Transboundary Haze law praised – with a caveat

Transboundary Haze law praised – with a caveat

24 February 2014

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Singapore — LEGAL experts have identified some areas in the proposed Transboundary Haze Pollution Bill that could be strengthened, even as they hailed the legislation as unprecedented. For one, difficulties in procuring evidence remain, along with challenges in pinpointing the source of the damage and the culpability of any single party, they say.

While the bill’s presumptions – which allow the court to assume a claim is correct until proven otherwise – may help prosecution get over some of the difficulty in proving cause or contribution to haze pollution, the difficulties in procuring evidence remain, NUS law professor Alan Tan Khee Jin told BT.

The bill provides that if there are maps which show that any land is owned or occupied by a company, it shall be presumed that the company owns or occupies that land, said Prof Tan, who is also on the Executive Committee, Asia Pacific Centre for Environmental Law.

But he pointed out: “Even if maps can be obtained, the assumption here is that these maps are official, authoritative and accurate. But as is common in Indonesia, different maps or versions of maps may exist, depending on their source. This is because the different agencies frequently issue overlapping land use rights. Often, the respective maps are contradictory in identifying the boundaries and the respective owner, occupier or rights-holder. Hence, there could be uncertainty if the prosecution relies on maps that are contested. Of course, the prosecution could ask for the maps that the companies . . . use.”

“In any event, many companies operate alongside local communities who dispute the boundaries and thus encroach on the land. If these parties are the source of the fires, the companies could still be held responsible unless they prove that some other party started the fires. This will be hugely difficult given the massive size of the concessions. For both the prosecutors and the companies, it will mostly boil down to the difficulties of procuring reliable evidence, even with the presumptions.”

But the bill has teeth in other areas, Prof Tan said. “If there is a bad haze episode in Singapore and satellite evidence shows that, at or about that time, there are fires on that land causing smoke that is moving towards Singapore, it shall be presumed that the haze in Singapore involves smoke resulting from that fire on the land in question. This is so even if there are fires in other or adjacent areas at or about the same time. It shall be presumed that the company that owns or occupies the land has engaged in conduct or authorised or condoned conduct which caused or contributed to that haze. The company can deny each of these presumptions, but it has the heavy burden of proving the contrary.”

Singapore Business Federation chief executive Ho Meng Kit said his members are supportive of the bill, citing the millions of dollars of losses sustained by many companies in construction, marine and engineering, retail, food and beverage and tourism-related services, when the haze hit unprecedented levels last year, disrupting their operations.

But Mr Ho said the bill isn’t the panacea that will solve the recurring problem. “On its part, SBF is collaborating with its counterpart, The Indonesian Chamber of Commerce & Industry, in a joint initiative to exhort companies in the agricultural supply chain to adhere to sustainable agriculture practices.”

Enforcing judgments obtained against an entity or officer outside of Singapore and who has no assets in Singapore may be another challenge. The main issue in enforcing any judgment obtained in civil suits against these companies would be the difficulty of going through the foreign legal system and getting them to recognise a Singapore judgment, said Sandra Seah, a partner with the law firm ATMD Bird & Bird.

Unless the judgment debtor is from a country that has a reciprocal arrangement with Singapore, the cost of hiring foreign counsel and the time needed to navigate the foreign legal system may prove inhibitive, she said.

Jonathan Kao, a lawyer with ATMD Bird & Bird, said: “A better approach may be to instead impose penalties on the sourcing of materials from offending foreign entities in addition to managing or controlling the offensive foreign entities.”

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