HOW TO RESOLVE ENVIRONMENTAL DISPUTE IN INDONESIAN LAW
“Environmental dispute settlement can be reached through the Court or out of Court”
In some cases related to environmental dispute, Corporations are the most dominant subject as the perperator of the decreasing environmental quality in particular region or community. This condition cannot be separated from the corporation’s activity in exploiting large amount of natural recources as one of the production factors to support the operations, which, direct or indirectly, can affect the surrounding community. This can certainly lead to the dispute between corporations and community.
In case of environmental dispute, its dispute settlement process is regulated under Law No. 32 of 2009 on Environmental Protection and Management (UUPPLH), in Article 1 number 25 (UUPPLH) regulates:
“Environmental dispute is dispute between two or more parties arising from activity which has the potential and/or has the impact on environment.”
Furthermore, Article 84 UUPPLH regulates:
- Enrivonmental dispute settlement can be reached through the Court or out of Court.
- Method of environmental dispute settlement shall be chose voluntarily by the parties in dispute.
- Lawsuit through the Court may only be made if the dispute settlement out of Court is declared unsuccessful by one or all of the parties in dispute.
From the provisions above, it can be concluded that environmental dispute settlement is voluntary and encouraging the alternative dispute settlement out of the court, meaning that the parties in dispute may choose environmental dispute settlement through the Court or out of Court. The dispute settlement through the Court may only be made if the out of court settlement (mediation) has been done and failed to resolve the dispute.
The objective of the out of court environmental dispute settlement is reaching an agreement between the parties in dispute, as stated in Article 85 UUPPLH:
- Form and amount of the compensation;
- Recovery action due to the pollution and/or destruction;
- Specific action to make sure there is no reccurence of pollution and/or destruction; and/or;
- Action to prevent negative impacts on the environment.
This out of court dispute settlement method may request assistance of other parties, such as mediator and/or arbitrator (either an ad-hoc arbitrator or institution such as Indonesia National Arbitration Board).
Meanwhile, dispute settlement through the Court or litigation may be done through three paths, namely civil lawsuit and criminal prosecution to the Public court, as well as administrative lawsuit to the Administrative Court (Pengadilan Tata Usaha Negara/PTUN).
These three paths are determined based on elements of unlawful act of the environmental dispute. Civil lawsuit is filed in the public court, if the unlawful act done in the environmental dispute causes harm to others, or damage the environment, or unlawful act is considered not a crime, or those unlawful acts are not covered in provisions under Chapter XV on Criminal Sanctions of UUPPLH.
As for the dispute settlement through criminal procedure in the public court, it is done only if the unlawful act is deemed as a crime under provisions of Chapter XV on Criminal Sanctions of UUPPLH.
Administrative lawsuit is related to the administrative issues regarding to the environmental decisions issued by officials. Administrative lawsuit may be filed only if:
- State administrative bodies or officers issuing environmental licenses to business and/or activities that require EIA (Environmental Impact Analysis) but not equipped with EIA documents;
- State administrative bodies or officers issuing environmental licenses for UKL-UPL (Environmental Management Efforts and Environmental Monitoring Efforts) compulsory activities, but not equipped with UKL-UPL documents; and/or;
- State administrative bodies or officers issuing business and/or activities licenses which are not equipped with environmental license.
Thus, if there are issued licenses related to environment issued by officials which do not fulfil the requirement, the cancellation request may be made through administrative lawsuit.
Based on explanation above, when the corporation deals with environmental dispute, it is important to understand the process of dispute settlement, if it is done through out of court, or litigation, and whether the problem is deemed as a crime, civil, or administrative. It is necessary for the corporation to examine thoroughly so there is no error in determining a method of environmental dispute settlement.
We hope this article is useful.
BP Lawyers can assist you
BP Lawyers can assist you in providing best solution for environmental dispute settlement, whether out of court (non-litigation) or through the court (litigation) in public court or state administrative court. You can contact us via:
Dalmy Nasution, S.H.