Buyat Case: Has the pendulum really swung to the environment?

Andri G. Wibisana, Maastricht, Netherlands

Todung Mulya Lubis has written in this newspaper an interesting article on the Buyat Bay pollution case. However, there are some issues alluded to by the author that have prompted me to write a response.

Compared to other cases, so he argues, recent development of the Buyat Case shows that environmental protection is given more weight relative to the needs for economic growth.

Furthermore, the author also mentions that this situation should carefully be undertaken within the framework of traditional burden of proof, by means of which the government has the onus to prove that Buyat Bay has been polluted and that PT Newmont Minahasa Raya (NMR) has caused this pollution.

Contrary to the author's statement, I would argue that it is too early to state that, "the pendulum has swung toward environmental management."

Conversely, so far the case has shown how the government has not given proper consideration to human health and environmental protection. We could refer this situation to the fact that Submarine Tailing Disposal (STD) still goes on regardless of numerous opposition from the community, individuals and environmental NGOs. In this regard, Prof. Emil Salim, for example, at the meeting of the World Bank Extractive Industries Review (EIR) last year stated that such tailings clearly degrade the marine and coastal environment. (The Jakarta Post, April 28, 2003).

In my point of view, such opposition is by no means unsound, since tailing disposal very likely creates serious environmental problems and there is a high level of uncertainty concerning its safety.

In addition, one could also argue that while it is clear that the society and the environment should bear the costs from the mining activity, it is unclear whether the benefits from this activity will be reaped by the society, at least to the level that is equal to the costs it incurs. Thus, the statement arguing that there is a tension between the need for economic growth and the need for environmental protection, is still highly debatable.

In fact, we have to be careful with this statement since the term of "economic growth" is very likely to be used to promote the interests of a few people at the expense of decreasing human health and environmental quality.

Only recently has the government reacted to the public outcry following a "strange" disease allegedly resulting from the consumption of fish from the polluted bay. The reaction was very late, because modern environmental policy is always marked by early anticipation.

Such a policy is primarily aimed at dealing with threats of damage that are considered serious or irreversible, and hence it obliges the preventive measures to be taken, although there is still scientific uncertainty as to whether the threats will materialize.

Furthermore, contrary to Lubis' statement, the government does not automatically have the burden to prove. This is consistent with a principle of environmental law, namely the precautionary principle. Certainly, the court should deliberately consider the use of this principle in its ruling.

This principle, initially emerged from the German principle of "Voorzorgeprinzip", has been recognized in Principle 15 of the Rio Declaration. Since then, the principle has been included in every recent treaty and policy document pertaining to the protection and preservation of the environment. The principle states that where there is a threat of irreversible and serious damage, the lack of full scientific certainty shall not be used as a reason to postpone any preventive measure.

This statement obviously embeds a shift in the onus of proof to the proponent of an activity, in the sense that preventive measures should be taken regardless of the uncertainty surrounding the impacts of the activity.

Therefore, those who have the power, control and resources to act and prevent harm, should bear a responsibility, which could include a financial responsibility and the duty to monitor, to inform the public and authorities, and to act upon the potential impact. In the Buyat case, it is NMR that is in a better position to acquire information concerning its own activities and take action accordingly, and not the general public, namely the government.

Recent developments in the Buyat-NMR case also shows that scientists are not entirely objective. Using different testing methods, for example, they can, in good faith, have different opinions. Most importantly, they can also have different results depending on whom they are working for. Hence, in this case, we are encountering the question of which experts we should trust.

Clearly, the court has a very difficult task. However, the use of the precautionary principle could ease such a difficult task, since by using the principle, the evaluation will give emphasis on the question of whether NMR had taken preventive measures to avoid the pollution. Accordingly, NMR has to prove, for example, that its tailings, did indeed end up in the position that NMR expected in its environmental impact assessment (EIA). Failing to take such measures will result in liability.

In addition, it is also no longer valid to argue that NMR has acted according to existing environmental regulations by showing, for example, that its EIA had been approved by the authorities. Instead, from article 35 of Act No. 23 of 1997 we can infer that the term "damage" should also attributed to something that was a result of lawful acts.

Finally, it is worth mentioning that the precautionary principle should also be used in other decisions involving irreversible and serious harm to the environment. In a complex and difficult issue as such environmental pollution, liability rules sometimes do not work effectively to hold the perpetrator liable to pay for the damage it causes, either because it is hard to prove the word -- pollution -- or it hard to lay the blame on a certain party. It is also difficult because it is quite possible that nobody can fully compensate for the irreversible damage.

In this case, an ex ante preventive regulation may work more effectively to induce the potential perpetrator to take the optimal level of care and thus to fully internalize the potential environmental costs it causes. The precautionary principle hence teaches us that in the face of irreversible damage, a risk averse attitude is more desirable.

The writer is a lecturer in environmental law at the University of Indonesia, and is working toward his PhD at the University of Maastricht, the Netherlands. He can be reached at mragw@yahoo.com.