Transboundary Haze Pollution Bill


The following is my speech delivered on 5 August 2014 in Parliament and a follow-up question for MEWR Minister. Source: Parliament website – http://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00006478-WA&currentPubID=00006482-WA&topicKey=00006482-WA.00006478-WA_1%2Bid-4067f594-ea00-4e20-ac4b-1ad5493c5b74%2B

TRANSBOUNDARY HAZE POLLUTION BILL

[speech by MEWR Minister and other members…]

Mr Yee Jenn Jong (Non-Constituency Member): Mdm Speaker, I rise in support of the Bill. Since 1991, Singapore has endured recurring haze episodes resulting from land and forest fires in Indonesia, with last year’s being the worst ever. While I appreciate the efforts of our officials over the many years in trying to find workable solutions with our ASEAN neighbours on this issue, I have been concerned about our lack of ability to take more actions that are within our controls.

Hence, two years ago, I had asked the Government to consider legislative measures to allow us to prosecute companies found guilty of causing haze in Singapore through illegal burning, even if the acts were committed outside of our shores [1]. This Bill now gives us a new legal lever to exercise our rights to clean air, covering both criminal and civil liabilities for commercial entities responsible for land clearance if their actions outside of our territorial boundaries cause haze pollution in Singapore.

This Bill signals Singapore’s seriousness in combating this issue. Agricultural companies that wish to do business with Singapore or have their operational headquarters here will have to think seriously about their practices if they are not already practicing good land clearing practices.

My speech will focus on some details of the Bill and the potential challenges to put it in place, which the Minister and other Members had also pointed out.

Presumptions. First, there is a string of sweeping presumptions under clause 8 of the Bill which we need to especially convince our regional neighbours that these are fair and reasonable.

Clause 8 contains a series of legal presumptions to assist the prosecution to pin guilt on entities. There will be much controversy surrounding clause 8(4), which presumes the accuracy of land maps obtained by the Singapore Government from the foreign government or any person requested by the Singapore Government to furnish a map. If the Singapore Government decides to rely on that map, it is presumed under clause 8(4) that the entities reflected on the map as occupying particular geographical areas will be presumed to be doing so unless the entity proves otherwise. Is this presumption from a map reasonable? Therein lies a potential minefield.

Experts in agrarian land laws have cited the complexity of the law related to land in Indonesia [2] and the need for reforms in land registration [3 and 4]. There are reportedly ambiguities in land rights between the customary law or adat, which deems land as belonging to communities, and the formal law called the Basic Agrarian Law giving individual title to land. There are thus unregistered but valid land rights which would not show up in maps as they are generally not recognised by the State.
A further complication is that, under the Basic Forestry Law of 1967, all forest land is deemed to belong to the State, even when communities recognise their customary rights to the forest land among themselves. The Basic Agrarian Law of Indonesia recognises four types of land tenures that can be registered: (a) the right of ownership; (b) the right to use; (c) the right to exploit; and (d) the right to build. Different entities can hold the four different rights to the same piece of land. Many of the rights given to the urban and rural land in Indonesia have not been registered. In addition, foreign entities also team up with local entities to get de facto rights to the land, making it unclear as to who is the actual entity that is in charge of activities on the land parcels.

Given the state of affairs, how reliable would land maps from Indonesia be? Do the Indonesians themselves accept their government maps as accurate? This may call into question the reasonableness of the presumptions under clause 8(4).
Besides clause 8(4), the rest of clause 8 also places the burden of proof on a suspected entity to disprove its guilt. Clause 8(1) presumes that haze pollution in Singapore is caused by a land or forest fire outside Singapore if the meteorological data suggest so. Clause 8(2) presumes that an owner or occupier of the land alleged to have caused haze pollution in Singapore had engaged in conduct that caused or condoned the haze pollution. Clause 8(3) presumes that if any entity is believed to have caused or condoned haze pollution in Singapore, any other entity that participates in the management of the first entity has also caused or condoned haze pollution in Singapore.

