Foundations in Focus: Critical Analysis on Legal Standing in Environmental Disputes within State Administrative Courts

Environmental Dispute in Indonesia

Environmental disputes are conflicts between two or more parties arising from activities that potentially and/or have impacted the environment, as stated in Article 1 number 25 of Law Number 32 of 2009 on Environmental Protection and Management (“Indonesia Environmental Law”), which has been amended through Law Number 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 on Job Creation into Law (“Job Creation Law”).

When referring to Indonesia Environmental Law and the Job Creation Law, the provisions regarding the dispute resolution mechanism for environmental disputes in the criminal and civil courts are specifically regulated. However, beyond these two areas, resolution through administrative claims in the field of administrative law, which often becomes the object of disputes, is also an important aspect that should be discussed.

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It should be noted that previously, the resolution of environmental cases in the realm of administrative law was explicitly regulated through Article 38 and Article 93 of Indonesia Environmental Law. Both articles however have been repealed since the promulgation of the Job Creation Law. Nevertheless, the filing of environmental claims within the scope of administrative law remains possible by referring to the provisions stipulated under the Supreme Court Regulation Number 1 of 2023 on Guidelines for Adjudicating Environmental Cases (“Supreme Court Reg. 1/2023”).

As stated in Article 4 paragraph (1) of the Supreme Court Reg. 1/2023, environmental cases include administrative cases, as far as they are related to environmental protection and management efforts.

Thus, when discussing the context of environmental cases in the realm of administrative law, the objects of dispute are naturally, as stated in Article 13 of the Supreme Court Reg. 1/2023, including, a State Administrative Decision (“Keputusan Tata Usaha Negara/KTUN”), in the form of approvals, permits, or other decisions in the field of environment, as well as relevant Administrative Actions, which an act by a government official or other state administrator to perform and/or refrain from performing a concrete action.

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With respect to environmental administrative disputes, certain issues are frequently raised when such disputes are brought before the State Administrative Court. One of the issues concerns the legal standing of the Claimant that files the claim through the State Administrative Court.

This issue arises due to the nature of an environmental state administrative cases, where disputes are often triggered by damage or loss suffered by the environment, rather than direct harm to whom the KTUN or Administrative Action was initially directed. Consequently, the claimant may not be the party directly affected by the KTUN or Administrative Action. In such cases, determining who qualifies to file a claim, may be problematic.

Legal Standing in Environmental Dispute

Concerning the legal standing in filing an administrative claim, Article 53 paragraph (1) of Law Number 9 of 2004 on Amendments to Law Number 5 of 1986 on State Administrative Court, stipulates:

“Any person or civil law entity that feels that their interests have been harmed by a State Administrative Decision may file a written claim to the competent court containing a demand that the disputed State Administrative Decision be declared null and void or invalid, with or without a demand for compensation and/or rehabilitation.”

One form of legal standing to file a claim in an environmental state administrative dispute is the claim right of environmental organization. As stipulated under the Article 92 paragraph (1) of the Indonesia Environmental Law, in the framework of executing responsibility for environmental protection and management, environmental organizations is entitled to file a claim for the interest of environmental function conservation.

Whereas the term “environmental organization,” as referred to in Article 1 number 27 of the Indonesia Environmental Law, is a group of organized people and established by their own will, of which goal and activity are related to the environment.

Despite the claim right of environmental organization, its legal standing may be challenged. To further examine how environmental dispute is handled within administrative law, specifically with regard to the environmental organization legal standing, it will be discussed through the Decision Number 36/G/TF/2022/PTUN.PBR.

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Jurisprudence No. 36/G/TF/2022/PTUN.PBR

This case concerns a location planted with oil palm plantations, even though it is not permitted under the applicable laws and regulations. The claim was filed by a foundation engaged in the preservation of forest functions and the environment, and involved a private company that managed the oil palm plantation. In its claim, the Claimant demands that the government agency and officials restore the conservation forest area of the national park, remove all persons present within the 1,200-hectare area, require one of the defendants to bear the costs of restoration or reforestation, and obligate the defendants to enforce forestry law through administrative sanctions.

