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

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.