act No. 29 of 2000 regarding the Protection of Plant Variety (Undang-undang No. 29 Tahun 2000 tentang Perlindungan Varietas Tanaman) 2. Joint Decision of the Minister for Agriculture, Minister of Forestry and Estate Crops, Minister of Health and Minister of State for Food and Horticulture No. 998.1/Kpts/OT.201/9/1999 790.a/Kpts-IX/1999 1145A/MENKES/SKB/IX/1999 015A/NMenegPHOR/09/1999 regarding Biological Security and Security of the Results of Genetic Engineering of Agricultural Food Products (Keputusan Bersama Menteri Pertanian, Menteri Kehutanan Dan Perkebunan, Menteri Kesehatan, Dan Menteri Negara Pangan Dan Hortikultura No. 998.1/Kpts/OT.201/9/1999 790.a/Kpts-IX/1999 1145A/MENKES/SKB/IX/1999 1 State
Ministry of Environment Indonesia Country Report on the Implementation of Agenda 21 1997 p.37 p.37 3 ibid p.39 2 ibid
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015A/NMenegPHOR/09/1999 tentang Keamanan Hayati Dan Keamanan Pangan Produk Pertanian Hasil Rekayasa Genetik). Act No. 12 of 1992 regarding Systems of Cultivation Undang-undang No. 12 Tahun 1992 Tentang Sistem Budidaya Tanaman Act No. 12 of 1992 regarding Systems of Cultivation (Undang-undang No. 12 Tahun 1992 Tentang Sistem Budidaya Tanaman) states that farmers are to freely choose types of plants used in farming (art 6). This is expressed as a principle and is to be the subject of further regulation. An opening regarding the free choice of types of plants is therefore provided, which if developed further, could seek to sustain the variety of choice in the face of commercial pressures for greater uniformity. However, to do so there would need to be laws relating to the producers and importers of agricultural seeds and plants, as well as the buyers of agricultural produce. Obligations upon citizens In relation to seeds, the Act emphasises quality rather than variety. UU 12/92 states that achieving seed quality is to be through breeding and/or the introduction of seeds from outside Indonesia (art 8). Control over a lessening of variety could be introduced through a provision stating that every change of species of plant for a unit of agricultural production that is overseen by the government must receive the agreement of the government (art 46(2)). This is to be the subject of further regulation and would need to be developed with the encouragement of biodiversity as a specific goal. Obligations upon government A search for and compilation of genetic resources is to be carried out by government (art 9(2)). It may also be carried out by individuals or legal entities under licence (art 9(3)). It is stated that the government is to preserve genetic resources in cooperation with the community (art 9(4)). Details in this regard are to be by way of further regulation (art 9(5)). Similar provisions are made in relation to introduction of species from outside Indonesia (art 10). These provisions need to be developed further. A certification, standardisation and labelling process has been established (art 13-14). The government is to carry out oversight in this regard (art 15). It is able to prohibit the procurement, circulation and planting of certain seeds that inflict damage upon the community, cultivation, natural resources or the environment (art 16). The meaning of “damage” is not, however, defined and so it is not clear whether a reduction of biodiversity or a loss of a particular strain of plant would be encompassed. Likewise, the entry and exit of plants and seeds is the subject of a licensing system, (art 17) but there is nothing imposing upon government a requirement to consider agricultural biodiversity in decision-making. Prohibitions A prohibition has been introduced against the release of a plant variety that has been bred or introduced before being circulated by the Government (art 12(2)). This is to be the subject of further regulation (art 12(3)). Sanctions Criminal sanctions have been introduced in relation to intentional and negligent activities such as: seeking and collecting genetic resources that are not licensed (art 60(1)a. & 60(2)a.);
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circulation or introduction of the results of breeding not released by the government (art 60(1)b.& 60(2)b.)); the circulation of seeds not in accordance with labelling (art 60(1)c. & art 60(2)c); and entry or exit of seeds without a licence (art 60(1)d. & art 60(2)d.).
The effect of these sanctions in maintaining biodiversity will depend on whether or not licensing decisions and decisions regarding the circulation or introduction of seeds and plants reflect biodiversity considerations. AQUATIC BIODIVERSITY Pollution Threats to aquatic biodiversity frequently derive from land-based activities that pollute the aquatic marine and freshwater environment such as pollution from mining, sediment from deforestation, and waste from industry. Land-based sources of marine pollution have been discussed in other parts of the report, namely Chapters Seven and Eight. Maritime law There are a number of maritime laws that will not be reviewed for the report but which potentially have a bearing on aquatic biodiversity outside protected areas such as: 1. Act No. 6 of 1996 regarding Indonesian Waters (Undang-undang No. 6 Tahun 1996 tentang Perairan Indonesia) 2. Act No. 5 of 1983 regarding the Exclusive Economic Zone (Undang-undang No. 5 Tahun 1983 tentang Zona Ekonomi Eksklusif Indonesia) 3. Government Regulation No. 15 of 1984 regarding the Management of Natural Resources in the EEZ (Peraturan Pemerintah No. 15 Tahun 1984 tentang Pengelolaan Sumberdaya Alam di Zona Ekonomi Ekslusif) Fisheries Threats to fresh water and marine aquatic biodiversity are caused by fishery practices, such as over fishing and the placement of fishing lines. Threats may also arise from the introduction of fish species from outside Indonesia. Fishery practices are controlled by fishery law, which is, primarily concerned with the commercial exploitation and development of fisheries and other marine resources. Guidelines in this regard have been passed and include: -
Letter of Decision of the Minister of Agriculture No. 265/Kpts/LB.730/5/1986 regarding Quarantine of the Entrance of Fish to Indonesia (Surat Keputusan Menteri Pertanian No. 265/Kpts/LB.730/5/1986 tentang Syarat-Syarat Karantina Untuk Pemasukan Ikan Hidup Ke Dalam Wilayah Negara Republik Indonesia) and
-
Letter of Decision of the Minister of Agriculture No. 473a. of 1985 regarding the Total Allowable Change in the Exclusive Economic Zone (Surat Keputusan Menteri Pertanian No.473a. Tahun 1985 tentang Penetapan Jumlah Tangkapan Yang Diperbolehkan Di Zone Ekonomi Eksklusif Indonesia).
Time has not permitted the consideration of these regulations.
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Act No. 9 of 1985 regarding Fisheries Undang-undang No. 9 of 1985 tentang Perikanan This Act arranges fishing regions, the management of fishing resources, the exploitation of fishing, the expansion of fishing and the arrangement of tasks relating to assistance, oversight and control of fishing. It establishes the concept of the fishing region, which includes the ocean, rivers, lakes, dams, swamps, other bodies of water and the EEZ (art 2). It does not contain a definition of fish but rather refers to fish resources, which are defined as all species of fish including other water biota. Government obligation The Minister is given wide-ranging responsibility for passing regulations regarding (art 4):
Tools for catching fish Technical conditions for fishing that must be fulfilled by fishing vessels Total catch numbers and types and size of fish that are not allowed to be caught Regions, routes and times or seasons for fishing Prevention of pollution and destruction, rehabilitation and increasing the level of fishing resources and their environment The spread of new fish The cultivation of fish and their protection Prevention of fish diseases Other matters that are needed to achieve the goals of management of fishing resources.
A review of these Ministerial Decrees has not been possible for the report; however, it would be an interesting area of research to review their effectiveness in relation to maintaining biodiversity. Provisions such as an obligation upon the Minister to have regard to ensuring proper conservation and management measures so that living resources are not endangered by over-exploitation are relevant. Obligations upon fishermen An obligation is imposed upon every person who carries out fishing activities to own a fishing licence (art 10(1)). Fishermen who fish for a livelihood are not, however, required to obtain a licence (art 10(2)). The implementation of this provision is to be by way of further regulation (art 10(3)) and in this regard a Letter of Decision of the Minister for Agriculture No. 815/Kpts/IK.120/11/90 regarding the Licensing of Fisheries has been passed (Surat Keputusan Menteri Pertanian No. 815/Kpts/IK.120/11/90 tentang Perizinan Usaha Perikanan). This regulation has not been reviewed for the purpose of the report. It is noted, however, that it is particularly important that there be provision for the imposition of conditions in a licence about the classes of fish that may be taken, and the quantity, size limits, catch rates, and methods or equipment. Prohibitions A number of prohibitions have been introduced in UU 9/85 in a form that requires regulations to be issued. The extent to which those regulations exist is a matter for further research. A prohibition is established against every person using things or tools that are “able to endanger the protection of the environment of fishing resources.” (art 6(1)) The elucidation states that explosives, poison, electricity and others things can destroy the environment and affect fishing and fish farmers, and for this reason the use of such tools is prohibited. The Act does not, however, impose a prohibition against the use of listed items which to be set out in further regulation (art 6(2)). 271
A prohibition is established against actions that lead to pollution or the destruction of fishing resources or the marine environment (art 7(1)). This is to be the subject of further regulation (art 7(2)). From these provisions, it would seem that the Minister has the power to issue prohibitions such as the taking of certain species of fish from specified areas, fix size limits and prohibit certain methods of fishing or equipment. The Minister is also to determine prohibitions on the removal and introduction of types of fish into Indonesia (art 20). This provision would seem to relate to both the introduction of exotic species and the removal of endangered species. Oversight There is a general provision stating that to guarantee efficient and effective management of fishery resources, oversight and control of the implementation of the provisions relating to fisheries is to be carried out (art 23(1)). There is no allocation of responsibility for oversight to a particular level of government or an authority within government. Administrative Sanctions The Act does not provide for the imposition of administrative sanctions such as the cancellation of a licence if a licence holder is found guilty of contravening the Act or licence conditions. Neither does it provide for suspension on the reasonable suspicion of a contravention of the Act or licence conditions. Criminal Sanctions Criminal sanctions may be imposed for the violation of articles 6(1) and 7(1) with a punishment of up to 10 years and/or a maximum fine of Rp 100 million (art 24). Fishing without a licence is liable for imprisonment for up to 5 years or a maximum fine of Rp 50 million if a motorboat of a size of 30 tons gross or more is used. The penalty is reduced to imprisonment for up to 2.5 years or a fine of up to Rp 25 million if the activity uses a motor boat less than 30 tons gross (art 25). The officers who are to investigate possible violations are the officers set out in article 14(1) of UU No. 5 Tahun 1983 regarding the EEZ namely the Navy (Perwira Tentara Nasional Indonesia Angkatan Laut yang ditunjuk oleh Panglima Angkatan Bersenjata Republik Indonesia) (art 31(1)). Civil investigating officers (PPNS) that are tasked in the field of fisheries can be authorised to carry out investigations regarding the violation of provisions in the Act (art 31(2)). If so, they have authority to (art 31(3)): Receive reports or accusations from someone regarding the occurrence of a violation; Summons and investigate the suspect; Search fishing boats, transportation facilities and storage places; Seize fish, tools and documents that have been used in the action that led to the violation. THE ROLE OF LOCAL COMMUNITIES To preserve biodiversity outside protected areas, a process is needed to encourage local communities in conservation. This is an educative process as well as a legal process. Laws may assist by enabling landowners or holders of land use rights to enter into agreements for the protection of critical habitats located on their property or in their locality. This could, for instance, involve communities in drawing up lists of species and habitats that are under threat in their locality and determining which habitats are critical. Criteria for inclusion in such a list need to be devised. An example of criteria could be 272
flora or fauna in a demonstrable state of decline which likely to result in extinction, or significantly prone to future threats which is likely to result in extinction. 4
Links could to be made with spatial planning, to allow for the making of orders by the governor or mayor for the protection of critical habitats.5 CONCLUSIONS AND RECOMMENDATIONS A full review of this subject has not been possible for the report. The following conclusions and recommendations are tentative only. Terrestrial biodiversity Further research should be carried out regarding the extent to which spatial planning laws and regulations are capable of protecting biodiversity outside protected areas, particularly spatial planning at the district level. UU 12/92 and other applicable laws and regulations should be reviewed for including provisions to ensure that the variety of choice available to farmers is not reduced by the growing commercialisation of agriculture. Aquatic biodiversity A framework has been provided in UU 9/85 to protect biodiversity in fish stocks. Redrafting is required to accommodate regional autonomy. As fishing activity occurs within waters under the control of each level of government - district, provincial, and national government - law making at each level of government is also required to protect biodiversity. There is also a need for a procedure to ensure cooperation between the districts and regions with respect to the management of fisheries. UU 9/85 should contain a statement of principle to guide the management of fishery resources. Oversight provisions are also lacking. They need to be made more specific, particularly to account for the changed authority that has resulted from regional autonomy. Administrative sanctions also need to be developed. Community involvement The involvement of the community in protecting biodiversity in its immediate vicinity is fundamental to protecting both terrestrial and aquatic biodiversity. Procedural mechanisms need to be established to allow this to occur, ideally at the national level. Notably, there is no provision for fishing communities or fish farmers to participate in decision-making relating to the management of fisheries. Whilst there is reference to empowerment of fishermen and farmers, it is not related to local institutions.
4 This
example is taken from the Conservation of Forests and Land Act 1987 (Vic) in Australia (section 11(1)). of Forests and Land Act 1987 (Vic) in Australia (sections 26, 35 and 36).
