decision referred to a statement by a senior official describing the fires as “ … a threat to national development and a state emergency in 8 provinces” , to the Forestry Minister’ s offer of resignation and pending adminstrative sanctions being taken against forest concession holders.245 The activist stance adopted by the District Court of Medan in this case was not followed by the High Court of Northern Sumatra when the decision was subsequently appealed. The appellate court subsequently overturned the decision by the District Court, thus denying the claim for compensation.
to be inadequate249 with the discharged effluent from all factories clearly exceeding stipulated standards.250 The Team’ s findings prompted the district Regent to issue a final warning (SHULQJDWDQ NHUDV) to the industries to improve waste management. Despite subsequent assurances by industry to resolve the matter by negotiation, industry representatives failed to attend several meetings convened by regional government officials and denied any culpability in the pollution.251
The subsequent legal claim of the plaintiffs referred firstly to article 37 of the EMA 1997, which granted the communities “ ...a right to bring a class action to court...concerning various environmental problems which inflict losses on the life of the community.” The plaintiffs’ claim emphasised that the loss suffered by the “ class members” and the “ class representatives” was identical in nature, namely the pollution of the Way Seputih River, which had deprived all the plaintiffs of a livelihood and source of clean water.252 On the substantive matter of liability, the plaintiffs alleged that the pollution of Way Seputih River was contrary to the companies’
obligation “ ...to preserve the continuity of environmental functions and protect and combat environmental pollution and damage.”253 The actions of the three industries had thus “ ...given rise to adverse impacts on other people or the environment”254 resulting in an obligation to pay compensation and stop the discharge of any further waste pursuant to article 34. The plaintiffs also argued that, as the defendant industries had caused a “ large impact on the environment” , it was consequently strictly liable for any losses given rise to with the result that the plaintiffs were absolved of the burden of proving fault as would usually be the case. In any case, the unambiguous results of the investigation into the pollution by the 3URNDVLK Team, was sufficient, in the plaintiffs’ opinion, to establish the fact that the companies had in fact polluted.
249 All three factories lacked an instrument to measure the volume of discharged water contrary to Ministerial Decision KLH No.51/MENLH/10/1995, as well as a permanent tank for storage of waste.
250 As an illustration of variance in “ scientific” investigations, the results of this investigation may be contrasted with that of an investigation carried out in the same month by a 3URNDVLK Team from the provincial (Level I) government. The latter investigation did not find evidence to indicate that PT Ve-Wong had polluted the river and concluded that the factory’ s waste management unit was in functioning order and that the company had not in fact disposed of waste to the river since commencing production.
251 Whilst denying culpability two of the three defendants did offer “ voluntary assistance” in the form of construction of a place of worship, and assistance in reestablishing fish stock in the river.
252 To the credit of the legal representatives of the plaintiffs, the claim also provided a useful summary of the legal history, nature and elements of the class action mechanism which until recently has been unknown in Indonesian law.
253 art. 6, EMA 1997.
254 art. 34, EMA 1997
In comparison to the (NVSRQHQcase, the representative claim in this case complied more closely to the typical elements of a class action. The plaintiffs’ claim clearly specified the class members, class representatives and the common circumstances out of which the claim had arisen.
The representative nature of the claim was accepted by the District Court of Metro notwithstanding the absence of a specific procedure for representative actions. The Court rejected procedural objections by the defendants concerning the legal authority of the plaintiffs and the adequacy of representation and recognised that the 27 plaintiffs “ ...had the right to represent the interests of the class members” .255 The argument of the defendants that as only 11 of the 13 communities affected by pollution were represented (2 communities had withdrawn from the action) the class representation was inadequate and therefore inadmissible was also rejected by the Court. On this point, the Court, ruled that the 11 villages were entitled to bring an action themselves and did not require representation from the remaining 2 villages as they were not puporting to act on their behalf.
Ultimately, however, the plaintiffs’ suit was defeated on procedural grounds of a different nature. In a surprising decision, the Court held that the plaintiffs’ application was procedurally defective, as it had failed to include the regional government, represented by the provincial and regency level Environmental Impact Agencies, as defendants in its claim. The Court referred to several provisions in concluding that it was these agencies, which held legal responsibility for environmental monitoring and so should properly be included in any legal action relating to environmental matters. The conclusion of the Metro District Court on this point may be criticised on several grounds. The legal suit in this case did not address the issue of environmental monitoring generally, but rather the specific, private law matter of the damage caused to the plaintiffs by the defendants alleged actions contrary to law. The issue was, therefore, a matter of private rather than public law, notwithstanding the use of the class action mechanism. There thus seems to be no legal basis for compelling the plaintiffs to sue public agencies when they are simply seeking to enforce their private interests. It should not have been incumbent upon on the plaintiffs, as private citizens, to take the time consuming and expensive step of suing public agencies and compelling performance of their public duties. Whilst the latter action would be open to the plaintiffs, it should properly be a matter of choice and not a prerequisite for the enforcement of private rights. There are also numerous precedents where communities have
255 "Way Seputih River," ed. Lukman et al (District Court of Metro: No. 04/Pdt.G/2000/PNM., 2000).
brought legal actions against polluting companies without involvement of government agencies as defendants.256 In any event, the reasoning adopted by the court seems inadequate grounds upon which to defeat an entire action. If the Court was of such an opinion, it is difficult to fathom why it did not instruct the plaintiffs at an earlier stage, inviting appropriate revision of the plaintiffs claim.