While presumptions have been used in Singapore laws before, such as in the Misuse of Drugs Act, shifting the burden of proof to persons is likely to be more demanding, and even more so when the evidence is overseas. Where a legal presumption operates against an accused, it is not sufficient for the accused to cast a reasonable doubt on the prosecution’s case; instead, the accused has the burden of proof to rebut the legal presumption on a balance of probabilities. In order to do so, the accused entity is expected to bring its witnesses and documents to Singapore and foot the expenses of such. Even assuming that a foreign entity does all these things and is acquitted, there is no provision for it to recover its expenses or legal costs, since this is a criminal proceeding. A challenge will be that some foreign entities may not be interested to clear their name at their own expenses in Singapore.

Next, on the defences provided in the Bill. The Bill provides as defence to condoning haze pollution that if the accused Primary Person proves on a balance of probabilities, that the Primary Person took “all such measures reasonable” to prevent or stop or reduce substantially such conduct by the Secondary Person, if the haze pollution has already happened.
It will be good for parliament to clarify what standards of behaviour are the Primary Persons expected to implement to constitute a good defence? It would be a perverse policy outcome if Primary Persons are able to get away by simply inserting clauses in their contracts with their supplier Secondary Persons that the Secondary Persons must not engage in conduct that causes haze, and with the rights to terminate their contracts in the event of a breach.

Should we expect a higher standard of behaviour to be met before the clause can be invoked, such as for the Primary Persons to conduct regular audits of their contractors, plus provide resources to fight fires once they have broken out, and to do everything possible to prevent and fight haze fires?

The Bill provides for a fine of $100,000 per day if a party is found guilty of causing haze, plus $50,000 per day for failing to comply with preventive measures, up to a cap of $2 million. This was an increase from the earlier draft for caps of $300,000 to $450,000.

The Minister had said that we need to increase the overall level of deterrence [5]. For the purpose of clarity to the public, I would like to know the processes which the Government had used to arrive at these figures. Were other methods of computations for caps considered? I feel it is important for the Government to have a principled basis for these figures so that there will be greater acceptance of this Bill by our regional neighbours.

Enforcement. The Bill provides for the Director-General of Environmental Pollution or an authorised officer to give notice to any person, whether within or outside of Singapore to furnish information or documents. The challenge is to get the cooperation of contractors or sub-contractors, when the persons or corporations that do not have presence in Singapore or are not even managed from Singapore. Large plantation companies often work through contractors. Our courts will need to have concrete evidences if we wish to prosecute these plantation companies. Would this make it vulnerable for prosecution under this Act to fail due to the lack of evidence because of the lack of cooperation?

There are provision under Sections 4, 6(3) and 6(4) for “extra-territorial application”. Singapore currently does not have any umbrella extradition treaty with Indonesia. If the accused person fails to appear in court, a warrant of arrest is issued under Section 17. This will likely have little or no effect if the person is not in Singapore. We have many examples of such cases in other aspects of our laws. For example in divorce-related maintenance issues, there are many cases that have stalled for indefinite periods at this stage of the legal process because the accused is in a country which Singapore does not have an adequate extradition treaty with, such as Indonesia.

Good evidence is needed given the complex nature of the ownership and operations of plantations in Indonesia. Last year in the midst of the haze, several large plantations were flagged out publicly as possible culprits. The press reported that several of the named companies said that they followed strict no-burning policies, demanded their contractors to do the same, and had in fact worked to put out fires in neighbouring areas [6]. They also stated that while the permits for lands may be listed as belonging to them, they were not conducting activities on these concessions, or the permits have expired, or were not under their control as parts of the land may be occupied by others.

Regional Cooperation. While having this new legislation is good for signalling Singapore’s strong intent to fight transboundary haze, we will still have to rely heavily on good old-fashioned diplomacy and extending our strong support to our neighbours to help them prevent and fight forest fires. We also need their cooperation to ensure that prosecution and the enforcement of punishment can be carried out.

