The many faces of strict liability in Indonesia's wildfire litigation

• Author: Andri G. Wibisana
• Published date: 01 July 2019
• DOI: http://doi.org/10.1111/reel.12284
• Date: 01 July 2019

RECIEL. 2019;28:185–196.    

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1 | INTRODUCTION

The Indonesia n government has bee n criticized for it s inability to

prevent and contro l forest and peatland fire s. Scholars have argued

that annual fir es in Indonesia are indic ative of a lack of effective law

enforcement and poor government responses to peatland degrad-

ation. Tan, for exampl e, argues that in t he context of inter national

law, the haze caused by In donesia's fires c onstitutes a vio lation of

the principle of State responsibility, specifically, the responsibility to

prevent transb oundary pol lution from fore st fires. He ar gues that

this principl e imposes obligations on Indo nesia, not only to have le-

gislation and leg al instruments i n place to prevent forest f ires, but also

to take appropri ate measures and c arry out due d iligence to ensure

that forest fir es do not affect other St ates. This responsibili ty also re-

quires Indone sia to ensure effective l aw enforcement, for exam ple by

imposing appropriate sanctions on those who are responsible for

fires.1 Following large fore st fires in 1997, Tan concluded that

Indonesia had v iolated the principle of St ate responsibility, stat ing:

Indonesia is internationally responsible for the occur-

rence of large-scale f ires and consequent transb oundary

injury to neighb ouring States by failing to control the a c-

tions of its citizens with in its territory. It fir st failed to

prevent transbound ary harm by not usin g its legislative

and administra tive powers to the fullest extent possib le

to prevent the fires fro m being started by the comm ercial

enterprises. On ce these fires ha d been detected and

transboundar y harm occasion ed to the injured States,

Indonesia further failed to control the actions of the com-

mercial enterpris es and to compel them to ce ase their

1AKJ Tan, ‘Fore st Fires of Ind onesia: Stat e Responsibi lity and Int ernationa l Liability ’ (1999)

48 Internat ional and Compa rative Law Qua rterly 826, 83 8–839.

DOI: 10 .1111/reel .12284

ORIGINAL ARTICLE

The many faces of strict liability in Indonesia's wildfire litigation

Andri G. Wibisana

Correspondence

Email: andri.gunawan@ui.ac.id Since 2013, the Indonesia n Ministry for th e Environment and Forest ry has sued

several timber and oi l palm plantations for f ires that have occurred within conces-

sion areas. These gover nment lawsuits are imp ortant, not jus t for reducing the

number of fires in Ind onesia, but also for ga lvanizing a signific ant development of

the nation's law of civil liabilit y for environmental damage. In these c ases, the gov-

ernment has attemp ted to ground its suits in two t ypes of liability, namely the liabil-

ity for an unlawf ul act and stric t liability. The arti cle observes som e inaccurate

interpretations of s trict liability in wildfire litigat ion, where the liability rule is con-

sidered as part of th e liability rule for an unlawfu l act, and as a liability rule r esulting

from the applicat ion of the precautio nary principl e in a fault- based liability r ule.

The application of s trict liability start s with the identification of whet her a defend-

ant's activity can be considered an abnormally dangerous activity. The article finds

that activitie s related to the clearing and drainage of pe atlands are abnormally dan-

gerous because th ey significantly in crease the risk of fires a nd constitute an un-

natural use of land. It con cludes that the application of stric t liability to wildfires is

defendable in so far i t can be proven that the defendant has previousl y conducted

the clearing and drainage of peatlands.

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