5 Conservation
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CHAPTER 20 – THE PROTECTION OF ENDANGERED SPECIES Introduction In addition to the protection of ecosystems and biodiversity, systems are in place for the protection of individual species that have been allocated a status as being endangered. As at 1997 Indonesia had listed 538 wildlife species including 15 marine species as rare or endangered. There remain unclassified many rare or uncommon species of fauna and flora. The discovery of new species is a regular occurrence and undescribed species have no protection. There are also domesticated animals in Indonesia that are endangered that are not protected. Where endangered species are found in protected areas they will have a higher level of protection, as indicated in the table below. Outside of protected areas, other systems are needed for the protection of endangered species.
Listed as a protected endangered species Not listed as a protected endangered species but under threat
Protected Areas Best protection
Non-Protected Areas Some protection
Some protection
Little or no protection
The species by species approach has been criticised as not being in the interest of proper ecological management.1 Indeed, the protection of a species should commence with protection of its habitat. It is, however, not sufficient to concentrate on habitat loss, as special additional measures are needed where a species is endangered. Apart from habitat loss, a species may become endangered through overexploitation for trade, recreational pursuits, hunting or production of products from plants or the carcasses of animals. Species protection therefore also needs to take into account the activities and economic needs of the local population. PROTECTED SPECIES Act No. 5 of 1990 regarding Biodiversity Conservation Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya Act No. 5 of 1990 regarding Biodiversity Conservation (Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya) (UU 5/90) was discussed in Chapter 18 on the Protection of Biodiversity in Protected Areas. It also applies to the protection of endangered species. Currently, there is no separate Act regarding endangered species as such, the provisions are primarily found within the Act No. 5 of 1990 regarding Biodiversity Conservation (Undang-undang No. 5 Tahun 1990 tentang Konservasi Sumberdaya Alam Hayati dan Ekosistemnya). This Act introduces a distinction 1 National
Strategy and Action Plan for the Management of Wetlands p.55
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between protected and non-protected species (art 20(1)). Those that are protected are those “in danger of extinction or rare species” (art 20(2)). This is to be the subject of further regulation (art 20(2)). A number of government regulations have been passed, including: 1. Government Regulation No. 13 of 1994 regarding Hunting (Peraturan Pemerintah No. 13 Tahun 1994 tentang Perburuan Satwa Buru) 2. Government Regulation No. 7 of 1999 regarding the Preservation of Flora and Fauna (Peraturan Pemerintah No. 7 Tahun 1999 tentang Pengawetan Jenis Tumbuhan dan Satwa) 3. Government Regulation No. 8 of 1999 regarding the Exploitation of Flora and Wild Animals (Peraturan Pemerintah No. 8 Tahun 1999 tentang Pemanfaatan Jenis Tumbuhan dan Satwa Liar) It has not been possible to undertake a review of the supporting regulations mentioned above. The following comments in relation to UU 5/90 may need to be adjusted after a full review of endangered species legislation. Definitions and concepts There is no definition of “in danger of extinction” in the Act, nor is there a definition of “rare”. Within the definition of protected plant and protected animal, there is nothing specific to the needs of endangered species protection such as the inclusion in of carcasses, skins, and eggs in the definition of protected animal. Definitions of population and community are also absent from the statute. A population could be defined as a group of organisms, all of the same species that occupy a particular area and an ecological community could be defined as an assemblage of species occupying a particular area.2 Another aspect that is missing is the concept of a critical habitat. For example, a critical habitat could be defined as a habitat that is critical to the survival of a population or an ecological community. Once identified as a critical habitat, species-specific management plans could to be formulated. For example, regarding wetlands, a population assessment of species believed to be threatened, or declining could become the basis of the protection of a wetland. A role for the local community in developing plans could be provided for nationally. Licensing The Act does not provide for the licensing of activities involving protected species. For example, the sale of protected plants could be controlled by the issuance of a licence or the picking of protected plants for scientific or commercial purposes could be controlled by the issuance of a licence. Prohibitions Prohibitions are imposed upon every person in relation to protected plants and animals (art 21). In relation to plants there is a prohibition against (art 21(1) (a)): taking, cutting, owning, damaging, destroying, cultivating, collecting and trading in plants that are protected.
2 This
definition is taken from the Threatened Species Conservation Act 1995 (NSW) s.4.
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There is also a prohibition against removing a protected plant or part of a protected plant (art 21(1)(b)). There is a wide range of prohibitions against activities dealing with wild animals (art 21(2)). A power of seizure is also granted to the government (art 24). Exceptions are established, for example, exceptions for the needs of science and the securing of biodiversity and the protection of humans (art 22). This is to be the subject of further regulations (art 22(4). Government obligations UU 5/90 does not impose specifically drafted obligations upon government. Once an endangered species, population or ecological community is identified, ideally there should be an obligation upon government to prepare a recovery plan to promote its recovery to a position of viability in nature. Such an obligation would need to be imposed upon an identified government office and specify the content of the plan at least in general terms and the procedure to be applied in its formulation. Enforcement Apart from the provisions mentioned in Chapter 18, there are enforcement provisions in UU 5/90 regarding protected plants and animals. Firstly, activities must not be in accordance with the function of the zone of use and other zones within the National Park, Grand Forest or Nature Tourism Park (art 33(3)). If so, whoever with intention breaches UU 5/90 will be liable to imprisonment of a maximum of 5 years and a maximum fine of Rp 100 million. (art 402)) There is also another offence regarding anyone who negligently breaches UU 5/90, which will lead to maximum imprisonment for one year and a maximum fine of 50 million rupiah. (art 40(4)) TRADE IN ENDANGERED SPECIES It is widely recognised that there is an active trade, often illegal, in Indonesian wildlife. Control over wildlife smuggling requires intervention by Customs Officials. Clearly, the Customs Office faces enormous problems in surveillance given the geography of Indonesian borders. A review of customs law has not been carried out for the report. The customs laws and regulations that prohibit exports would be a relevant area for research. Presidential Decree No. 43 of 1978 regarding the Ratification of the Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973 (CITES) (Keppres No. 43 Tahun 1978 tentang Pengesahan Konvensi PBB tentang CITES) also needs to be examined to assess the terms of the convention as against implementation within domestic law in Indonesia. SPATIAL PLANNING Spatial planning law is relevant for the protection of endangered species outside protected areas. For example, if an application for a development is made in respect of land that contains a habitat that supports a rare species or the development is likely to negatively impact upon a threatened species, what protections are available within the approval process? If the proposed development is listed as a development that requires an environmental impact assessment (AMDAL), the assessment process itself will provide a level of protection. An evaluation of the extent of this protection is beyond scope of the report. There is not always, however, a correlation between the activities listed as requiring an AMDAL, and those that may affect endangered or rare species. Furthermore, given the timing of the AMDAL, the destruction of an area that is vital for the survival of an 276
endangered species may already have occurred prior to the AMDAL assessment process (problems caused by the timing of the AMDAL discussed in Chapter Six). An additional approach, specifically tailored to species protection, would require a special form of assessment that applies where development consent is sought regarding land that is, or is part of critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitat. This system has been introduced in Australia in the form of a Species Impact Statement (SIS). A SIS is used to assess the significance of the effect of proposed actions on threatened species, populations and ecological communities. It applies whenever an application is made for a development approval or licence that is likely to significantly affect a threatened species, population or ecological community. The sort of information that is required in a SIS includes:3
a general description of the threatened species or populations known or likely to be present in the area of the proposed action;
an assessment of which species or populations are likely to be affected by the action;
details of the district, provincial and national conservation status of the species or population;
key threatening processes affecting it;
an estimate of the local and provincial abundance of the species or population;
a full description of the type, location, size and condition of the habitat of those species and populations, and details of the distribution and condition of similar habitats in the region;
an assessment of the likely cumulative effect of the action on those species or populations in the region (including, if possible, the quantitative effect on local populations);
a description of any feasible alternatives to the action that are likely to be of lesser effect
the reasons justifying the proposed action, having regard to biophysical, economic and social considerations and the principles of ecologically sustainable development; and
measure proposed to mitigate the adverse effect of the proposed action.
It would also be necessary to set out how to determine whether there is likely to be a significant impact on a critical habitat or threatened species, population or ecological community. Factors would need to be listed in an Act or regulation and could include the following:4
3 Taken 4 Taken
in the case of a threatened species, whether the life cycle of the species is likely to be disrupted to the extent that a viable local population of the species is likely to be put at risk of extinction; from Threatened Species Conservation Act 1995 (NSW) s.110(2) from Threatened Species Conservation Act 1995 (NSW) s.94(2).
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in the case of an endangered population, whether the life cycle of the species is likely to be disrupted to such an extent that the viability of the population is likely to be significantly compromised;
in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed;
whether an area of known habitat is likely to become isolated from interconnecting or proximate areas of habitat for a threatened species, population or ecological community;
whether critical habitat will be affected;
whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or similarly protected in the region);
whether the development or activity proposed is of a class that is recognised as a threatening process; and
whether a threatened species, population or ecological community is at the limit of its known distribution.
CONCLUSIONS AND RECOMMENDATIONS The review of the laws and regulations that apply to endangered species protection in Indonesia is not complete, particularly in relation to customs law and the trade in endangered species. The following comments are made on a tentative basis only. Conflicting laws A definitive statement is required at the national level stating that environmental law is to prevail where there is a conflict between a sectoral law that permits an activity that may possibly endanger a rare species of plant or animal and an environmental law that protects the species. Regional autonomy Where international obligations are imposed on the national government, these obligations need translation into national laws to identify government responsibility and obligation at the regional level. The role of central government is crucial in assisting the regions to enact effective regulations that are capable of providing a basis to enforce restrictions and develop management plans. Cooperation between central government and regional government is also vital for the enforcement of national law such as the law regulating the export of wildlife products. Procedures to ensure cooperation therefore need to be formulated at the national level. Species Impact Statements It is likely that the AMDAL process does not give sufficient to protection to endangered or rare species. A new link needs to be established between land use decision-making/spatial planning and species conservation at the national level, such as through the introduction of species impact statements.
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Definitions and concepts A more specific conceptual framework needs to be developed including the following concepts: - species in danger of extinction - rare species - population - community - endangered community and - critical habitat. Management plans The concept of the critical habitat could become the basis for the formulation of community based speciesspecific management plans. Provisions for the preparation of species recovery plans could also be developed including the imposition of government obligations in this regard. Enforcement As with other aspects of environmental enforcement, consideration should be given to introducing strict liability offences (for a discussion of strict liability in criminal offences see Chapter 22). The enforcement provisions are difficult to implement for other reasons. For example, they require evidence as to the actual action that led to the removal of the endangered species from its habitat; provision should be extended to dealing with, handling or owning endangered species. Rights could be granted to the community to report suspected trade in endangered species and obligations imposed upon government to act on such reports .
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PART E – ENFORCEMENT Enforcement may be characterised as the application of a set of legal tools, both informal and formal, designed to impose legal sanctions for the purpose of ensuring compliance with a defined set of requirements.1 An effective enforcement program is essential. 2 If regulatory requirements such as standards, prohibitions, obligations and licensing are not complied with, the goals of environmental policy will not be achieved. That is why effective enforcement tools and effective enforcement programs are essential in a practical sense. Enforcement is also fundamental to the rule basis of a legal system as a whole. If enforcement does not occur, the law will not be taken seriously. As mentioned in Chapter Two, without the imposition of a sanction, the force behind a rule evaporates, and prohibitions and obligations will be seen merely as optional instructions. Predictable and proportionate responses to violations are also necessary to establish the rule of law. An inconsistent or ineffective response to non-compliance will create unfairness, as those who don’t comply are likely to benefit financially from their non-compliance. In Indonesia, different issues arise regarding enforcement, depending upon whether it is an administrative or criminal sanction that are being considered. In relation to administrative sanctions the scope of discretion given to an enforcement authority in imposing sanctions is an issue. In relation to criminal enforcement, the drafting of the offence provision is a particular concern. In seeking compliance there is a tightrope that must be walked between effective enforcement and a cooperative approach.3 An appropriate balance needs to be struck between “command-and-control” and self-regulation. By command-and-control is usually meant a system of control that has a legal basis. It is operationalised through a range of structures and procedures, with the ultimate sanction being achieved by resort to the court system. Self-regulation, on the other hand, allows the regulated entity to assume responsibility for regulating their affairs. It relies on private negotiation and cooperation between the regulated entity and the government agency. In Indonesia, there are additional issues that arise from the need to avoid unnecessary expense in achieving compliance. A preference for self-reporting arises from the reality that enforcement tools such as close monitoring, inspection and compliance assessment are costly. The shortage of legal expertise often prevents enforcement through the court system. There is also a need to encourage cooperative solutions, which do not hinder economic recovery. However, the dilemma for Indonesia is that regulation can only serve its purpose when enforced effectively.
