Buyat case: Economic growth versus environment

Buyat case: Economic growth versus environment

Todung Mulya Lubis, Jakarta

The Buyat Bay case reflects the never ending tension between
the concept of economic growth on the one hand and that of
environmental management on the other. This is a classical
tension that can never be satisfactorily resolved, although
people have, on many occasions, talked about the concept of
sustainable development, which is, in essence, the blend of
economic growth and environmental management.

It must be admitted, however, that this concept of sustainable
development is yet to be fully accepted on the ground.
Operational interpretation of this concept is always in conflict
with reality, which is, unfortunately, not always in tune with
the concept of sustainable development. This is particularly so
in developing countries engaged in the pursuit of high rates of
economic growth, though eventually at the expense of
environmental management.

The ratification of Government Regulation in Lieu of Law No.
I/2004, for example, allows mining in protected forests. The
Indonesian government argued that it feared it would be sued in
an international court of arbitration if it prevented mining
companies from pursuing their operations in protected forests.
Although, obviously, the concept of economic growth played a
dominant role in all of this.

In favor of and in the name of foreign investment, which will
bring in capital and foreign exchange, the government gave
permits to mining projects in protected forests even though they
violated the prevailing laws.

The Buyat Bay case shows that the pendulum has swung toward
environmental management, as evident from the conclusion that the
police have arrived at to the effect that Buyat Bay, as a number
of environmental organizations have alleged, has been
contaminated.

This alleged contamination by PT Newmont Minahasa Raya has
been blown up in such a way by the media so that this
contamination, if it is true, has become the sole responsibility
of PT Newmont Minahasa Raya.

In fact, there are also illegal miners with little awareness
of the environment operating in this area. I am not saying that
these illegal miners are responsible for the contamination of the
bay but it is only fair, I think, if we carefully calculate the
contribution of all parties involved in this contamination case.

Unfortunately, reports about the contamination of Buyat Bay,
particularly after the release of a report compiled by a
technical team from the Office of the State Minister for the
Environment, has directly implicated PT Newmont Minahasa Raya as
the culprit in this contamination.

It is only proper, therefore, that the government, despite
the fact that it will still have to verify this allegation by
involving many of its agencies, should file a lawsuit against PT
Newmont Minahasa Raya. Such a lawsuit is a logical next step that
must be pursued. This case, clearly, should not be given room for
an out-of-court settlement.

I believe that taking the Buyat Bay case to court is a sound
development. We need a court ruling that will truly be the fruit
of a smart, careful and fervent legal fight. With the support of
strong and accountable scientific and theoretical evidence, the
government must present to the court this environmental
contamination.

The published findings of the technical team about the
contamination of Buyat Bay must be put to the test during the
trial. The government has the burden of proof and it is here that
this legal fight is expected to provide us with a standard
reference for future environmental cases.

It is also required of PT Newmont Minahasa Raya that it should
counter the government's burden of proof and put up a legal
defense against all charges.

Various studies conducted by the World Health Organization
and the Commonwealth Scientific Industrial Research Organization
also need the support of smart scientific evidence. It is during
the legal fight in the court of law that "truth" will be put to
the test, of course with reference to the prevailing
international standards and jurisprudence. In this context, this
legal fight should open up all avenues for proving the case,
including summoning experts from home and abroad.

Arguments of the broadest scope possible must be allowed and
constraints based on technical and procedural grounds must not be
allowed to emerge.

These constraints could include, for example, the refusal to
hear statements from foreign experts or to accept and consider
affidavits. I suggest that in the court proceedings, all such
constraints be removed.

If the two parties can fight it out in the court of law by
exerting their best and with great fervor, and if the judges can
smartly learn from this case, we can remove the perplexity on the
part of the public, who seem to fail to understand the
government's lack of firmness in its attitude and its wavering
stance.

Just take a look at what the Office of the State Minister for
the Environment did with the release of two different reports on
the same case. Was the environmental contamination standard
adopted by the former state minister different from those of the
new state minister?

Look at the conflicting statements several ministers made
before the technical team released its report. Look at the
critical note on the report given by one government agency. It
sounds like dissenting opinions. All this simply proves that the
fight is still far from over for us in our formulation of
policies on environmental affairs.

It is only proper that all parties involved should restrain
themselves and refrain from politicizing the Buyat Bay case. Let
the judges make their ruling and let the parties involved and
their lawyers fight with great fervor. Only then may we hope to
see a court ruling that will serve as a standard reference for
solving environmental problems in future.

There may be some conventional wisdom that will ease the
classical tension between economic growth and environmental
management. Perhaps there will be a better and more definitive
understanding about what is called sustainable development, a
concept allowing room for all parties -- the government,
businesspeople, civil society and the public -- to grow together
in peace.

The writer is a partner at Lubis, Santosa & Maulana
law firm