In this case, while the Defendants was proven to be liable for the damages caused due to its neglect of its statutory duty to preserve the environment, another issue that arose at the first level of court was regarding the legal standing of the Claimant. The Defendants argued that the Claimant, incorporated as a foundation, had no clear interest or did not suffer any direct loss as a result of the government’s actions carried out by the Defendant.

The Defendants further argued, that for an organization to be authorized to file an environmental administrative claim, in accordance with the provisions of Article 73 of Law Number 41 of 1999 on Forestry and Article 92 paragraph (3) of the Indonesian Environmental Law, one of the conditions that must be fulfilled is that the claimant must prove to have carried out concrete activities in accordance with its articles of association for a minimum of two years. However, the Defendants contended that the Claimant should not be considered to have met or fallen within such criteria, arguing that the Claimant had never actually conducted any “concrete activities.”

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Judex Facti in the first level of court, through Decision Number 36/G/TF/2022/PTUN.PBR, essentially argues that under Article 1 number 25 of Indonesia Environmental Law, the environmental dispute consists of dispute between two parties or more resulting from an activity that has a potential and/or has affected the environment. The Judex Facti then argues that the foundation as an organization is based its claim on the losses arising from activities that have potential and/or have affected the environment.

The Judex Facti continues assessing the Claimant’s right to claim as environmental organization. Judex Facti assesses the claim right under the Decision of the Chief Justice of the Supreme Court Number: 36/KMA/SK/II/2013 on the Implementation of Guidelines for Handling Environmental Cases (“Surat Keputusan Mahkamah Agung/SK KMA 36/2013”), namely:

• Established as a legal entity.
• States in its articles of association that the organization was established for the purpose of preserving the environment.
• Has carried out activities in accordance with its articles of association for at least two years.
• The right to file a claim is limited to the demand for certain actions to be taken without any claim for compensation, except for actual costs or expenses.

As the evidence proves that the Claimant has fulfilled the requirements under SK KMA 36/2013, Judex Facti concludes that the Claimant has a legal standing as environmental organization, and therefore, is entitled to file a claim.

Jurisprudence No. 247/PDT-LH/2022/PT PBR jo. No. 12/Pdt.G/LH/2022/PN Sak

Similar to the jurisprudence at the State Administrative Court, on a different legal case in a public court, there was also a challenge on a legal standing of a foundation as the claimant in an environmental dispute. In this matter, the Judex Facti did not refer to the SK KMA 36/2013 but only assessing the provision under Article 92 paragraph (3) of Indonesia Environmental Law. The Judex Facti then assess the compliance of that provision with the evidence submitted by the claimant, and then concludes that the claimant fulfills the provision, and therefore, has a legal standing to claim.

Environmental Organization Legal Standing

While has been specifically regulated, the claim right for the environmental organizations may still be challenged. Having an ‘interest harmed’ to claim under the State Administrative Court is crucial. But for environmental dispute, this ‘interest harmed’ should not be limitedly seen as only actual losses, but also as potential losses or that have already impacted the environment. This does not end here. The claim right should be assessed. If it is proven as stipulated under Article 92 paragraph (3) of Indonesia Environmental Law and SK KMA 36/2013, then the foundation will have its legal standing to claim. But if it is not proven, then it will not have its legal standing to claim.

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Sources:

• Law Number 9 of 2004 on the Amendment of Law Number 5 of 1986 on State Administrative Court.
• Law Number 32 Year 2009 on Environmental Protection and Management.
• Law Number 6 Year 2023 on the Stipulation of Government Regulation in Lieu of Law Number 2 Year 2022 on Job Creation into Law.
• Decision of the Chief Justice of the Supreme Court Number: 36/KMA/SK/II/2013 on the Implementation of Guidelines for Handling Environmental Cases.
• Pekanbaru State Administrative Court Decision. Number 36/G/TF/2022/PTUN.PBR.
• Pekanbaru High Court Decision Number 247/PDT-LH/2022/PT PBR.
• Siak Sri Indrapura District Court Decision Number 12/Pdt.G/LH/2022/PN Sak.