C, “Overview of Compliance and Enforcement in the United States: Philosophy, Strategies and Management Tools” in International Enforcement Workshop Proceedings May 8-10, 1990, Utrecht, The Netherlands, Ministry of Housing, Physical Planning and Environment (VROM) pp. 7-47 at p.9. 2 Michael M Stahl, the US EPA’s Deputy Assistant Administrator of the Office of Enforcement and Compliance Assurance (“OECA”) has said that the importance of an effective compliance effort is difficult to overstate, it is one of the most visible aspects of governments using its power to bring about compliance – but it is also one of the most contentious, as quoted by Markell DL, “The Role of the Deterrence-Based Enforcement in a “Reinvented” State/Federal Relationship: The Divide Between Theory and Reality” The Harvard Environmental Law Review Vol. 24 2000 No.1 pp.1-115 at p.5. 3 See the work in this area of, for example Hawkins K, Environment and Enforcement - Regulation and the Social Definition of Pollution Oxford:Clarendon Press; New York: Oxford University Press 1984. 1 Wasserman
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CHAPTER 21 - ADMINISTRATIVE ENFORCEMENT Introduction Most enforcement action in Indonesia is by the imposition of administrative sanctions.1 Administrative sanctions are sanctions imposed informally by government, without reliance on the court system. Administrative sanctions are often regarded as being an effective and efficient means of responding to less serious violations.2 In Indonesia, administrative sanctions in Indonesia can also be applied to more serious infringements, and include, severe sanctions such as the closure of a facility through the withdrawal of an operating licence. In this regard, the wide scope for administrative sanctions without resort to the court system is similar to The Netherlands.3 It is noticeable from the earlier chapters in the report that statutory provision for administrative sanctions is often quite bare. Furthermore, the extent to which administrative sanctions are actually used is difficult to discern, as there is no systematic record keeping at the national level. There would appear to be a preference for self-reporting and it is unclear the extent to which obligations are followed up when there is non-compliance.4 This chapter will focus on administrative sanctions as framed in Act No 23 of 1997 regarding Environmental Management. It will also refer to administrative sanctions as drafted in Perda from East Java. GENERAL PATTERNS Act No 23 of 1997 regarding Environmental Management UU 23/97 provides for administrative sanctions in Part Three of Chapter VI entitled Environmental Compliance Requirements. It grants authority to the governor “to carry out administrative sanctions”, to take action to “prevent and end the occurrence of an infringement, and to deal with the consequences given rise to by an infringement, and to carry out safeguarding, mitigating, and/or remedial measures at the expense of the party responsible for a business and/or activity” (art 25(1).
This is common also in other jurisdictions such as in the USA – Reich EE and Shea QJ, “A survey of US Environmental Enforcement Authorities, Tools and Remedies” in International Enforcement Workshop Proceedings May 8-10, 1990, Utrecht, The Netherlands, Ministry of Housing, Physical Planning and Environment (VROM) pp.55102 at p.63. 2 Reich EE and Shea QJ, ibid p. 67. In the USA, more serious administrative proceedings are presided over by the Administrative Law Judges in the Administrative Courts of the EPA. They may result in a civil penalty, the creation of a compliance order, or both. If a negotiated outcome is achievable, a consent decree will be entered into which creates a compliance schedule and/or a civil penalty – from Naysnerski W and Tietenberg T, “Private Enforcement of Federal Environmental Law” in Tietenberg T.H., Economics of Environmental Policy Edward Elgar UK, USA 1994 pp.254-276 at p.255 3 Hamzah A. and Surachman RM, “The Application of Criminal Law Instruments in Environmental Law Enforcement” in International Conference on Environmental Enforcement September 22-25, 1992 Budapest, Hungary, Ministry of Housing, Physical Planning and Environment (VROM) The Netherlands pp.429-443 at p.432 4 A report from the BAPEDALDA DKI Jakarta for 1999-2000 shows that whilst there were 986 cases of administrative enforcement arising from surveillance during 1999-2000, 425 involved informing polluters they had not complied with self reporting obligations, 199 involved the issuing of a warning that monitoring results had not been received and 362 involved a warning that the results exceeded the discharge standards. No further information is provided on follow up actions. It was also reported that regarding continuing actions from 1998-1999, of 56 companies that in August 1997 discharged in excess of standards, 43 who had entered into a workplan to install a treatment plant had failed to implement it. These companies were granted an extension of time till June 2000. 1
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The authority granted to the governor is capable of being delegated to the district head or mayor way of a provincial regulation (art 25(2)). UU 23/97 also grants to the Minister, the power to require an environmental audit (art 29) and to the “authorised official”, the power to revoke a business and/or activity licence (art 27(3)). Notably, whilst UU 23/97 confers authority, it does not confer responsibility or impose any level of obligation in relation to administrative sanctions. Water Pollution An example of the provision for administrative sanctions in a pollution regulation was Regulation 20 of 1990 regarding the Control of Water Pollution (PP 20/1990). Key provisions in PP 20/1990 were:
The governor has power to take or order action to cope with and/or prevent the spread of pollution (art 29(5)).
If pollution is actually occurring there is a power to issue a notice requiring compliance with relevant standards forthwith (art 30). If the government surveillance shows “that water pollution has occurred, the governor concerned shall issue instructions to tackle and/or prevent the spreading of the pollution” (art 30(5)). Self-monitoring results are to be submitted to the governor (art 32). If effluent discharges exceed effluent quality standards, the governor is required to issue a warning letter to the responsible person to meet the terms of the effluent quality standard within a specified time (art 33(1)). If the requirements are not met at the end of the period, the governor is empowered to revoke the permit (art 33(2)). Administrative sanctions shall be applied to whosoever violates the provisions of a discharge permit (art 37(1)).
Under PP 82/2001 (reviewed in Chapter Seven), authority has been given to the mayor to impose administrative sanctions (art 48). Sanctions may be imposed for a failure to:
Pay the retribusi fee (art 24(1) prepare an emergency plan (art 25) handle pollution and restore the environment after a pollution incident (art 26) provide information about the management of waste (art 32) meet reporting obligations (art 34) meeting licensing obligations regarding the application of waste to soil (art 35) meet obligations to prevent pollution (art 37) comply with licence condition (art 38) obtain a licence for the disposal of waste to water (art 40) comply with the prohibition against the disposal of solid or gaseous waste to water (art 42).
In addition, every person who fails to prepare a plan to meet an environmental emergency may be taxed by the Mayor (art 49). It can be seen from the provisions that there is an absence of detail regarding the type of administrative sanctions that may be imposed in relation to different types of violations. Provincial regulations Under the authority granted to the governor “to carry out administrative sanctions”, administrative sanctions are often to be found in provincial regulations. In effect, UU 23/97 confers power on the provincial government not only to administer sanctions, but also to make norms and rules regarding those sanctions 282
within the areas of authority mentioned in the Act. The provincial regulations could be expected to provide more detail regarding the steps to be taken in the administration of sanctions, however, it seems that frequently they merely repeat the provisions of UU 23/97.5 Furthermore, the provincial regulations may not be easily located, as they may be contained in internal departmental documents. THE RANGE OF ADMINISTRATIVE SANCTIONS The role of the law in designing administrative sanctions is to: draft rules that allocate authority to impose requirements on individuals and legal entities; set limits to the exercise of the authority; establish procedures to be followed in implementing the authority; and state the requirements to be imposed. The requirements are generally of two types: (a) the demand: a requirement that actions be carried out, usually imposed through the issuing of a notice or direction to a certain individual or corporation; or (b) the prohibition: the issuing of an order to protect a particular aspect of the environment. There needs to be a clear distinction between each type of administrative sanction and the circumstances that will lead to its application. This should be established as a hierarchy of sanctions: for example, a minor infringement would warrant the issuing of a notice or warning; repeated breaches after ignoring a number of notices could lead to the withdrawal of a pollution license; and repeated breaches that result in major pollution could be the basis for the withdrawal of an operating licence. A clean-up notice may be issued when there is a need for a quick response to a pollution incident, such as where a discharge, leak or spill has occurred or is likely to occur. This could be distinguished from a situation in which a systemic waste management problem is occurring but no pollution has resulted, where the issuing of a prevention notice would be appropriate. Existing administrative sanctions The following are the administrative sanctions that are provided for in UU 23/97 together with a commentary regarding how they could be strengthened: (1) Warnings Principles of fairness require that those that may be subjected to administrative sanctions be given prior notice or warnings to provide for the opportunity of voluntary compliance. The UU 23/97 states that administrative sanctions are to be “preceded by an order from an authorised official” but does not set out this requirement as an obligation to give warning or notice before administrative sanctions. Regional regulations are more likely to provide for the giving of notice, as indicated by East Java Regulation 5/2000, which states that orders issued by the governor are to be preceded by a warning letter 5 For example East Java Regulation No.5 of 2000 regarding the Control Of Water Pollution (Peraturan Daerah Propinsi
Jawa Timur Noror 5 Tahun 2000 Tentang Pengendalian Pencemaran Air) and Decision of the governor of DKI Jakarta No. 1893 of 1991 regarding Administrative Action For Industry That Gives Rise To Environmental Damage And Pollution (Keputusan Gubernur Daerah Khusus Ibukota Jakarta No. 1893 Tahun 1991 Tentang Tinkakan Administratif Bagi Perusahaan/Industri/Kegiatan Yang Menimbulkan Perusakan Dan Pencemaran Lingkungan).
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(art 19(2)). However, no detail is given on the form the letter should take or the amount of notice to be given before a particular administrative sanction is imposed. (2) Notice to prevent a pollution incident If there is an imminent threat of pollution, action will need to be taken to stop it. UU 23/97 provides authority to the governor to carry out administrative sanctions “to prevent” an infringement (art 25(1)). This authority may be delegated to the district government (art 25(2)). No further detail is provided at the national level in relation to measures that may be taken to prevent the occurrence of pollution. Prevention notices may be issued where systemic problems are occurring, and an activity is being carried out in “an environmentally unsatisfactory manner”. A prevention notice can require the installation, repair, replacement, maintenance or operation of control equipment; the modification or carrying out of certain work; cessation of the use or alteration of the way plant is used; cessation of an activity; monitoring or the preparation of a plan to control, prevent or minimise pollution.6 In Indonesia, the range of situations that require preventative action could be established at the national level. For example, authority could be granted to issue a prevention notice where activities are being conducted in an environmentally unsatisfactory way that is likely to lead to a contravention of pollution legislation or licence conditions. The notice could be capable of including a requirement to take certain action, such as, the installation, repair or maintenance of control equipment or plant; ceasing to use plant in the way it is being used; or ceasing an activity altogether.7 The national law could also set out the actions that follow non-compliance with a prevention notice. (3) Order to cease discharges The UU 23/97 grants the governor authority to “end an infringement” (art 25(1)) and this authority is capable of being delegated to the district government. This provision does not indicate how to “end an infringement”. There could be a statement to the effect that if pollution is actually occurring there is power to issue a notice requiring immediate compliance with relevant standards. The East Java the Decree No. 136 of 1994 is more specific, as it provides that if waste water quality standards are breached, the governor has power to issue a warning letter three times to licence holders and/or proprietors of businesses/activities. The warning letter may require compliance with standards within a specified time. (4) Revocation of licence to discharge liquid waste A sanction in the form of revoking a pollution license is the kind of sanction that could be applied if there is non-compliance with an order to cease discharges. UU 23/97 does not make provision for the revocation of a pollution licence. Such a provision is likely to exist under delegated regulations. This kind of provision has been incorporated into regional regulations. For example, the East Java the Decree No. 136 of 1994 provides that if there is a failure to rectify the situation at the end of the specified period, the governor is empowered to invalidate the licence (art 8). Regulation No. 5 of 2000 also states that the governor is able to revoke a licence to discharge industrial waste (art 19(3)c.). There is, however, no distinction between the revocation and suspension of a licence and only minimal procedures are established. Regulations could provide procedural fairness provisions such as the 6 As
is provided in s.96 (3) Protection of the Environment Operations Act (NSW) 1997 may be particularly important for groundwater where maintenance checks of storage tanks towards the end of their life span is important. 7 This
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provision of notice and time to allow the holder of a licence reasonable opportunity to make submissions and a requirement for the authority to consider those submissions.8 This could be set out so that the authority “must not suspend or revoke a licence unless before doing” certain things mentioned. The regulation could also require that reasons be given for the suspension or revocation of a licence. (5) Suspension of polluting activities A more serious sanction is a temporary suspension of activities. There is no specific reference to this kind of power in the UU 23/97. It is uncertain whether the Minister still has such a power under regional autonomy. The law should set out the situations that justify a temporary suspension of activities. If the minister, governor, or mayor is empowered to suspend, it could be stated that they “may, by notice in writing direct the occupier or the person carrying on the activity to cease carrying on the activity, or any specified aspect of it for such period specified in the notice”. 9 Procedural fairness provisions should be provided. (6) Closure of discharge pipes A sanction that could be applied if there is non-compliance with an order to cease discharges is the closure of a discharge pipe. Regulation 5 of 2000 in East Java is more specific about action that may be taken to “end and infringement” in that it empowers the governor to close a discharge pipe (art 19(3)a.). It does not, however, list the circumstances that will warrant the closure of a discharge pipe, and as mentioned above in relation to the revocation of a licence, there are no procedural fairness provisions. The East Java the Decree No. 136 of 1994 provides that if there is a failure to rectify the situation at the end of the specified period, administrative measures such as the temporary suspension of activities, the sealing of waste water disposal lines, or other measures specified in a licence may be carried out by the mayor at the direction of the governor following a monitoring and supervision report prepared by related services/agencies (art 9). It can be seen that the East Java decree provides more detail, however, it is also clear that there is no guidance regarding when these more serious measures will be warranted. In addition, the relationship between the mayor and the governor has changed under regional autonomy. (7) Partial or complete closure of a firm The power to order the partial or complete closure of a firm is the harshest administrative sanction that may be imposed. UU 23/97 establishes this sanction, which can be implemented through the revocation of a business and/or activity licence. Article 27(1) states “Sanctions in the form of revocation of business and/or activity licences can be imposed upon certain infringements.” According to the elucidation, “certain infringements” are “serious” infringements and the example that is given is of an infringement that affects the health of a local community. The governor “can submit” a proposal for the revocation to “the authorised official” (art 27(2)). “A party which has an interest” can also submit an application to “the authorised official” (art 27(3)). This has been interpreted in East Java as meaning that the governor is able to recommend to the central government that it take steps to close a facility (art 19(3)(d) East Java Regulation 5/2000). The “authorised official” within central government is not defined in UU 23/97. It would seem to be the sectoral Minister, not the Minister for the Environment.
