- Indonesia’s Supreme Court has quashed a ministerial regulation obliging forestry companies to relinquish and protect carbon-rich concessions in protected peat areas.
- The regulation was part of a package of new rules meant to prevent a recurrence of the annual fires that burn across Indonesia’s vast peat swamp zones.
- Businesses, labor unions and politicians had expressed concern over the regulation, saying that it would result in loss of productivity and massive layoffs.
- The government says the court ruling will not hamper the nation’s efforts to protect its peatlands.
JAKARTA — Indonesia’s highest court has struck down a regulation obliging forestry companies to relinquish and protect carbon-rich concessions to prevent a recurrence of annual fires.
The ruling was handed down on Oct. 2 by the Supreme Court in response to a challenge filed in June by a labor union in Sumatra’s Riau province, one of the regions particularly hard hit by the fires and choking haze they generate.
The regulation was issued in February by the Ministry of Environment and Forestry as part of a package of new rules meant to prevent a recurrence of the annual fires that burn across Indonesia’s vast peat swamp zones, much of which have been drained for agricultural use, rendering them highly flammable.
Opposition to the regulation came from businesses, labor unions and politicians, who argued that a requirement to retire plantation lands on deep peat would hurt the pulp and paper industry, especially in Riau province, home to 14,000 square kilometers (5,405 square miles) of industrial timber plantations — the size of the state of Connecticut.
In its ruling, the court said the regulation purported to create a new type of forest zone, in violation of the 1999 Forestry Law. Under that law, Indonesia’s “forest estate” — over which the Ministry of Environment and Forestry exercises jurisdiction and which accounts for two-thirds of Indonesia’s land mass — are zoned for either conservation, protection or production.
In the court’s eyes, the regulation illegally sought to create a fourth category, for “peatland ecosystems.”
“The content of the ministerial regulation stipulates something that is not [within] its authority and something that is not ordered by the forestry law,” the court ruling reads. “The authority to add peat ecosystem to the core functions of forests completely lies within the forestry law to regulate and decide.”
The court thus ruled that the ministerial regulation would create legal uncertainty and give rise to further problems in its implementation.
Mapping peatland areas
The regulation required companies to overlay their peat maps with the government’s peatland hydrological area map, which divides the country’s peatland areas into two categories: conservation and production.
The map was issued by the Ministry of Environment and Forestry earlier this year and distributed to plantation companies so they could start overlaying their maps.
If any concessions overlap with conservation areas in the peatland hydrological area map, then companies have to give up those areas to be converted into protected areas. The companies are still obliged to manage these protected areas by restoring them to their original function through rewetting and revegetation.
Only those companies whose concessions comprise at least 40 percent protected peat area under the government’s definition are eligible for compensation in the form of land elsewhere.
The ministry gave companies 30 days to revise their work plans and resubmit them following receipt of the government’s peat map.
The labor union that mounted the legal challenge against the regulation argued that these requirements would harm local livelihoods. Up to 125,000 people depend on the industrial timber sector in Riau, according to Nursal Tanjung, the head of the Riau chapter of the All-Indonesian Labor Union. “What will their future would be like? The [promise of a] land swap is false. There’s no more [vacant] land in Riau,” he said.
Undermining Indonesia’s climate commitment
The ministry defended the regulation as necessary to protect Indonesia’s peatlands and prevent another disastrous bout of peat fires.
“There will be a disruption to the climate balance and water management, loss of carbon stock, loss of biodiversity, loss of oxygen sources, triggering global warming not only in Indonesia but also other countries,” the ministry argued in court filings.
Quashing the new rule, the ministry added, would also create confusion among concession holders, most of whom have already submitted their revised work plans.
Peat protection is seen as a pillar of the government’s climate-change mitigation campaign. The ministry argued that revoking the regulation would undermine Indonesia’s commitment under the 2015 Paris climate accord.
The environment minister, Siti Nurbaya Bakar, told reporters in Jakarta that she would study the verdict before making any decision.
However, she said there was still another regulation, the 2014 ministerial regulation on industrial timber plantations’ work plans, that required companies to revise their work plans.
Bambang Hendroyono, the ministry’s secretary-general, said the 2014 regulation required companies to revise their work plans whenever there was a change in policy or whenever there was a change in the function of their concessions.
He added that the 2017 peat regulation was only one of a series of ministerial regulations that were drafted to enforce a 2016 presidential regulation issued in the wake of the disastrous 2015 fires.
The 2016 regulation was President Joko Widodo’s signature piece of anti-haze legislation.
The core of peat protection in the country, such as the stipulation that at least 30 percent of all peat domes — landscapes where the peat is so deep that the center is topographically higher than the edges — should be converted into protected areas, is already included in the 2016 regulation.
This stipulation was further fleshed out in the 2017 regulation, with the focus being timber plantations.
“So for industrial forest plantations, the technical guideline for them is regulated by the 2017 regulation,” Hendroyono told reporters at the ministry’s office in Jakarta. “So [the 2017 regulation] is very technical. But when we look at it, [the court ruling] doesn’t reduce companies’ responsibilities in peat ecosystems. They still have to prioritize [peat] recovery.”
Andri Gunawan Wibisana, an environmental law expert from the University of Indonesia (UI), said that, if anything, quashing the 2017 regulation actually stripped companies of the right to receive land in compensation, given that the 2016 presidential regulation does not require the government to give new land to companies that lose their concessions.
“There’s a chance that [parts of their concessions] are still designated as protected areas because the 2016 regulation is still in effect, but the ministry no longer has an obligation to give land substitute,” Wibisana said in an interview.
Banner image: Fire set for peatland clearing in Riau province, Indonesia, in July 2015. Photo by Rhett A. Butler.