Environmental dispute resolution in Indonesia

Front matter

Davip NICHOLSON” wf

EA

For my fellow travellers — Samali, Niluka and Rama

Contents

Acknowledgements Vii List of abbreviations ix Introduction xi

Environmental disputes in Indonesia xi Academic context xii

Methodology xiii

Introduction

Environmental disputes in Indonesia

In a world of diminishing resources, exponential population growth and rapid development, environmental disputes are increasingly common phenomena. Indonesia has proven to be no exception to this global trend. Indeed environmental problems and related conflict in Indonesia have frequently assumed international dimensions. Forest fires of unprecedented scale, uncontrolled logging of old growth rainforest and the environmental fallout from some of the world’s largest mines are just some of the environmental issues that have held the international spotlight in Indonesia. An even more profuse range of environmental controversies frequents the pages of the Indonesian press, including the dumping of industrial and hazardous waste, the overexploitation of natural resources, illegal logging in national parks, air pollution in overcrowded cities and flooding and landslides caused by deforestation. Within each of these complex environmental issues is a host of interrelated human disputes involving local communities, companies, local, regional and national government agencies, environmental organizations, security forces and many other parties each with their own views, interests and agenda. Such disputes, if left unresolved, can spiral into wider social conflict and exacerbate environmental degradation. In Indonesia, as in many other countries, effective mechanisms for the resolution of environmental disputes are urgently needed. This book, developed from research conducted under the auspices of the Indonesia-Netherlands Study on Environmental Law and Administration (INSELA), endeavours to address this need via a thorough documentation and analysis of the practice of environmental dispute resolution in Indonesia. The main question addressed in this book is thus: to what extent have the formal (legally prescribed) mechanisms for environmental dispute resolution (that is, litigation and mediation) actually been effective in resolving environmental disputes?

xii Introduction

Academic context

Research on this topic would appear to fill several significant gaps in the existing academic literature. The majority of environment related academic research to date in Indonesia has been from either an environmental studies, political science or public policy perspective.! Whilst there has been one useful overview of environmental regulations in Indonesia (Warren and Elston 1994:74), there have been few studies from a social-legal perspective of environmental law (or dispute resolution) and its implementation. The INSELA project, of which this research formed a part, was intended to address this gap in the current academic literature relating to environmental law and its implementation in Indonesia. In addition, this current volume seeks to add to the growing academic fields of environmental public interest law and environmental dispute resolution. The field of environmental public interest law concerns primarily the increasingly common phenomenon of environmental public interest litigation and the legal framework within which it occurs. Whilst the early literature in this area was largely American based, over the last several decades an increasing number of comparative perspectives have become available from a range of jurisdictions.3 Nonetheless, there have not been any detailed English language studies of environmental public interest litigation or citizen-initiated enforcement of environmental law in Indonesia. Indonesian language studies of environmental law and its application are, of course, more numerous. Academic studies have provided some useful overviews of laws and associated regulations, but for the most part have not encompassed detailed examination of judicial interpretation of environmental law, nor of the surrounding social-political context and its interaction with legal processes.* The bulk of Indonesian language commentary on environmental public interest law and its application has originated from environmental non-government organizations (NGOs) active in the area, principally the Indonesian Centre for Environmental Law (ICEL), the Indonesian Forum for the Environment (WALHI) and the Indonesian Legal Aid Foundation

2 A few exceptions in this respect include Otto 1997:21-62; Mas Achmad Santosa 1990:1-150. 7 A useful and comparative commentary on this area of law is Robinson and Dunkley 1995:342. Other references include: Cassels 1989:495; Chopra 1992:8; Cottrell 1993:102-26; Cranston 1997:233-55; Desai 1993:27-40; Denvir 1976:1133; Kramer 1996:1-18; Lau 1995:49-50; Gomez and Cottrell 1994:237; Harding 1992:231; Peiris 1991:66; Micklitz and Reich 1996:445; Susman 1994:57-103.

4 Leading Indonesian texts on environmental law include: Hamzah 1995:332; Koesnadi Hardjasoemantri 1991, 1993:358; Daud Silalahi 1992:294; Rachmadi Usman 1993:277.