8 As 9 As
is provided in s.79 (4) Protection of the Environment Operations Act Act (NSW) 1997 is provided in s.101 (2) Protection of the Environment Operations Act (NSW) 1997
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In relation to industrial enterprises, the power to revoke an industrial licence is set out in Government Regulation No. 13 of 1995 regarding Industrial Licenses (Peraturan Pemerintah 13 Tahun 1995 tentang Izin Usaha Industri), article 10 of which provides that a licence may be revoked if an enterprise: 1. expands without a licence to expand; 2. changes location without written agreement from the Minister; 3. causes damage and pollution as a result of its activities and exceeds environmental standards; 4. carried out activities that are not in accordance with the conditions of its licence; or 5. fails to supply information or intentionally hands over information that is not correct. The law should set out in more detail the situations that may lead to a partial or complete closure of a firm as compared to the temporary suspension of certain activities or the sealing of discharge pipes. It also needs to be considered whether this power should only be granted to a person who is politically accountable and the level of government at which it may be exercised. There is insufficient detail on the factors that must be taken into account in deciding whether to close a facility. This is an example of the grant of a very wide discretion, which would benefit from procedural fairness provisions and an appeal process. In this respect, the provisions differ to a similar power in The Netherlands, which is procedural and contains avenues for appeal. Although it is not used widely, it is said to be used with some regularity.10 (8) Order to limit the spread of pollution If pollution has already occurred, administrative action will need to be taken to limit the spread and impact of the pollution. UU 23/97 provides that the governor can “deal with the consequences given rise to by an infringement” and “carry out safeguarding and mitigating measures” (art 25(1)). There is no detail as to what is to be done in procedural terms. A distinction needs to be made between the government taking action itself (and recovering the cost at a later date) and ordering the polluter to take action. This could be specified by granting the power to issue a notice to require that action be taken to contain the spread of pollution within a certain timeframe and by granting the power in particularly serious situations to take immediate unilateral action. In addition, an obligation could be imposed upon government to take action to limit the spread of pollution in certain defined circumstances. (9) Order to clean-up or restore the environment If an environmental violation has occurred, it may be necessary to clean up or restore the environment. UU 23/97 provides authority to the governor to “carry out remedial measures” (art 25(1)) and this authority can be delegated to the district government (art 25(2)). Procedures are needed to identify when it is appropriate for the government to carry out remedial measures itself and when it is to issue instructions that the polluter carry out remedial measures. The meaning of “remedial measures” is not clearly set out. Orders to “clean up” are different in kind to orders to “restore”. Clean up is relevant to pollution offences and bringing the quality of the environmental media, such as a water resource or soil, back to that which existed before the offence. Restoration, on the 10 Hans JA Schaap, Small Business Compliance – the role of local communities in International Enforcement Workshop
Proceedings May 8-10, 1990, Utrecht, The Netherlands, Ministry of Housing, Physical Planning and Environment (VROM) pp.87 – 102 at p.96
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other hand, is relevant to offences that have an impact on natural resources and could involve, for example, the replanting of lost vegetation, or the replenishing of lost fish stocks. A distinction between both forms of remedial measures therefore needs to be made.
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(10) Compulsory environmental audits Under UU 23/97, the Minister has power to order a party to conduct an environmental audit and the party must execute the order (arts 29(1) and (2)). Furthermore, if the offending party refuses to carry out an environmental audit, the Minister can arrange for a third party to carry out the audit at the expense of the offending party as determined by the Minister (art 29(3) and (4)). There is nothing in the Act regarding the circumstances that will justify the ordering of an environmental audit in comparison to other administrative sanctions, nor is their any explanation as to the kinds of sanctions that may be administered based on the findings of the audit. Recently, regulations have been passed in relation to compulsory audits, which have not been reviewed in the report. Regulations have also been passed in relation to voluntary audits.11 (11) Recovery of costs UU 23/97 states that the government may carry out safeguarding the environment, mitigating the effects of pollution and the taking of remedial measures “at the expense of the party responsible for a business and/or activity” (art 25(1)). Again, there is no procedure to indicate how this will occur. Does this provision mean that the government is to physically take remedial measures? What is to be done if the party responsible does not provide for the cost before the measures are taken? Is the government to restore and then seek to recover the cost from the violator? How can this be enforced? East Java Regulation 5/2000 provides in article 21 (1) that the cost of restraining pollution is to be borne by those responsible for the polluting activity and that further regulations are to be passed by the governor specifying how this is to be done. Ideally, all compliance costs should be recoverable by the regulatory authority from the polluter. Whether or not this is provided for is not clear from the wording of article 25(1) UU 23/97; there is no mention of compliance costs such as the cost of issuing notices, and the cost of preventing an occurrence or ending an infringement. The costs to be recovered should include at least the monitoring costs of checking whether a notice has been complied with, costs associated with prevention and clean-up notices, the cost of ensuring the notices are complied with, the cost of preventing the spread of pollution and the costs of cleaning up or restoring of the environment. Power to recover this money as an unpaid debt in a court should be provided for as well as the ability to impose a charge on land subject to a compliance cost notice.12 Additional administrative sanctions (1) Administrative fines There is no express provision for the imposition of financial penalties to discourage illegal activities. In this regard, it is similar to the Dutch system where administrative fines are unknown.13
11
Decree of the Minister for the Environment No. KEP-42/MENLH/11/1994 Regarding General Guidelines for the Implementation of Environmental Audits deals with voluntary audits. 12 As is provided in ss.105 & 107 Protection of the Environment Operations Act Act (NSW) 1997. 12 As is provided in ss.105 & 107 Protection of the Environment Operations Act Act (NSW) 1997. 13 Hans JA Schaap, Small Business Compliance – the role of local communities in International Enforcement Workshop Proceedings May 8-10, 1990, Utrecht, The Netherlands, Ministry of Housing, Physical Planning and Environment (VROM) pp.87 – 102 at p.96 In recent years the Public Nuisance Act has provided for periodic penalty payments this has proved effective in particular regarding firms who fail to install particular pieces of equipment, at p.96.
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Fines may be an effective deterrent, especially if they are calculated based on the total economic gain made by the firm in failing to comply with the law. In this way, the imposition of a fine will also promote equity by denying violators any competitive advantage. There should be a well-publicised set of principles to be applied in setting the level of the fine. The principles should require a consideration of the polluter’s economic gain from committing the acts of pollution, such as: - costs the accused has delayed; - savings gained by refusing to operate and monitor pollution control equipment; and - advantages gained over competitors from not complying with legislation. Fines could be paid into a special fund for the protection of the environment – not to central funds. (2) Prohibitions The other aspect of administrative enforcement that has not yet been developed is the issuing of an order to protect a particular aspect of the environment. Such an order is not addressed to a particular individual or corporation rather it prohibits any interference with the aspect of the environment that is being protected. For example, it may apply to protect trees of a certain size or a certain species of flora or fauna. It may also apply to the preservation of a particular area of cultural or environmental importance. In the sense of an administrative sanction, it is usually imposed when there is an immediate threat that needs to be prevented. It may be drafted in such a way that allows the imposition of criminal proceedings if the order is violated. (3) Publicity There could be an effective synergy between enforcement and programs similar to the PROPER PROKASIH14 program started by BAPEDAL that focused on publicising the environmental performance of industry. A World Bank study has found that firms are more willing to invest in pollution abatement when regulators undertake strong enforcement action and there is a public ranking of firms in terms of their environmental performance.15 The lessons from PROPER PROKASIH could be applied to administrative enforcement more widely, to take away the private aspect of administrative enforcement. Although administrative sanctions are not normally publicly imposed in the same way as a court sentence, there could be a legal requirement to publish the record of administrative sanctions and to also make a public appraisal of the environmental performance of businesses whose activities have an impact on the environment. ADMINISTRATIVE SANCTIONS AT THE REGIONAL LEVEL Whilst a review of the existence of administrative sanctions at the regional level has not been carried out for the report, reference has been made to the situation in East Java. In Yogyakarta, the decisions of the governor, which set up the discharge standards for the health, industrial and tourism sectors also contain
14 Decision of the Head of BAPEDAL No. KEP-32/BAPEDAL/05/1997 regarding guidelines and method for valuing the
performance of industry within the Clean Rivers Program Keputusan Kepala Badan Pengendalian Dampak Lingkungan No.: KEP-32/BAPEDAL/05/1997 Tentang Pedoman dan Tata Cara Penilaian Peringkat Kinerja Perusahaan/Kegiatan Usaha Dalam Lingkup Kegiatan Program Kali Bersih. Under PROPER PROKASIH companies are colour coded from black, red, blue, green and gold according to the level of their industrial discharges. The ratings are publicised biannually. 15 Lanoie P, Laplante B and Roy M, Can Capital Markets Create Incentives for Pollution Control, World Bank Paper 1997, 1753.
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provisions regarding administrative sanctions.16 The provisions are, however, quite bare. An example is the provision that “the breach of standards is able to provide the basis for the revocation of a license”. It may be assumed that administrative sanctions at the provincial level are not more detailed than at the national level. CONCLUSIONS AND RECOMMENDATIONS Scope In drafting administrative sanctions, consideration should be given to the full range of administrative sanctions established as a hierarchy that correlates with the system of criminal enforcement. Administrative sanctions should include at least the following: (a) Warnings (b) Notice to prevent a pollution incident (c) Order to cease discharges (d) Revocation of licence to discharge liquid waste (e) Order to suspend polluting activities (f) Closure of discharge pipes (g) Partial or complete closure of a firm (h) Order to limit the spread of pollution (i) Order to clean-up or restore the environment (j) Compulsory environmental audits (k) Recovery of costs (l) Administrative fines (m) Administrative prohibitions (n) Automatic publicity on the imposition of an administrative sanction. Drafting It can be seen from the lack of specificity in the law and regulations that there is very wide scope for the exercise of discretion in administrative enforcement. This is likely to lead to a lack of accountability in the imposition of sanctions. This opens up questions regarding whether administrative sanctions are being administered proportionately and consistently. To secure proportionality there is a need for detailed procedural provisions to reduce discretion and allow all concerned to anticipate the likely steps in the institution of administrative sanctions. The full range of actions that are available administratively should be provided for nationally in a hierarchy. This would also assist transparency. Fairness in the application of sanctions requires consistent responses to similar factual situations. A consistent approach would be facilitated by a hierarchy that defines each offence and its sanction and that makes an explicit correlation between the type of administrative sanction that may be applied and the level of environmental damage. There should be explicit correlation between the type of administrative sanction that may be applied and the level of environmental damage. For the more serious offences, for example, there is should be a definition of ‘serious environmental harm’ that could be employed where there is actual
16
For example: Decision of the Governor Yogyakarta No. 65 of 1999 regarding Liquid Waste Quality Standards for the Health Sector (Keputusan Gubernur Kepala DIY No.65 Tahun 1999 Baku Mutu Limbah Cair bagi Kegiatan Pelayanan Kesehatan Di Propinsi DIY)
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or potential adverse effect on the health or safety of human beings or on important environmental values, or which is of a high impact because it is on a wide scale or is irreversible. Level of lawmaking To provide a high level of authority, administrative sanctions should be established procedurally in a statute rather than a regulation. The imposition of administrative sanctions should be cast in terms of obligations imposed upon government. This would also help to secure a level of national consistency in the imposition of administrative sanctions. National consistency in enforcement is particularly important given the decentralisation of environmental authority to district government. Level of environmental authority A way of developing accountability in administrative enforcement would be through “second-line” enforcement at the national level. Such an arrangement applies in The Netherlands where the Inspectorate for the Environment monitors the manner in which municipalities perform their environmental tasks. It uses a classification system for rating the municipalities and evaluates their performance under the heading of policy, planning, organisation, external contacts and performance.17 A stronger version would be that which applies in USA, where the Federal Government can actually step in and carry out enforcement actions. The chief difficulty in achieving this is that the BAPEDAL office is not structurally related to the BAPEDALDA office, so that neither BAPEDAL nor the Ministry for the Environment is able to impose any authority upon environmental agencies in the provinces or districts. Public participation Administrative sanctions may be more likely to be imposed where there has been a request from the public for action to be taken in relation to a particular situation. UU 23/97 provides that a third party which has an interest has “the right to submit an application to the authorised official” to carry out an administrative sanction (art 25(3)). This right is not complemented in the Act by an obligation upon government to respond to the application made by the member of the public. Consideration needs to be given as to what will flow from a decision by a government official to refuse to impose administrative sanctions. Is there any recourse to the courts in such a situation? It has been noted by Carnwath18 that a challenge to a decision by an authority is more likely to be successful where a statute provides that the presence of a set of facts require certain action and all that is in question is the presence of the facts. He says that legislation should define specific circumstances in which specific remedies will be activated, in the form of obligations imposed upon defined enforcing authorities, or other specific remedies, by way of coercion or compensation, public or private.19
17 Administrative
Enforcement on the Netherlands Environmental Management Act Sixth Progress Report on Environmental Law Enforcement, Ministry of Housing, Spatial Planning, and the Environment, the Netherlands, 19941995 Indonesian Journal of Environmental Law 2nd Ed August 1997 pp.143-151 at p.145. 18 Carnwath R, “Environmental Litigation – A Way Through the Maze?” Journal of Environmental Law Vol. 11 No. 1 1999 pp.3-13 at pp.8-9, referring to his decision in R v Carrick District Council ex parte Shelley [1997] JEL 103. 19 Ibid p.9.
