Indonesia is again facing a forest fire crisis. Toxic haze from wildfires in Sumatra and Kalimantan islands is reaching neighboring Malaysia, Singapore, Brunei, and Thailand, affecting hundreds of thousands of people with respiratory illness, and paralyzing businesses, shipping, aviation, as well as forcing schools to close down.
This recurring problem started in the 1990s when Indonesia began large-scale land licensing for plantations and forestry industries. Since then, at the peak of each dry season, almost all provinces in Sumatra and Kalimantan have been engulfed in thick smoke.
According to the National Disaster Management Agency (BNPB), since the beginning of the year, more than 328,700 hectares have already been lost to flames. The area is the size of Germany
The crisis is already resulting in diplomatic tensions between Indonesia and its neighbors, although it is not yet as tragic as the situation in 2015, when forest and land fires raged through 2.6 million hectares, leading to an estimated 100,000 premature deaths due to air pollution.
Most of the seasonal fires in Indonesia are due to land clearing for agriculture. Burning forest and peatlands is the cheapest and easiest method, and although it has been prohibited and legal and policy instruments have been established to prevent the recurrence of similar disasters, it appears they are largely ignored, even by the government itself.
The government failed to deliver on its “prevention of harm” obligations by issuing land use permits without considering the nature of the ecosystem. In many cases, companies had been smoothly permitted to clear peatlands, which are not only highly flammable but also store vast amounts of carbon, causing enormous emissions if burned.
Burning forest and peatlands is the cheapest and easiest method, and although it has been prohibited and legal and policy instruments have been established to prevent the recurrence of similar disasters, it appears they are largely ignored, even by the government itself.
Pahrur Dalimunthe
Although some 99 percent of forest fires are caused by human activities – as cited by BNPB, the police and the Environment and Forestry Ministry – law enforcement remains too weak to have a deterrent effect. In most cases, only individual arsonists have been captured, while the corporations on behalf of which they acted faced no charges. The principle of strict liability – without the need to prove corporate fault or criminal intent – has been neglected, leaving companies unaccountable for fires in their concessions.
Although corporate criminal liability is accommodated by Indonesia’s environmental law, in this year’s fires charges have been pressed against 250 individuals and only five corporations.
Companies are not even properly supervised, despite strict and tiered government supervision mechanisms. Some 97 minimum obligations for forest fire prevention must be fulfilled by plantations and 122 by forestry companies, with each of them also required to regularly report on their environmental control activities.
Although not a single company has fulfilled these requirements, local governments still allowed them to operate without facing consequences.
Another problem is the misguided budget allocation. Every year, Indonesia allocates hundreds of billions of rupiah to several institutions – the Environment and Forestry Ministry, BNPB, Meteorology, Climatology and Geophysical Agency (BMKG), Peatland Restoration Agency (BRG) and local governments – to deal with forest fires. Sadly, the funds have been used mostly for firefighting rather than prevention and providing infrastructure for land clearing without burning.
Moratoria on converting primary forest and peatlands for oil palm plantations, pulpwood and logging concessions, which have been issued since 2012, are ineffective. Licensing remains marred by corruption. In 2018, the government itself issued a permit for a palm oil company in Buol, Sulawesi, which had earlier been charged by the country’s antigraft agency with corrupting officials in the licensing process.
The government also does not follow court recommendations. When in 2016, residents of West Kalimantan sued President Joko Widodo for the 2015 fires, a Supreme Court verdict obliged the government to create a task force to review business licenses, strengthen civil and criminal law enforcement against forest burners, set up hospitals providing free treatment for victims affected with respiratory illness due to toxic haze and smoke, map vulnerable forest areas, and make public the permit owners of land that has been set on fire. Until today, these obligations have not been fulfilled.
Announcing to the public at whose concessions fires occur is particularly important for holding them accountable. Strict legal action, both criminal and civil, must also be taken against all corporations involved. Their permits need to be reviewed, and revoked if they are found guilty of noncompliance with environmental obligations.
The government does not need to fear that investment will decrease. The “California effect” shows that strict environmental regulation and law enforcement do not drive back investors, but rather allows them to flourish as they have more legal certainty in running their businesses.
– Pahrur Dalimunthe is an environmental lawyer and managing partner at DNT Lawyers in Jakarta.
