CŒF9 OYtCOM9F. Besides the issue of procedural access, effective environmental litigation implies access to environmental justice in a substantive sense. That is, environmental litigation should enable private litigants to enforce environmental rights and obtain redress for environmentally related damage. Litigation should also enable public interest litigants to protect the public interest in 11 "Lack of Justices Blamed for Judicial Corruption," JŒkŒVtŒ POFt, 2 August 2003. 12 Xxxxxxxx, JYFtUC9 MUthOYt LŒM (1983), p10. 13 see Xxxxxx Xxxxxxx, "Mekanisme Alternatif Penyelesaian Sengketa Dalam Konteks Masyarakat Indonesia Xxxx Xxxx," (Faculty of Law, University of Andalas).who considers cultural attitudes such as these as a supportive factor in the use of mediation in environmental dispute resolution in Indonesia. 14 Note in many cases these social obstacles have been overcome by intervention and assistance by NGOs. This is discussed further in section 6.1.7 environmental sustainability through judicial enforcement of environmental law. To what extent have these more substantive objectives of environmental litigation been realised in Indonesia? An overview of environmental litigation cases reviewed in this thesis and their outcomes may be found in Appendix I. The overview divides the cases reviewed in chapters 2 and 3 into public and private interest cases. In the twenty-year period reviewed, from 1982-2002, there have been a total of ten environmental public interest cases reviewed, eight in the general courts and three in the administrative courts. Whilst the first environmental public interest case, IMdOVŒßOM, was lost on substantive grounds, it achieved the significant procedural victory of environmental standing. This important precedent, together with the subsequent enactment of environmental standing in the EMA 1997, facilitated the series of environmental public interest suits that followed. The procedural success of environmental standing, however, was not matched by a high rate of success in a substantive legal sense. The first five environmental public interest cases were lost on substantive grounds. The sixth case was won at first instance, but lost on appeal. The seventh case was successful against only two of eleven defendants and is pending appeal. The following two cases were both lost on substantive grounds, whilst the tenth case was partially successful and is currently pending appeal. Overall, three out of ten cases were at least partially successful at ...
CŒF9 OYtCOM9F. In chapters 4 and 5 of this thesis a total of seventeen environmental mediation cases were reviewed, two of which were the subject of detailed case study in chapter 5. The outcomes of the cases are summarised in Appendix II.57 The majority of the cases reviewed were industry related disputes located in Java, with the exception of the XXM mining dispute in Kalimantan, in which a formal mediation process had been commenced. Agreements were reached in a high percentage (80%) of the cases reviewed. Yet, as the discussion in the previous chapters indicates, a written agreement in itself does not necessarily result in either the cessation of further pollution or the resolution of the dispute. In several instances, mediated agreements were concluded yet were not subsequently implemented. Where implementation did occur one of the most common outcomes of a mediated agreement was the payment of some form of compensation. In the cases summarised above, a payment of some form was made by industry to the environmental claimants in 11 out of 17 cases (65%). In the majority of cases, however, these payments were framed as ‘contributions’ to community development rather than as compensation for pollution or environmental damage. In the PŒtYV RŒßŒ case, for instance, the payment ultimately made to the Ngringo community was described as a contribution to community development rather than compensation despite the industry’s earlier acknowledgement of pollution in the mediation agreement of June 2000. Similarly, in the XLI case, despite independent research confirming the impact of KLI’s development activities, the payment made by the industry to the 16 farmers was described as a goodwill rather than compensatory payment. There was thus in both cases no explicit acknowledgment that pollution or environmental damage had in fact occurred. This common failure to acknowledge pollution in the first place underlies the common emphasis placed by most industries on a monetary rather than an environmental solution.58 Indeed, in a number of cases, monetary payment by industry was used to install a piped water supply, so the community is no longer dependent on polluted river or ground water in their daily lives. Ironically, this apparently has allowed industries to continue polluting in many cases, whilst minimising the prospect of future conflict. Not surprisingly, continuing pollution or environmental damage has been a problem in a number of the environmental mediation cases reviewed....
CŒF9 OYtCOM9F. In terms of case outcomes mediation has had a higher success rate than litigation in terms of disputants actually obtaining compensation for environmental damage or pollution. Of the fourteen private interest cases in the courts ten were lost and four were at least partially successful at the District Court level. However, only two of these were finally successful at the appellate level and one of those is still pending an appeal to the Supreme Court. The strong likelihood of appeal from any award of compensation by a court, combined with the extremely protracted nature of the appeal process, due in part to severe backlogs of cases at the appellate level, is another problematic aspect of litigation. In the BŒMg9V RUV9V case, for instance, the legal action of the Dekoro community was commenced in November 1998 and was still pending an appeal (to the Supreme Court) more than five years later. In contrast, compensation payments were made in eleven of the seventeen mediation cases reviewed in this thesis, a considerably more common outcome than in litigation. Additionally, whilst mediation processes can also be lengthy, the delays involved usually do not approach anything like the protracted nature of litigation proceedings. For the most part, where payments were the subject of agreement in mediation cases they were generally made within a period of several months. Certainly, mediation appears to be a more probable and direct way of obtaining compensation for environmental damage or pollution than does litigation. However, it is worth noting that when payments were made following mediation, they were frequently described not as ‘compensation”, but rather as “good will payments” or “contributions” to community development. This highlights the general tendency in environmental mediation cases to emphasise pecuniary rather than environmental remedies, although as noted some definite improvements in environmental management were evident in several cases. A similar outcome was evident in environmental litigation cases. As noted above, compensation was the most common remedy ordered by courts, and in some cases, such the BŒbOM RUV9V case, the failure of the court to address the issue of environmental management was clearly evident. Nonetheless, in several cases orders relating to environmental management were made by the courts, although none of these orders were ever implemented as the decisions were either overturned on appeal or are still pending appeal. Generall...