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These comments are particularly relevant to drafting administrative sanctions in Indonesia and the means to secure accountability through public participation.
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CHAPTER 22 - CRIMINAL ENFORCEMENT Introduction A decision to prosecute transforms enforcement from a private ordering of relations between a polluter and an environmental agency into an open contest, in which the agency seeks to publicly sanction a polluter’s actions.1 A major argument for enforcement through the criminal law is its deterrence value. Although all sanctions have a deterrence value, in criminal enforcement the value is increased by the public nature of the proceedings.2 The stigma of a criminal conviction and punishment may have a strong deterrence value in the Indonesian context because it damages reputation and prestige, which is particularly important in the commercial sector. On the other hand, economic need may provide a strong incentive to break the law. The role that criminal law could play in deterring polluting activities in Indonesia is a suitable area for further research. The effectiveness of deterrence is likely to be influenced by the size of the penalty actually imposed through the courts, not just the penalty contained in the statute. Unless the courts are willing to make full use of the scope provided to them in setting penalties, a criminal conviction is unlikely to have a deterrence effect. To create predictability there should be a well-publicised set of principles to be applied in setting penalties. Penalties also need to be appropriate to the offence. As mentioned in Chapter 21 in relation to administrative fines, appropriate penalties will ensure that violators do not obtain a competitive advantage. The setting of a penalty should include a consideration of the polluter’s economic gain from the acts of pollution such as: - cost the accused has delayed paying; - savings gained by refusing to operate and monitor required pollution control equipment; and - advantages gained over competitors from not complying with legislation. THE PLACE OF CRIMINAL ENFORCEMENT IN ENVIRONMENTAL LAW IN INDONESIA In Indonesia, criminal law is seen as playing a supporting role rather than key role in enforcement. The elucidation in UU 23/97 states that it should only be used if (Part 7): …sanctions in other fields of law, such as civil and administrative sanctions and alternative dispute resolution are not effective and/or the level of blameworthiness of the party concerned is relatively serious and/or the results of the activity are relatively large and/or the action gives rise to uneasiness in the community.
There has been very little criminal enforcement in Indonesia. There are, no doubt, many reasons for the low number of criminal convictions, including the time and resources needed to launch a prosecution. This chapter, however, reviews the statutory provisions for criminal enforcement. At issue is whether the drafting of the offences creates provisions which are readily enforceable. The enforceability of criminal legislation is particularly important, as the prosecution has to prove its case beyond reasonable doubt. It must be assumed that a criminal charge will be vigorously defended. Ambiguity or complexity in the legislation is likely to make an authority hesitate before embarking on a criminal prosecution. If the regulated community believes that the impediments to a successful prosecution are so great that a 1 Hawkins K, Environment and Enforcement - Regulation and the Social Definition of Pollution Oxford:Clarendon
Press; New York: Oxford University Press 1984 p.194 2 By “deterrence” it is meant that potential polluters are discouraged from violating environmental requirements.
conviction is unlikely, the deterrent effect of a crime on the statute books will be minimal. In discussing the requirements that can be expected to arise in successfully prosecuting an offence, some reference will be made to Australian environmental law. THE FRAMEWORK - ACT NO. 23 OF 1997 REGARDING ENVIRONMENTAL MANAGEMENT To secure a criminal conviction requires the prosecution to provide evidence of the breach of a relevant obligation or prohibition and to make out the components of an offence provided for by Act No. 23 of 1997 regarding Environmental Management (UU 23/97). There is no provision in UU 23/97 for media specific offences such as water or air pollution or particular offences relating to the destruction of natural resources. The offence provisions in the Act are the vehicle for the prosecution of a breach of an obligation or prohibition found elsewhere in the Act or in other legislation. Definitions Difficulty caused by complexity and vagueness of definitions was mentioned in Chapter Five. As mentioned therein “environmental pollution” is defined as: the entry or the entering into of living creatures, substances, energy, and/or other components into the environment by human activities, with the result that its quality decreases to a certain level which causes the environment not be able to function in accordance with its allocation (art 1(12))
Questions that arise concerning enforcing this definition are: What is “environmental quality” and how is it to be established? How is the “certain level” that “causes the environment to not function in accordance to its allocation” to be ascertained? What is the “allocation” of the environmental function? Environmental damage is defined as: action which gives rise to direct or indirect changes in the physical and/or biological characteristics of the environment which causes the environment to no longer be able to function to support sustainable development (art 1(14)).
This definition is difficult to apply as it relies on the concept of sustainable development which itself suffers from vagueness. As mentioned in Chapter Five, to prove environmental damage under UU 23/97, it would have to be established that sustainable development has been interfered with in that the quality of human life has been affected by a particular action. It may not always be immediately apparent that the capability, welfare or quality of life is disturbed, for example, if human health effects are cumulative. The offences The Act creates an offence where an intentional or negligent action has harmed or is likely to harm the environment. Higher penalties have been created for intentional as compared to negligent actions. A distinction has been made between situations where damage has actually occurred and where there is the potential for an action to give rise to environmental pollution or damage. There is a further distinction between criminal actions carried out by individuals and legal entities, such as a company, association, foundation or other organisation, so that for legal entities, the fine is increased by a third. The offence provisions reviewed below may be categorised as follows:
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NO PROOF OF DAMAGE
INTENTIONAL CONDUCT
PROOF OF DAMAGE Article 41(1)& (2)
NEGLIGENT CONDUCT
Article 42 (1) & (2)
Article 44 (1) & (2)
Article 43 (1) & (2)
Intentional conduct There are two criminal offences requiring the prosecution to prove intention, namely offences where damage has occurred and offences where there is potential damage. (a) Damage that has occurred Article 41 (1) Any person who in contravention of the law intentionally carries out an action which results in environmental pollution and/or damage, is criminally liable to a maximum imprisonment of 10 (ten) years and a maximum fine of Rp. 500,000,000 (five hundred million rupiah) (2) If a criminal action as provided for in (1) above causes the death or serious injury of a person, the person who carried out the criminal action is criminally liable to a maximum imprisonment of 15 (fifteen years) and a maximum fine of Rp. 750,000,000 (seven hundred and fifty million rupiah).
(b) Potential damage Article 43 (1) Any person who in violation of applicable legislation, intentionally releases or disposes of substances, energy and/or other components which are toxic or hazardous onto or into land, into the atmosphere or the surface of water, imports, exports, trades in, transports, stores such materials, operates a dangerous installation, whereas knowing or with good reason to suppose that the action concerned can give rise to environmental pollution and/or damage or endanger public health or the life of another person, is criminally liable to a maximum of six years imprisonment and a maximum fine of Rp. 300,000,000 (three hundred million rupiah).
Liability under article 41 will depend on proof of intention to carry out the actions that led to the pollution. Liability under article 43 does not require proof of actual damage but requires proof of an intentional action and knowledge that this action could give rise to pollution or environmental damage. The experience in Australia is that to successfully prove intention there must be evidence of the state of mind of the individuals who carried out the polluting or environmentally damaging activities. In relation to a corporation, the evidence will need to focus on those who constitute its “directing mind”.3 This evidence may be hard to find.4 From a reading of article 41, it would seem that a successful prosecution would need to prove beyond reasonable doubt that: 1. there has been a contravention of a law; 2. the contravention was intentional; and 3. the action resulted in environmental pollution and/or damage (query whether the intention has to extend to causing the damage).
3 Tesco
Supermarkets Ltd v Nattress [1972] AC 153 In Australia proof of the mental element requires proof of knowledge of the circumstances which make the doing of the act an offence, or an absence of an honest belief on reasonable grounds that the circumstances were such that the act was innocent. Knowledge may be proved by showing wilful blindness or reckless indifference to the facts. State Pollution Control Commission v Hunt (1990) 72 LGRA 316 at 324 (NSW Land and Environment Court, Bignold J.) 4
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It would be easier to make out an offence under article 43 as it does not require proof of actual damage. Article 43 only requires proof that the action could give rise to pollution and/or environmental damage or endanger public health or the life of another person. The provisions contained in article 43 constitute a delik formal.5 Where, for example, a certain company or activity is alleged to have polluted a river, it may be difficult to prove actual damage because before the offence the ambient water quality standard was already exceeded. The delik formal contained in article 43 may be easier to prove as it concerns the release or disposal of a substance rather than the effect that the release or disposal has on the environment. However, there are other obstacles posed by the wording of article 43, as it must be proved beyond reasonable doubt that: 1. there has been a violation of applicable legislation; 2. the release or disposal of substances was intentional; 3. the substances are toxic or hazardous; 4. the action could potentially give rise to environmental pollution and/or damage or endanger public health or the life of another person; and 5. the release or disposal was done knowingly, or with good reason to suppose the action could give rise to environmental pollution and/or damage or endanger public health or the life of another person. Hazardous or toxic material is defined in article 1(17) as: material which due to its nature or concentration, both directly and indirectly, can pollute and/or damage the environment, health, the continuation of human life and of other living creatures.
According to Koesnadi, it will be sufficient to prove that effluent standards have been exceeded.6 However, this would not seem to conform with the approach taken to the management of hazardous and toxic waste, which focuses on the chemicals and substances posing particularly serious threats to the environment or human health. Negligent conduct There are two criminal offences requiring the prosecution to prove negligence, namely offences where damage has occurred and offences where there is potential damage. There is no explanation in UU 23/97 of what is meant by “negligence”. To prove negligence, is it necessary to prove a gross departure from an “appropriate standard” of conduct (determined by an objective test) or does each case require the determination of a standard of care that should have been taken by the defendant? This question has arisen in Australia. There the courts have held that whether or not an action is negligent, is to be decided through the application of an objective test. The test is whether the risk of the harm caused would have been foreseeable to a reasonable person in the position of the defendant. The test is not whether the defendant actually (i.e. subjectively) foresaw the risk himself.7 Therefore, it is the failure to 5 Koesnadi
H, Hukum Tata Lingkungan Gadjah Mada University Press 1999 at p.409. H, ibid at p.411. 7 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44, 47-48. This was a civil case and the same test was adopted in the criminal law in Nydam v The Queen (1977) VR 430 at 445 and R v Buttsworth [1983] 1 NSWLR 658 at 675. Also NSW Sugar Milling Co-operative Limited v EPA (1992) 75 LGRA 320 at 321; EPA v Anning (unreported, NSW L&E Ct, 6 Koesnadi
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exercise the level of care, skill and foresight that would be expected of a reasonable person in the particular situation of the person charged that is important.8 In writing the report, reference has not been made to Indonesian case law regarding an interpretation of negligence, however, the suggestion is made that this aspect may need to be clarified in the Indonesian context. (a) Damage that has occurred Article 42 (1) Any person who due to their negligence performs an action that causes environmental pollution and/or damage, is criminally liable to a maximum imprisonment of three years and a maximum fine of Rp. 100,000,000 (one hundred million rupiah).
This fine is increased to Rp. 150,000,000 and a maximum of 5 years imprisonment if serious injury or death is caused (art 42(2)). Notably, criminal proceedings under article 42 do not seem to require the breach of any law. It will be sufficient for an action to have been carried out negligently and for environmental pollution or damage to occur. (b) Potential damage Article 44 (1) Any person who in violation of applicable legislative provisions, because of their negligence performs an action as in article 43 is criminally liable to a maximum of three years imprisonment and a maximum fine of Rp. 100,000,000 (one hundred million rupiah).
