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Will a new Indonesian law make it harder to punish firms for haze-causing fire?

A sweeping new law passed last week in Indonesia may make it easier to prosecute subsistence farmers for using fire to clear small plots of land.

A wide-ranging deregulation bill passed in Indonesia this week downgrades a key legal provision used by authorities to sue plantation firms for the fires that spread across the nation’s peatlands almost every year, blanketing Indonesia and its neighbors in a choking haze.

At the same time, the new law also extends a ban on using fire to clear land to subsistence farmers, making it easier to criminally charge Indigenous people for traditional slash-and-burn practices.

The changes have long been on the agenda for Indonesia’s plantation lobby. In 2017, industry groups asked the nation’s highest court to strike down rules holding companies strictly liable for fires that occur on their land and exempting farmers who act in accordance with “local wisdom” from the ban on using fire.

The groups behind the lawsuit quickly withdrew it, claiming they needed more time to study the rules, but not before declaring they would challenge them again in the future.

“This is a violation of [the] constitutional rights of Indigenous Peoples,” Rukka Sombolinggi, secretary-general of the Indigenous Peoples Alliance of the Archipelago, known by its Indonesian acronym AMAN, said in an email this week in response to questions about the deregulation law. “This will put Indigenous Peoples who are still practicing traditional farming at risk from criminalisation.”

The new law, known as the Job Creation Act, amends some 1,200 provisions in more than 75 existing laws. President Joko Widodo’s administration has framed it as necessary to boost investment in a country hard-hit by Covid-19, though it slashes workers rights and environmental safeguards in a nation with one of the highest rates of forest loss in the world.

This is a violation of [the] constitutional rights of Indigenous Peoples. This will put Indigenous Peoples who are still practicing traditional farming at risk from criminalisation.

Rukka Sombolinggi, secretary-general, Indigenous Peoples Alliance of the Archipelago

Tens of thousands of workers took part in a national strike this week against the deregulation law, while hundreds were arrested in street protests that the police tried to block from going ahead, citing coronavirus fears.

Among other things, the new law overhauls a variety of land-use planning and licensing processes, transferring broad powers over development projects from regional authorities to Jakarta in a reverse of the “big-bang” decentralisation programme put into effect after the dictator Suharto fell from power in 1998.

That year, Indonesia experienced one of the greatest wildfire outbreaks in recorded history. It was largely the result of a government-backed programme to drain and dry the nation’s vast peat swamp zones — leaving the soil highly flammable — so that they might be used for agriculture.

In the two decades since, peatland drainage has only grown more widespread, done primarily by palm oil and timber companies who dig canals through the peat to manage water levels across vast monoculture estates.

Meanwhile, burning is the cheapest way to clear land for planting, and in Indonesia, small farmers and big investors alike are known to do it with gusto, never mind the legal details.

As a result, uncontrolled wildfires have become a near-annual occurrence. Last year, according to government figures, they burned an area half the size of Belgium, mostly on the islands of Sumatra and Borneo, and churned out nearly twice as much carbon dioxide as the more widely publicised Amazon fires of 2019.

As the government has sought to crack down on illegal burning, plantation firms have argued that the strict liability concept, enshrined in both the 1999 Forestry Act and the 2009 Environment Act, unfairly holds them accountable for blazes that occur on their land, whether they are responsible for causing them or not.

An earlier version of the deregulation bill would have downgraded the strict liability concept in both of those laws. Following widespread criticism that the changes would hamstring authorities in the fight against haze, only the strict liability provision in the 2009 law was altered to be more lenient to companies.

That amendment deletes the phrase “without the need to prove fault” from Article 88 of the 2009 Environment Act, which previously read: “Anyone whose actions, business or activity…causes a serious threat to the environment shall be absolutely responsible for the incurred losses without the need to prove fault.”

Jasmin Ragil Utomo, the director of civil litigation at the Ministry of Environment and Forestry, declined to comment on the amendment when contacted by Mongabay. But Bambang Hero Saharjo, an expert in fire forensics who often serves as the ministry’s chief expert witness in court cases against companies accused of causing fires, said in a text message that the phrase was “very much still needed.”

Though the essence of a similar provision in the 1999 Forestry Act was left intact, an academic manuscript attached to the deregulation law contains an argument against strict liability that could potentially be used by plantation interests to challenge the concept in court, according to Reynaldo Sembiring, executive director of the Indonesian Center for Environmental Law.

“My biggest concern is the potential transfer of the burden of legal liability from the forest-burning corporation to the community,” he wrote in an email this week.

“So far, we know that forest-burning corporations quite often defend themselves by blaming fires on the actions of local communities or claiming the fires originate from community lands. In addition, of course, the potential for criminalisation [of small farmers] will also increase.”

Even before the deregulation bill, authorities struggled to enforce the law against companies accused of burning land or negligently letting fires spread out of control.

Since 2015, the environment ministry has taken 17 companies to court in fire cases, winning nine of them with combined fines of 3.15 trillion rupiah ($231 million). But only one company has actually paid its fine, with others successfully resisting attempts to collect through a variety of legal maneuvers.

Jasmin told Mongabay in February that the ministry was planning to sue five companies, and possibly up to 16, over the 2019 fires. Criminal charges were also said to be on the table.

At the same time, dozens of small farmers, many of them Indigenous Dayak people from Borneo, have been criminally charged by local prosecutors over last year’s fires, with many sentenced to months or even years in prison under the 1999 Forestry Act, the 2009 Environment Act and the Criminal Code, as President Joko Widodo urges the police and military to clamp down on haze at all costs.

The deregulation bill does insert a new Article 50A into the 1999 Forestry Act, which renders forest-dwelling or adjacent people subject to administrative sanctions rather than criminal ones for the offense of “burning forests,” or even none at all provided they are registered as Indigenous with the government or have already been subject to a “customary” sanction from their own tribe.

Even so, the 2009 Environment Act prescribes “clearing land by burning” as a criminal offense punishable by up to three years in prison — a provision made all the more amenable to prosecutors with the removal of the local wisdom exemption from that same law which previously allowed farmers to burn up to 2 hectares (5 acres) of cropland, provided they took certain precautionary measures such as digging a firebreak and notifying the village chief.

“It is very sad if Article 69, paragraph 2 is removed,” said Bambang, referring to the local wisdom provision in the environment law, “because it is tantamount to eliminating the respect for Indigenous peoples through local knowledge that they are proud of today.”

This story was published with permission from Mongabay.com.

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