In this respect, it is very encouraging that Indonesia’s President-elect, Mr Joko Widodo, who also happens to be a forestry graduate, has backed our plans to impose heftier fines on transboundary polluters, but with a caveat to respect the sovereignty of Indonesia.[7]

Ultimately, the fires are burning in a sovereign foreign country. We need to have accurate and up-to-date land concession maps in order to have evidence against the companies implicated in unlawful forest fires. Most of all, it is best to be able to prevent these fires from starting.

An important step to solve the regional haze problem is for Indonesia to ratify the ASEAN Agreement on Transboundary Haze Pollution. Indonesia has remained the only ASEAN country not to have ratified the Agreement, with some officials citing the need for detailed protocols to guarantee Indonesia’s sovereignty. As the Minister and others had also pointed out, the haze, unfortunately affects ordinary Indonesians even more than it does to their neighbours as those in Riau and Kalimantan are where the most intense fires are. Our diplomacy efforts can extend towards helping Indonesia achieve their stated aim for a more sustainable agro-industry.

Last year, the Minister shared about Singapore’s collaboration with the province of Jambi [8]. He had termed it as one of our more successful efforts that saw a greater reduction in the number of hotspots in Jambi Province during our years of collaboration, compared to other fire-prone provinces in Sumatra. He attributed the success to the strong support given by the then Governor of Jambi, Pak Zulkifli Nurdin. The collaboration was not renewed, unfortunately, after 2011.

I believe our officials must be hard at work trying to build up that same level of close collaboration that we had back then with Jambi province and with other Indonesian provinces. This is a tireless effort that must not stop. With the signal of support sent by President-elect Mr Joko Widodo to have greater ASEAN collaboration on various environment issues, let us hope the Minister can soon share more success on this front of preventing fires at the frequent hotspot areas.

Mdm Speaker, notwithstanding the challenges to operationalise this Bill, I am pleased that we now have the legislative means to allow us to do more in the fight for our right to clean air. Thank you.

… [Speeches by other members and Minister’s response]

Mr Yee Jenn Jong: Thank you, Madam. I thank the Minister for the clarifications. I just have one question which is actually from my speech. I would like to know what would be our Singapore Government and the Minister’s expectations as to the Primary Person’s responsibility. How do you define “taking all such measures reasonable to prevent, stop and reduce substantially such actions by the Secondary Persons”? The reason I am asking this is it is very simple for large companies to insert clauses into their contracts with sub-contractors and then say that they have, therefore, safeguarded themselves. If a forest fire happens, they can then simply say it is the responsibility of their sub-contractor and, therefore, they have taken all reasonable measures. Thank you.

Dr Vivian Balakrishnan: I thank the Member for that query. I do not think the simple insertion of a few clauses into a contract will be a sufficient defence. But I will leave it to the judge in the court of law to assess whether that controlling entity has really done the best to prevent a fire, or did not know about the actions that led to the fire, or having known that the haze has being caused, did not take adequate action to put it out. These are issues which have to be settled in court. I do not think just having a clause in the contract absolves you of your responsibility and of your liability.

——————————————-

References:

[1] http://www.landcoalition.org/sites/default/files/publication/1357/2012AsiaLandForum_AdeCholikMutaqin.pdf

[2] http://www.landcoalition.org/sites/default/files/legacy/legacypdf/angoc/ch2/ch2p06.pdf?q=pdf/angoc/ch2/ch2p06.pdf

[3] http://usaidlandtenure.net/Indonesia

[4] http://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00078137-WA&currentPubID=00078220-WA&topicKey=00078220-WA.00078137-WA_1%2BhansardContent43a675dd-5000-42da-9fd5-40978d79310f%2B2

[5] http://www.channelnewsasia.com/news/singapore/up-to-s-100-000-fine-for/1243194.html

[6] http://www.straitstimes.com/the-big-story/the-haze-singapore/story/haze-update-companies-reject-claims-they-were-behind-fires-20

[7] http://www.bloomberg.com/news/2014-07-29/haze-fines-win-indonesia-s-support-with-caveats-southeast-asia.html

[8] http://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00000206-WA&currentPubID=00000140-WA&topicKey=00000140-WA.00000206-WA_1%2Bid-631404fd-00cb-43b5-a98b-4d0b51828ccb%2B16

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