Also if death or serious injury is caused then pursuant to (2) the fine is increased to Rp. 150,000,000 and a maximum of 5 years imprisonment. Under article 44 therefore, it is necessary to prove that a legislative provision has been violated and all the components of an offence under article 43 need to be made out except for actual intention. Causation The failure to prosecute pollution offences in Indonesia has been attributed to difficulties in proving the causal connection between the breach of effluent guidelines and a decrease in ambient standards.9 A prosecutor will be required to prove causal connection between the actions of the defendant and the consequences that are said to have occurred or likely to occur. This means that the defendant’s actions (or non actions) must be shown to be a cause that can reasonably be considered the cause of the environmental damage or pollution.10 Even where there is no need to prove actual damage, there will still be a need to prove a likelihood that damage could occur. Proof of causation is often the major hurdle in environmental law cases. An objective assessment needs to be made, guided by expert evidence.11 For example, in a water pollution prosecution, scientific evidence of Lloyd J, 29.6.1998, Nos 5077-86 of 1995) at 7-8. The negligence only relates to the foresight of the consequences of a particular action: EPA v N (1992) 76 LGRA 114 at 116; EPA v Anning (unreported, NSW L&E Ct, Lloyd J, 29.6.1998, Nos 5077-86 of 1995) at 8. 8 Hemmings J in SPCC v Kelly (1991) (unreported, Land and Environment Court, 21 June 1991 and 26 June 1991). 9 Koeswadji HH, Hukum Pidana Lingkungan Penerbit PT Citra Aditya Bakti Bandung 1993 at p.58. There is not space to go into obstacles caused by the requirements of criminal procedure in Indonesia (Kitab Undang-undang Hukum Acara Pidana), but articles 183 and 184 have been criticised by some Indonesian academics as needing revision. 10 Koeswadji HH, ibid at p.55. 11 Koeswadji HH, ibid at p.59.
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water conditions before and after the event will be relevant. The possibility that the cause may be one or more actions also needs to be considered.12 Furthermore, a prosecutor must be ready to address the argument that the cause of the water pollution was in fact unrelated to the actions of the defendant. Some of the difficulties in proving causation would be eliminated by simplifying the definitions of “environmental pollution” and “environmental damage” contained in UU 23/97 mentioned in Chapter Five. Strict liability A question that arises is, why has the burden of proving intention or negligence been retained for all offence provisions? A trend in other countries has been to remove this burden by imposing strict liability in relation to some criminal offences. This has been done particularly where offences are in the nature of public nuisance or public welfare offences.13 Whilst strict liability has been provided for in the UU 23/97 in relation to civil proceedings seeking compensation (art 35(1)), it is not mentioned in relation to criminal enforcement. By way of contrast, in the Anglo-American legal system statutory provision for strict liability arises in relation to criminal enforcement.14 For example, in Australia where an offence is one of strict liability, proof of mens rea in the sense of a specific state of mind - motive, intention, knowledge or advertence - is not necessary. In strict liability, intention to commit an offence is presumed to be present unless evidence is provided by the defendant of an honest and reasonable, but mistaken belief of facts, which if true, would have made the conduct not criminal.15 Strict liability is helpful for a prosecutor, particularly regarding corporate liability and the liability of individual directors, where it may be difficult to prove actual intention or negligence. The threat of successful prosecution, made easier by strict liability, has been attributed to increased success with the voluntary compliance approach. There are arguments against the introduction of strict liability in criminal law. It would need to be discerned the extent to which strict liability is compatible with the Criminal Code (Kitab Undang-undang Hukum Pidana dan Peraturan Perundang-undangan). It may be argued that to take out the requirement to prove the mental element in criminal law is unfair and removes an essential component of criminal law. These arguments need to be balanced against the need for environmental protection and the wider issues of public concern. A proposal to introduce strict liability in criminal enforcement in Indonesia is likely to be controversial. It would, therefore, benefit from discussion in the public arena. Corporate liability The ability to impose liability on a corporation is important if the corporate culture within an organisation directed, encouraged or led to an offence. By “corporate culture” is meant an attitude, policy, rule or course of conduct or practice existing within the corporation. There are policy reasons in favour of targeting a 12 Koeswadji
HH, ibid at p.59. v Sunbeam Corporation Ltd [1974] 1 NSWLR 659 at 664; Cooper v ICI Operations P/L (1987) 64 LGRA 58 at 65; 31 A Crim R 267 at 271; Tiger Nominees v State Pollution Control Commission (1991) 24 NSWLR 715 at 719. 14 This is also the case in European Community law. The White Paper on Environmental Liability – Commission of the European Communities, White Paper on Environmental Liability, Com (2000) 66 final, Brussels, 9 February 2000 discussed by Bergkamp L, “The White Paper on Environmental Liability” European Law Review April 2000 Vol. 9 No.4 pp. 105-114 and May 2000 No.5 pp.141-147 at p.105 expressed the view that strict liability is for conventional and environmental damage caused by ‘dangerous’ activities regarded by the EC law (virtually all industrial activities) and fault liability for natural resources damage from non-dangerous activities. 15 He Kaw The v R (1985) 157 CLR 523; Jiminez v R (1992) 66 ALJR 292. When used in criminal enforcement, strict liability may lead to a debate over whether or not the defendant has made an unreasonable mistake of fact or shown a reasonable degree of diligence in setting up and maintaining a pollution prevention and/or management system. 13 Majury
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corporation. They stem from the difficulty in identifying the actual wrongdoer; a belief that proper management systems to prevent pollution are an organisational responsibility; and the fact that pollution results from the utilisation of a public resource for private gain.16 UU 23/97 provides for corporate liability by defining “a person” as an individual person, and/or a group of people and/or a legal body (art 1 (24)).17 It also provides that if a criminal action is carried out by, or in the name of a legal body, company, association, foundation or other organisation, the fine is to be increased by a third (art 45). Corporate liability is provided for in article 46(1), which states that: If a criminal action…is carried out by or in the name of a legal body, company, association, foundation or other organisation, criminal charges may be made and criminal sanctions…. are imposed both against the legal body…. and against those who give the order to carry out the criminal action concerned or who act as leaders in the carrying out of it and against the two of them.
Individual liability Liability of directors or those “who give orders” or who “act as leaders” within a legal entity is imposed by article 46 (2) in UU 23/97, which provides: If a criminal action as is provided for in this Chapter is done by or in the name of a legal body, company, association, foundation or other organisation, and is done by persons, both based on work relations and based on other relations, who act in the sphere of a legal body, company, association, foundation or other organisation, criminal charges are made and criminal sanctions imposed against those who give orders or who act as leaders regardless of whether the people concerned, both based on work relations and based on other relations, carry out the criminal action individually or with others.
This accords with the trend to subject those involved in management potential criminal liability on the basis that it is undesirable policy to insulate top-level management from personal responsibility. If charges are originally laid against a person who is not a manager, the court is able to require the manager to attend court in person (art 46 (4)). This provision purports to deem those in leadership positions guilty of the same offence as that committed by the corporation. It is not clear, however, as to the circumstances in which managers, decision makers or employees will be made liable where the actual operator is the company. Will it always be the person and not the company that is sued, and if not, when will the company be sued? The legislation in Indonesia may need further elaboration in relation to any defences that should be allowable to individual liability, such as where a person is not in a position to influence the conduct of the corporation or where a person in a position of influence used due diligence to prevent the contravention by the corporation. Vicarious liability In Indonesia, it is not expressly stated that where an offence is carried out by an employee in the course of his/her employment, the employer (a person or a corporation) will be vicariously liable. In Australia, strict liability has facilitated the acceptance of vicarious liability.18 The reasoning has come from tort law where
16 Bates
G and Lipman Z, Corporate Liability for Pollution Law Book Company Information Serices 1998 at p.3.
17 A serious omission in criminal procedure that arises from the Criminal Code is the limitation of liability to an individual
and the exemption of corporations from criminal liability. 18 SPCC v Tiger Nominees Pty Limited and SPCC v Kristin Nominees Pty Limited (Land and Environment Court, 9 May 1991) confirmed by the Court of Criminal Appeal (1992) 25 NSWLR 715 (Gleeson CJ, Mahoney JA, Campbell J) 17 February 1992.
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an act of an employee who acts in the course of his employment may expose an employer who is not personally at fault to a penalty as well as to liability for damages.19 Provisions regarding vicarious liability have caused difficulty in relation to prosecution for forest fires. There has been a reluctance to prosecute companies where paid workers or members of a community have done the burning. The police often arrest farmers and labourers instead of the corporate managers, so that in relation to the investigation of companies it is the workers who become the suspects.20 Express provision for vicarious liability may help to overcome these difficulties. CONDUCT OF A PROSECUTION The decision to prosecute There is no guidance from legislation or guidelines concerning when criminal proceedings should be instituted, apart from the statement referred to above that a criminal prosecution should be a last resort. Indonesia could consider drafting a national enforcement code or guidelines to cover both administrative and criminal enforcement. For example, the UK Environment Agency has an Enforcement Code, which is a general statement on enforcement policy, a guide to enforcement for its officers, and a guide to the rights of businesses when enforcement action is proposed against them.21 Responsibility for running a criminal prosecution Some observers say that one of the reasons for the absence of criminal prosecutions is the fact that environmental agencies do not have ultimate responsibility for bringing cases to court. After a decision is made by the environmental agency to pursue a violator, a brief must be prepared and submitted to the police department for consideration. If they are not satisfied that the evidence is sufficient, the case will not be pursued. The next stage involves submission of the brief to the Attorney General’s office. Whilst these agencies have expertise in criminal law, they do not have expertise in environmental law. There is also the possibility of outside interference influencing a decision not to proceed with a prosecution. Discussion should be opened up regarding whether or not an environment agency should have authority to run a prosecution itself, independently of the police and the Attorney General’s office. This is commonly done in some countries such as the United States and Australia. National institutional safeguards National consistency in enforcement is particularly important given the decentralisation of environmental authority to regional government. As discussed in relation to administrative enforcement, a way of achieving a level of accountability in enforcement could be through “second-line” enforcement at the national level or by enabling the central environmental authority to step in and carry out a prosecution. This is not possible in the current arrangement of government authority.
19 SPCC
v Kristin Nominees Pty Limited Gleeson CJ at p. 12. and Land Fires in Indonesia Impacts, Factors and Evaluation Vol.1 September 1998 State Ministry for the Environment and UNDP p.118. 21 Ball S and Bell S, On Environmental Law – The Law and Policy Relating the Protection of the Environment (4th Ed) Blackstone Press Limited London 1997 at pp.147-148. 20 Forest
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Community enforcement In some countries, it is possible for members of the public to play a role in criminal enforcement by commencing criminal proceedings concerning environmental offences with the leave of the court.22 Environmental law could set out the requirements that must be fulfilled before the court will grant leave, for example, it could be stated that the following must have occurred:23 the relevant environmental agency has been notified of the proceedings; the relevant environmental agency has decided not to take any action or has failed to decide within 90 days; the proceedings are not an abuse of the court; and the particulars of the case disclose that a case can be made out. CONCLUSIONS AND RECOMMENDATIONS Relationship with administrative sanctions There is no connection between the failure to comply with administrative orders and notices and the commencement of criminal proceedings. A hierarchy of administrative sanctions should be related to the regime for criminal enforcement. Drafting The drafting of the criminal provisions in UU 23/97 is likely to cause unnecessary impediments for prosecutors. This is exacerbated by the definitions of “environmental pollution” and “environmental damage” contained in UU 23/97, which are complex and vague. The drafting of the criminal offence provisions needs to be reconsidered for the purpose of simplification. Forms of liability Strict liability has not been incorporated into the provisions regarding criminal offences. The need for proof of intention or negligence in all criminal prosecutions is a question that should be opened up for discussion in Indonesia. The approach to be taken in proof of “negligence” in environmental offences may also need to be clarified. The concept of vicarious liability should be opened up for discussion. Whilst individual liability has been imposed on company directors, the circumstances where a company will be the liable party, rather than an individual director, need to be clarified. Environmental authority for criminal enforcement As discussed in Chapter Four, clear allocation of authority for criminal enforcement at the regional level has not yet been made. This needs to be rectified. National guidelines for the exercise of prosecutorial discretion could be prepared so that the decision-making process in relation to commencing a prosecution is more predictable and transparent. Debate could be opened up regarding the removal of the requirement that environmental prosecutions be run by the police and the Attorney General’s office.
22
In the USA citizens can take on the role declined by an agency and sue violators themselves in proceedings known as “citizen suits” provided for in the particular statute governing the environmental medium. Also in Australia enforcement may be commenced by a member of the public pursuant to the Protection of the Environment Operations Act 1997 (NSW) s.219(1). 23 As provided for in the Protection of the Environment Operations Act 1997 (NSW) s.219(2).
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Public participation Given difficulties faced by the government in utilising the criminal law for the purpose of law enforcement, wider standing provisions may assist the enforcement effort. Provision should be made for “any person” to instigate criminal enforcement, once they have obtained leave from the court to do so.
