Buyat Case: Has the pendulum really swung to the environment?<\/p>\n
Andri G. Wibisana, Maastricht, Netherlands<\/p>\n
Todung Mulya Lubis has written in this newspaper an
\ninteresting article on the Buyat Bay pollution case. However,
\nthere are some issues alluded to by the author that have prompted
\nme to write a response.<\/p>\n
Compared to other cases, so he argues, recent development of
\nthe Buyat Case shows that environmental protection is given more
\nweight relative to the needs for economic growth.<\/p>\n
Furthermore, the author also mentions that this situation should
\ncarefully be undertaken within the framework of traditional burden
\nof proof, by means of which the government has the onus to prove
\nthat Buyat Bay has been polluted and that PT Newmont Minahasa Raya
\n(NMR) has caused this pollution.<\/p>\n
Contrary to the author's statement, I would argue that it is
\ntoo early to state that, \"the pendulum has swung toward
\nenvironmental management.\"<\/p>\n
Conversely, so far the case has shown how the government has
\nnot given proper consideration to human health and environmental
\nprotection. We could refer this situation to the fact that
\nSubmarine Tailing Disposal (STD) still goes on regardless of
\nnumerous opposition from the community, individuals and
\nenvironmental NGOs. In this regard, Prof. Emil Salim, for
\nexample, at the meeting of the World Bank Extractive Industries
\nReview (EIR) last year stated that such tailings clearly degrade
\nthe marine and coastal environment. (The Jakarta Post, April 28,
\n2003).<\/p>\n
In my point of view, such opposition is by no means unsound,
\nsince tailing disposal very likely creates serious environmental
\nproblems and there is a high level of uncertainty concerning its
\nsafety.<\/p>\n
In addition, one could also argue that while it is clear that
\nthe society and the environment should bear the costs from the
\nmining activity, it is unclear whether the benefits from this
\nactivity will be reaped by the society, at least to the level
\nthat is equal to the costs it incurs. Thus, the statement arguing
\nthat there is a tension between the need for economic growth and
\nthe need for environmental protection, is still highly debatable.<\/p>\n
In fact, we have to be careful with this statement since the
\nterm of \"economic growth\" is very likely to be used to promote
\nthe interests of a few people at the expense of decreasing human
\nhealth and environmental quality.<\/p>\n
Only recently has the government reacted to the public outcry
\nfollowing a \"strange\" disease allegedly resulting from the
\nconsumption of fish from the polluted bay. The reaction was very
\nlate, because modern environmental policy is always marked by
\nearly anticipation.<\/p>\n
Such a policy is primarily aimed at dealing with threats of
\ndamage that are considered serious or irreversible, and hence it
\nobliges the preventive measures to be taken, although there is
\nstill scientific uncertainty as to whether the threats will
\nmaterialize.<\/p>\n
Furthermore, contrary to Lubis' statement, the government does
\nnot automatically have the burden to prove. This is consistent
\nwith a principle of environmental law, namely the precautionary
\nprinciple. Certainly, the court should deliberately consider the
\nuse of this principle in its ruling.<\/p>\n
This principle, initially emerged from the German principle of
\n\"Voorzorgeprinzip\", has been recognized in Principle 15 of the
\nRio Declaration. Since then, the principle has been included in
\nevery recent treaty and policy document pertaining to the
\nprotection and preservation of the environment. The principle
\nstates that where there is a threat of irreversible and serious
\ndamage, the lack of full scientific certainty shall not be used
\nas a reason to postpone any preventive measure.<\/p>\n
This statement obviously embeds a shift in the onus of proof
\nto the proponent of an activity, in the sense that preventive
\nmeasures should be taken regardless of the uncertainty
\nsurrounding the impacts of the activity.<\/p>\n
Therefore, those who have the power, control and resources to
\nact and prevent harm, should bear a responsibility, which could
\ninclude a financial responsibility and the duty to monitor, to
\ninform the public and authorities, and to act upon the potential
\nimpact. In the Buyat case, it is NMR that is in a better position
\nto acquire information concerning its own activities and take
\naction accordingly, and not the general public, namely the
\ngovernment.<\/p>\n
Recent developments in the Buyat-NMR case also shows that
\nscientists are not entirely objective. Using different testing
\nmethods, for example, they can, in good faith, have different
\nopinions. Most importantly, they can also have different results
\ndepending on whom they are working for. Hence, in this case, we
\nare encountering the question of which experts we should trust.<\/p>\n
Clearly, the court has a very difficult task. However, the use
\nof the precautionary principle could ease such a difficult task,
\nsince by using the principle, the evaluation will give emphasis
\non the question of whether NMR had taken preventive measures to
\navoid the pollution. Accordingly, NMR has to prove, for example,
\nthat its tailings, did indeed end up in the position that NMR
\nexpected in its environmental impact assessment (EIA). Failing to
\ntake such measures will result in liability.<\/p>\n
In addition, it is also no longer valid to argue that NMR has
\nacted according to existing environmental regulations by showing,
\nfor example, that its EIA had been approved by the authorities.
\nInstead, from article 35 of Act No. 23 of 1997 we can infer that
\nthe term \"damage\" should also attributed to something that was a
\nresult of lawful acts.<\/p>\n
Finally, it is worth mentioning that the precautionary
\nprinciple should also be used in other decisions involving
\nirreversible and serious harm to the environment. In a complex
\nand difficult issue as such environmental pollution, liability
\nrules sometimes do not work effectively to hold the perpetrator
\nliable to pay for the damage it causes, either because it is hard
\nto prove the word -- pollution -- or it hard to lay the blame on
\na certain party. It is also difficult because it is quite
\npossible that nobody can fully compensate for the irreversible
\ndamage.<\/p>\n
In this case, an ex ante preventive regulation may work more
\neffectively to induce the potential perpetrator to take the
\noptimal level of care and thus to fully internalize the potential
\nenvironmental costs it causes. The precautionary principle hence
\nteaches us that in the face of irreversible damage, a risk averse
\nattitude is more desirable.<\/p>\n
The writer is a lecturer in environmental law at the
\nUniversity of Indonesia, and is working toward his PhD at the
\nUniversity of Maastricht, the Netherlands. He can be reached at
\nmragw@yahoo.com.<\/p>",
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