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CHAPTER 23 - CIVIL ENFORCEMENT Introduction This chapter will discuss the possibility of expanding the scope of civil enforcement for environmental offences in proceedings brought by both government and the community. Civil enforcement by government is a possible third form of enforcement. In Indonesia, there is only limited provision for access to the courts by government authorities that seek to enforce environmental obligations through civil proceedings. There are potential advantages in terms of consistency, predictability, transparency, openness and accountability if the courts, rather than the bureaucracy, have the power to impose more serious non-criminal sanctions. Private civil enforcement by citizen groups is an important supplement to enforcement by regulatory agencies. Indeed, it has been recognised even in developed countries, that as government often does not have the time or resources to provide sufficient enforcement, private enforcement will be necessary.1 For this reason further attention should be given to private civil enforcement in Indonesia. CIVIL ENFORCEMENT BY GOVERNMENT Concepts Civil enforcement, when available to a government authority, operates as an extension of its administrative powers. In some countries, such as the USA, there is a strong tradition of the government appearing as a civil plaintiff for the enforcement and implementation of a wide range of government functions. In AngloAmerican jurisdictions generally, civil action taken by government may include injunctive relief,2 a penalty or punitive damages, seizure of property, emergency powers and cost recovery.3 Also, a regulatory authority may require the intervention of the court to compel compliance with a particular order issued by the regulatory authority such as the initiation of a clean up or environmental rehabilitation. Thus, it can be seen that there are additional remedies available in civil law, which are not provided through criminal law or administrative sanctions. In the Anglo-American system, the closure of a factory would require a decision of the court. Typically, an environment protection authority is empowered to initiate an action for a temporary or permanent injunction and the courts are granted jurisdiction to order the cessation of an ongoing violation and require compliance. Once it is proven that there has been a breach of a legislative provision, the foundation for an injunction will have been provided and the court will exercise its discretion as to how it will require compliance. According to legal rules for the exercise of judicial discretion, the individual circumstances of each case must be taken into account by the court and weighed against the threat to the environment. The courts are required to balance the equities involved in determining whether to issue an injunction and determining what the limits will be. Factors to be considered are the technical feasibility of compliance, costs, the public importance of the violator’s operation and the potential threat to human health or the environment. Through utilisation of the court system there is a high level of transparency, as the hearing is public, there is open debate and the final is published.
1 Hence
the introduction in the USA of citizen suits that will be mentioned below. judicial order restraining a person from an action, or compelling a person to carry out a certain action. 3 These are the types of relief and forms of action that are authorised under the USA environmental statutes Wasserman C, Overview of Compliance and Enforcement in the United States: Philosophy, Strategies and Management Tools in International Enforcement Workshop Proceedings May 8-10, 1990, Utrecht, The Netherlands, Ministry of Housing, Physical Planning and Environment (VROM) pp.7-47 at p.20. 2A
Another advantage of the court’s involvement is that it provides for detailed management of the situation. It is common for courts to include in a grant of an injunction or consent orders, a detailed schedule of compliance. This will commit a violator to a course of action by a certain date. It can also state methodology such as testing, monitoring or written reports to evaluate the progress being made by the violator. An order granting an injunction may also include an order to restore the environment or clean up the environment to its original state. In doing so, the court will be required to consider the feasibility of the restoration, the financial ability of the violator and the environmental benefits of restoration. There is a school of thought that considers civil sanctions, rather than criminal sanctions, the most effective means for achieving deterrence in environmental law.4 This is because civil law has a less onerous burden of proof; rather than being required to prove an offence beyond reasonable doubt, an enforcement agency is merely required to make out a claim on the balance of probabilities. There is also a wider range of remedies in civil law, such as, injunctions, damages, and compensation. Corporate decision-making may view the threat of an injunction or a restoration order with greater concern than a financial penalty from criminal proceedings. This is because an injunction or restoration order may lead to ongoing financial losses. In addition, an amount awarded as compensation through civil proceedings may exceed any financial benefit gained by a company from the breach of environmental legislation. Another reason to favour civil enforcement is that legal action can be taken before environmental damage has occurred. In the Anglo-American system, the courts’ jurisdiction to punish for contempt where a court order has not been complied with is very wide and this is another reason why civil enforcement is favoured. Civil enforcement by government In Indonesia, the lack of provision for civil enforcement by government is similar to the situation in The Netherlands where the civil option is only available in limited circumstances and for limited purposes.5 Dutch environmental laws do not specifically authorise access by the government to the civil courts for enforcing statutes. The regulatory authorities can only use the civil courts under the same rights that are available to any private party such as in contract or tort. 6 In both the Netherlands and Indonesia, administrative enforcement tools are more wide ranging than in the Anglo-American system, and they include the power to prohibit certain activities as well as the ultimate sanction of shutting down a facility.7 The only mention in UU 23/97 of the government instituting civil proceedings for environmental protection is in article 37 entitled The Right of the Community and Environmental Organisations to Bring Legal Actions which: (1) grants the community the right to bring class actions (gugatan perwakilan) or report environmental problems to law enforcers, and “Developments in the Law. Corporate Crime: Regulating Corporate Behaviour Through Criminal Sanctions” (1979) 92 Harvard Law Rev 1227 (no author). 5 Van Zeben DJ and Mulkey ME, Choosing Among Criminal, Civil Judicial, and Administrative Enforcement Options – A Comparative Discussion of United States and Netherlands Experience in International Enforcement Workshop Proceedings May 8-10, 1990, Utrecht, The Netherlands, Ministry of Housing, Physical Planning and Environment (VROM) pp.397-415 at p. 398. 6 Some actions are addressed in this manner. The primary remedy has been the recovery of costs expended by the government in response to a negligent or tortious act of a polluter - Van Zeben DJ and Mulkey ME ibid at p. 403. 7 ibid. 4
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(2) goes on to state that: If it is known that the community suffers as a result of environmental pollution and/or damage to such an extent that it influences the basic life of the community, the government agency which is responsible in the environmental field can act in the community’s interest.
It is said in article 37(3) that further detail as to what is intended by subsection (2) is to be regulated by Government Regulation. This provision clearly requires more detail. Issues to be clarified include:
How will it be proved that environmental pollution and/or damage has developed to such an extent that it influences the basic life of the community? Which environmental agency can act in the community’s interest? What remedies can be sought by government? Can a community intervene in government proceedings or at least participate in the proceedings?8
Clarifying article 37 in UU 23/97 could provide the avenue for the introduction of civil enforcement by government in Indonesia. Obstacles to civil enforcement are caused by the inability of the court system in Indonesia to enforce a decision by way of contempt proceedings. When combined with the widely recognised problem of corruption in the court system and the absence of strong legal reasoning in judicial decision-making, it leads to the question, why resort to the courts when similar sanctions can be imposed administratively? In answer to this question, some of the advantages of civil enforcement may be pointed out as being the following:
Civil proceedings are a public contest (in the same way as a criminal prosecution) and thus bring a dispute out into the open and provide a level of transparency that does not exist in the imposition of administrative sanctions. A public court decision may have a greater deterrence effect than a privately negotiated administrative sanction. A successful outcome through the courts would be likely to lift the prestige and authority of the environmental agency that instituted the case. Through the court process, the imposition of a major sanction can be executed in an impartial manner, which may help to depoliticise a highly charged situation. As more proceedings are brought to court, judicial reasoning is likely to develop in relation to environmental cases and provide a level of predictability for the wider community. As framed, administrative sanctions do not include the imposition of a penalty or punitive damages, seizure of property and full cost recovery.
8 In USA, most
environmental statutes that authorise citizen enforcement suits also grant citizens the right to intervene in government enforcement proceedings. Even citizens with purely ideological concerns can participate in a case by filing nonbinding amicus curiae, or friend-of-the-court briefs setting forth their positions.
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COMMUNITY ACTIONS AGAINST VIOLATORS - LIABILITY TO PAY COMPENSATION AND/OR CARRY OUT CERTAIN ACTIONS Making out a claim UU 23/97 imposes an obligation to pay compensation for environmental pollution or damage and to carry out “certain actions”. Article 34(1) of UU 23/97 provides as follows: Every action, which infringes the law in the form of environmental pollution and/or damage which gives rise to adverse impacts on other people or the environment, obliges the party responsible for the business and/or activity to pay compensation and/or to carry out certain actions.
In the elucidation, the “certain actions” are said to be “legal measures” including “orders to install or repair a waste treatment facility, restore environmental functions, and to remove or destroy the cause of the pollution or damage”. If the action is successful, a court can also set a monetary penalty for every day in which ordered actions are delayed (art 34(2)). The elucidation states that this section is designed to implement the polluter-pays-principle. To successfully bring proceedings under article 34 for compensation or the carrying out of certain actions, it would need to be proved that: (a) a law has been infringed; (b) environmental pollution or damage has arisen as a result of the infringement; and (c) the environmental pollution or damage caused has given rise to adverse impacts on people or the environment (often known as “harm”). To receive compensation, the adverse impact needs to be quantified. To make out a claim, that “certain actions are required” it will be necessary to show why it is necessary to install or repair a waste treatment facility, restore environmental functions or remove or destroy the cause of the environmental pollution or damage. In relation to (b) above, proof of the cause of environmental pollution or damage may be difficult, particularly in already heavily polluted areas where there are multiple sources of pollution. If it is only necessary to prove pollution as legislatively defined, for example, in relation to an emission standard, this problem will not arise. If a plaintiff is able to refer to “standard environmental damage criteria,” the burden will also be reduced. In relation to (c) above, if a substance is non-toxic the harm may be temporary. However, it may contribute to the accumulation or regularity of harm that is the cause of long-term damage. Where pollution contains heavy metals or other toxic substances, it is likely to be difficult to prove the cause of “harm” for other reasons. It may be necessary to prove the fate of a substance in the environment, the conditions under which it is converted into substances that are more toxic, its bio accumulative quality, its persistence, its ability to relocate, or its impact on a particular species. There may also be scientific dispute on such matters. Proof of the causal connection between pollution and adverse impact on people or the environment causes further obstacles. It is often difficult for victims of pollution to obtain the necessary evidence to establish a scientific basis to their claim. The problem of proving that the pollution emanating from a particular source
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actually caused a specific condition, environmental damage or illness has been recognised as the greatest hurdle in toxic torts claims.9 In the UK, the plaintiff must show that the act or omission complained of was “probably a material cause although not necessarily the only one.” The fact that experts may not be able to identify the precise mechanism of causation does not preclude the court from making the inference, on all the facts that the defendant’s negligence materially contributed to the plaintiff’s injury.10 Rangkuti SS has called for an approach to be adopted that avoids the need to establish scientific detail such as dose effects. She refers to the approach adopted in Japan where a plaintiff is only required to prove:11 (a) discharges of the polluting agent preceded the outbreak of disease (b) where there was an increased exposure there was an increased occurrence of disease (c) areas of low pollution were associated with low prevalence (d) statistical inferences of causality are not contradicted by clinical or experimental evidence. To deal with such difficulties there could be a provision in the legislation to accommodate “likely” harm to cater for situations where alleged effects may be chronic or accumulative. The meaning of “likely” may then become the subject of judicial reasoning. In Australia it has been held to mean that there must be a “real chance” or “possibility” - not “more probable than not”.12 Financial Penalties Limited financial penalties can be imposed by the courts, as they are empowered through UU 23/97 (art 34(2)) to impose a compulsory monetary payment for every day of lateness in completion of certain actions. There is no guidance as to how this penalty is to be set. There is no provision for an environmental penalty in the sense of an assessment that acts as an incentive to comply with environmental requirements, for example, that reflects the true value of water or which is set marginally higher than the cost of installing pollution control equipment. Liability to “carry out certain actions” Injunctions are said to be the most powerful and flexible weapon in the armory of a court in environmental litigation.13 In the Anglo/American system, injunctions often take the form of a prohibitory injunction, that is, an order restraining the commission or continuance of some wrongful act or omission. In exceptional situations, a mandatory injunction may be granted requiring certain actions to be carried out.14 Whilst injunctions are available in common law - for actions in tort in private and public nuisance - they are not available in actions in negligence.15
9 Pugh
C and Day M, Pollution and Personal Injury Toxic Torts II Cameron and May London 1994 at p.59. p.60. 11 Rangkuti SS, Hukum Lingkungan Dan Kebijaksanaan Lingkungan Nasional, Airlangga University Press, Surabaya 1996 at p.267. 12 Jarasius v The Forestry Commission of New South Wales Hemmings J. Unreported LEC. 4 March 1988 where what was being considered was “likely to significantly affect the environment” in the context of the need for an environmental impact statement. 13 Pugh C and Day M, Pollution and Personal Injury Toxic Torts II Cameron and May London 1994 p.189. 14 Redland Bricks Ltd v Morris [1970] AC 652. 15 Miller v Jackson [1977] QB 966. 10 ibid
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In Indonesia, the provision in article 34(1) that obliges a violator to “carry out certain actions” may be compared to the court’s ability in other countries to grant an injunction. The elucidation of article 34 refers to orders to “remove or destroy the cause of the arising pollution and/or damage” and this could refer to prohibitory injunctions. There also seems to be provision for restoration to be ordered. The scope of article 34(1) is not, however, entirely clear and so it is not obvious whether UU 23/97 was drafted to allow the court to grant an injunction. In the Anglo-American system, where an action has been taken against a government or public authority in public law for breaching its statutory duty, an injunction is a remedy that is available in judicial review proceedings. Where, on the other hand, a statutory duty is imposed on a private person, an injunction will not always be available. Where the action is based on an interest in land, by analogy with nuisance, injunctive relief is likely to be available. Where it is based on personal injury, then the position is more akin to negligence and an injunction is not available.16 If this reasoning above is applied to law in Indonesia, an injunction may be available against a government official but not a private company unless the injunction is based on an interest in land. These sorts of issues have not been fully dealt with in Indonesia. Injunctions typically include interlocutory and final injunctions. An interlocutory injunction is an injunction granted to afford temporary relief to a plaintiff pending trial. The court must be satisfied that there is a serious issue as to whether a final injunction should be granted and that the balance of convenience favours the grant, for example, where the likelihood of serious environmental harm outweighs the damage to the defendant if the activity is restrained. Orders that commonly accompany the grant of an injunction in the Anglo-American system include: (a) compliance with a statutory requirement; (b) creation of a compliance schedule; (c) closure of a facility; or (d) restoration of a damaged site. It can be seen from the above that the exact scope of article 34(1) needs to be clarified. Class Actions (Gugatan Perwakilan) UU 23/97 makes provision for affected communities to bring civil legal actions by specifically providing for class actions. Article 37(1) provides: The community has the right to bring a class action to court and/or report to law enforcers concerning various environmental problems that inflict losses on the life of the community.
The elucidation says that a small group will have the right to represent a larger number of people in the community who have had losses inflicted on it, according to a basis of sameness of problems, legal facts, and demands which have given rise to because of environmental pollution or damage. In this way, UU 23/97 has established a particular right in regard to “environmental problems that inflict losses on the life of the community”. To date no regulations have been passed to establish the procedure to be followed in instituting a class action. In this regard the following questions arise:
16 Pugh C and Day M, Pollution and Personal Injury Toxic Torts II Cameron and May London 1994
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pp.190-1.
a. What characteristics should the “small group” possess? b. Through what process is the “large group” to be defined? What if someone does not want to be included in the large group, are they to have right to “opt out” or do they have to “opt in”? c. What is required to prove the “sameness” of an environmental problem? d. How is the sameness of legal facts and demands to be proved? e. Does the originating process have to identify the group members, specify the nature of the claim and the relief, as well as the questions of law and fact common to the claims of the group members? f. Is it necessary to name or specify the number of the group members? g. Is the constitution of the class action a preliminary issue to be approved by the court before preparing for the hearing? h. Is a class action only available for proceedings commenced pursuant to article 34. Experience from other jurisdictions points favourably to the utilisation of class actions in environmental law enforcement in Indonesia, however, further specification on these issues is needed. Strict liability in civil proceedings The civil code contains the principle known as tanggunggugat berdasarkan kesalahan, which is similar to liability based on fault in the Anglo-American system. Article 1365 provides: In regard to every illegal action that inflicts loss on another, the person who is at fault is required to provide compensation to those that sustain loss.
For a plaintiff to meet the requirements of article 1365,17 it will be necessary to prove that:18 (a) there was an illegal action; (b) the defendant is at fault; (c) financial loss or detriment was sustained by the plaintiff; and (d) there is a causal connection between the action and the plaintiff’s loss or detriment. To overcome difficulties posed by the proof of fault, UU 23/97 makes available the advantages of strict liability (tanggunggugat mutlak) to certain civil proceedings thereby making knowledge or intent irrelevant to establishing fault. Pursuant to UU 23/97, article 35 (1) it is provided that: The party responsible for a business and/or activity which gives rise to a large impact on the environment, which uses hazardous and toxic material, and/or produces hazardous and toxic waste, is strictly liable for losses which are given rise to, with the obligation to pay compensation directly and immediately upon occurrence of environmental pollution and/or damage.
The question arises as to what this actually means? In the elucidation it is stated that strict liability means that a person bringing an action for compensation need not prove the element of fault. Therefore, it would seem that it is only necessary to prove that an alleged act of pollution occurred as a result of the defendant’s activities. It is not necessary to prove any deliberation or intention; it is enough that the pollution has occurred as a natural consequence of the defendant’s acts. Thus, the defendant is also prevented from arguing in its defence an absence of fault.
17 This
section is based on s1401 BW of The Netherlands (article 6.3.1.1 NBW). SS, Hukum Lingkungan Dan Kebijaksanaan Lingkungan Nasional, Airlangga University Press, Surabaya 1996 p. 432. 18 Rangkuti
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Strict liability is available for abnormally dangerous or hazardous activities. Only businesses or activities which give rise to a “large impact” on the environment, which use “hazardous and toxic materials”, and/or which produce “hazardous and toxic waste” will be subjected to strict liability. According to the definitions section in UU 23/97, hazardous and toxic material is: every material which due to its nature or concentration, both directly or indirectly, can pollute and/or damage the environment, health, the combination of human life and of other living creatures.
Hazardous and toxic waste is “hazardous and toxic material that is the residue of a business and/or activity”. Examples that Koesnadi gives of such activities are:19 (i) (ii) (iii) (iv) (v) (vi) (vii)
industry that manufactures explosives or ammunition sites industry that produces dangerous and toxic material oil tankers petroleum industry earth moving waste management activities or industries that generally give rise to important impact concerning the environment.
Strict liability would therefore not necessarily be available for what may be considered relatively minor cases of industrial water pollution such as BOD or COD discharges. It would be useful to have a list of activities as industry that will be caught by the strict liability provision. An alternative to strict liability would be the shifting of the burden of proof. Under this approach, if sufficient evidence is adduced to prove that a wrongful action has been carried out, the burden of proof of causation shifts to the defendant to show that the highest degree of care was in fact used.20 This approach has been proposed within the context of the common law system; however, similar proposals have been made in Europe.21 In most jurisdictions in Europe, once a plaintiff has produced prima facie evidence of fault and causation, the court may shift the burden of proof to the defendant. Multiple Parties Environmental law in Indonesia has not addressed the issues that are likely to arise when there are multiple parties. What is to happen if one of the parties no longer exists? Are the remaining parties to be liable for the full amount, (joint and several liability), or is the total to be reduced proportionally (proportional liability)? The US experience with joint and several liability has been criticised as leading to “over deterrence” and producing unfair results where one or more polluters are insolvent or unavailable and the remaining polluter is held liable for the total damage. It also involves high administration costs due to cross claims and adversely affects insurability. There is inherent uncertainty in joint and several liability and on insurance
19 Koesnadi
H, Hukum Tata Lingkungan Gadjah Mada University Press 1999 at p.396 Krier JE, Environmental Litigation and the Burden of Proof in Malcolm and Page (eds) Law and the Environment, Walker Publishing Company, New York, 1970, p.119. 21 The European Commission White Paper proposes some form of the alleviation of the traditional burden of guilt (White Paper p.17) – Bergkamp L, “The White Paper on Environmental Liability” European Law Review April 2000 Vol. 9 No.4, pp. 105-114 and May 2000 No.5, pp.141-147 at p.110. 20
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grounds proportional liability is preferred.22 The Working Paper produced by the EC in November 1997 on Environmental Liability, however, envisages a “mitigated, joint and several liability” regime for situations involving multiple liable parties.23 If some form of joint and several liability is not introduced in Indonesia, a plaintiff will be unable to recover the full amount due to them, simply because one of the wrongdoing parties is unable to be joined to the proceedings. PRIVATE ACTIONS TO PROTECT THE ENVIRONMENT Legal standing (Hak Gugat) In UU 23/97, assistance was given to community groups to bring civil proceeding to protect the environment through the grant of legal standing to non-government organisations concerned with the protection of the environment. Article 38(1) states: In the scheme of implementing responsibility for environmental management consistent with the partnership principle, environmental organisations have the right to bring a legal action in the interest of environmental functions.
Thus non-government organisations are able to act in the name of the environment. Claims for compensation have been excluded from this right, presumably on the basis that compensation claims will be brought by an affected community through the vehicle of a class action. Legal standing is only granted to environmental organisations in regard to proceedings that seek an order that “certain measures be carried out” (article 38(2)). According to the elucidation, those measures appear to be quite limited and include: (a) An “application to the court for a person to be ordered to undertake certain legal actions which are involved with the goal of preservation of environmental functions”. Thus a NGO who is granted legal standing is able to commence proceedings seeking an order that a business or that a government authority take certain legal action to meet their environmental responsibilities. If a comparison is made with the Anglo-American system, this would appear to approximate an injunction. What is meant by “certain legal actions” is not clarified; for example, it is not made explicit whether or not this only a power to require positive action to be taken or whether it also includes a power to prohibit action. (b) An “order asserting that a person has carried out an action in infringement of the law because they have polluted or damaged the environment”. This would appear to be solely directed towards private entities and the remedy appears to be a declaration from the court. (c) An order “that a person which carries out a business and/or activity install or repair a waste treatment unit.” This would appear to be a more specific form of mandatory injunction and also appears to be directed towards private entities. It seems that through the operation of article 38, non-government organisations have access to both the general and administrative court system. Thus, they would be able to challenge a decision by government on the basis that the decision maker failed to take into account obligations imposed by environmental L, “The White Paper on Environmental Liability” European Law Review April 2000 Vol. 9 No.4 pp. 105114 and May 2000 No.5 pp.141-147 at p. 141. 23 Bergkamp L, “The White Paper on Environmental Liability” European Law Review April 2000 Vol. 9 No.4 pp. 105114 and May 2000 No.5 pp.141-147 at p. 141, citing Commission of European Communities, Working Paper on Environmental Liability, Brussels, 17 November 1997. 22 Bergkamp
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legislation, for example, if a government department failed to consider an AMDAL in the issuing of a licence. To qualify for legal standing, pursuant to section 38(3) and the elucidation, an organisation will have to prove to the court that: it is a legal body or foundation; the articles of association state clearly that the organisation was founded for the purpose of preservation of the environment; and activities consistent with its articles of association have already been carried out in support of the environment consistently with its articles of association. Broader community rights It is interesting to compare the class action and legal standing provisions in articles 37 and 38 of UU 23/97 to legislation which grants wider rights, such as the USA citizen suits and the Environmental Planning and Assessment Act 1979 (NSW) in Australia. A citizen suit enables the private enforcement of environmental controls against a violator through injunctions and in some cases financial penalties. In most US environmental statutes there is a “citizen suit” provision. Notably they are contained in specific national legislation dealing with the regulation of a specific environmental media. For example under the Federal Water Pollution Control (Clean Water) Act 1988 24 citizens can bring suits against private parties and the government for violations of sections regulating water pollution. The US Clean Air Act 1970 was the first federal environmental statute to provide for a citizen suit and is the underlying structure for citizen suit clauses in almost every other major piece of federal environmental legislation in USA. The citizen suit provision in the Clean Air Act provides:25 … any person may commence a civil action on his own behalf – 1) against any person (including (i) the United States and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of … (A) an emission standard or limitation under this chapter or (B) an order issued by an administrator or a State with respect to such a standard or limitation.
In some countries, the public can also sue for civil penalties, which are calculated to remove any significant economic benefit that resulted from non-compliance with an environmental statute. In Australia, the Environmental Planning and Assessment Act 1979 in New South Wales gives `open standing' to any person to approach the court to remedy or restrain any actual or anticipated breach of the Act. 26 It states (section 123): a.
Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
b.
Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
24 Section
505, 33 U.S.C. Section1365 (1988), U.S.C. 7604 (1970) 26 There is a similar provision under the Protection of the Environment Operations Act 1997 (NSW) ss.252 and 253. 25 42
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Unlike the Indonesian equivalent, this provision does not impose any conditions upon the grant of legal standing. It combines a grant of legal standing with the right to bring a class action. It does not require that a plaintiff act in a representative capacity. It also does not confine legal standing to certain organisations, nor does it restrict the remedies or the parties against whom proceedings may be commenced. CONCLUSIONS AND RECOMMENDATIONS Civil enforcement by government Discussion should be opened up on civil enforcement by government. Civil enforcement by government provides a possible third avenue for enforcement of environmental prohibitions and obligations. It has a number of potential advantages over both administrative sanctions and criminal prosecutions, which derive from the range of remedies that are available and the lower standard of proof. Community compensation claims Some difficulties caused for a community seeking to make a compensation claim derive from the statutory definition of pollution (discussed in relation to criminal enforcement); the lack of implementing regulations for the commencement of class actions; and the need for clarification of the sort of pollution or damage that will be caught by the strict liability provisions. Further consideration should be given to these aspects. Community claims for a defendant to “carry out certain actions” Clearer provision is needed regarding the meaning of the phrase “carry out certain actions”. For example, does it allow a community to seek an injunction and if so, what kind of injunction. Private actions to protect the environment Expansion of opportunities for civil enforcement by the community would offer alternative and supplementary forms of enforcement and may help to alleviate pressure on resources in environment agencies. Whilst legal standing has been granted to NGOs that fulfil certain conditions, it falls short of the broad legal rights that have been granted in some countries such as the USA and Australia where “open standing” is available. Open standing means that “any person” is able to approach the Court to remedy or restrain any actual or anticipated breach of environmental legislation, whether by government or a private entity. Consideration should be given to expanding legal standing at the national level. Clearer provision is also needed regarding the remedies that may be sought by a body exercising its right to legal standing. In particular, the availability of civil remedies against government is necessary to ensure legal accountability. UU 23/97 1997 lacks clarity regarding the circumstances in which community groups can make out a claim against a government body that has failed to fulfil an environmental obligation or duty.
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