Introduction xiii

(YLBHI).3 The work of these organizations has been documented in a diverse array of case notes, practitioner reflections, press releases, newsletters, seminar papers and short articles, much of which has been invaluable in the course of the present study. However, more detailed and comprehensive studies, incorporating theoretical and comparative perspectives, have to date been lacking.

Literature on environmental mediation or alternative dispute resolution also had its roots in the United States, where informal modes of dispute resolution gained popularity as an alternative to litigation in the late 1970s onwards. As in the case for environmental public interest law, the literature has had a strong practitioner focus, although more recently attempts at more detailed theoretical formulations have been made.” Whilst the practice of environmental mediation has spread outside Western countries to the developing world, there have been relatively few studies on the application of Western derived approaches to environmental mediation in countries such as Indonesia.’ Indonesian language commentaries on environmental mediation are limited, but include a useful compilation of case studies sponsored by the Ford Foundation, to which reference is made in the course of Chapter IV (Mas Achmad Santosa, Takdir Rahmadi and Adam 1997:190). To date, however, the available literature has lacked a comparative, theoretically-based study of both litigation and mediation as approaches to environmental dispute resolution, which the present study attempts to remedy.

Methodology

The research methods employed for this study have combined legal and social-scientific approaches. The theoretical discussion of environmental dispute resolution in Chapter I draws upon academic literature in the field of environmental mediation and litigation. Chapter I also includes an overview of environmental disputes in several sectors, which is based upon a compilation of written materials, including Western and Indonesian

J These studies are referred to in subsequent chapters and generally originate from public interest environmental lawyers such as Mas Achmad Santosa (Indonesian Centre for Environmental Law).

6 Specific sources from the Indonesian Centre for Environmental Law (ICEL) and other NGOs are referred to where relevant in subsequent chapters. ICEL also publishes a useful information bulletin on environmental law and advocacy titled Hukum dan Advokasi Lingkungan and until 1999 published an environmental law journal (Jurnal Hukum Lingkungan) in Indonesian and English.

7 On this point see O’Leary 1995:17-36 and Blackburn 1990:151-70.

8 The few studies that have been done include: Moore and Mas Achmad Santosa 1995:23-9; Moore 1998:160-95; Takdir Rahmadi 1998:34-6; Mas Achmad Santosa 1996.

xiv Introduction academic literature, press clippings and reports by several environmental organizations.’

Chapter II provides an overview of environmental litigation in Indonesia, focusing on the legal framework and its interpretation by Indonesian courts. The primary legal sources for this chapter are the various Indonesian environmental laws and regulations discussed and the transcripts of judicial decisions from environmental cases. Copies of judicial transcripts on environmental cases were not always easy to find, due to the absence of a judicial reporting service specific to the area of environmental law. The majority of transcript copies were obtained from legal practitioners or NGOs active in the field of environmental law and advocacy. Where I refer to a judicial decision, I am referring unless otherwise noted to a copy of the judicial transcript from that decision. The discussion in Chapter II covers all civil and administrative environmental cases in Indonesia from 1982-2002 for which I have been able to obtain information. Nonetheless, the lack of reliable judicial reporting systems in Indonesia means that, whilst the chapter is illustrative, it cannot claim to be absolutely comprehensive and inclusive of all relevant environmental cases in this period. The commentary and analysis of judicial interpretation in this chapter is also based upon a range of secondary materials including press clippings, practitioner commentaries and interviews.

The four case-studies of environmental litigation and mediation discussed in Chapters III and V are based on a compilation of written materials and interviews. Written materials were of a diverse nature, including correspondence, press releases, newspaper clippings, case notes, institutional reports, photographs, and minutes of meetings gathered during the course of field visits. Interviews were conducted during several visits to Indonesia in July 1997, October 1999, May 2000 and a more extended period of field research from August 2000 until June 2001. I have also conducted several follow-up interviews in June and November 2003.!° During these periods of field research I was based in either Jakarta or Yogyakarta and often travelled to other locations throughout Java, particularly Semarang, Kudus and Pekalongan. My fieldwork and empirical research were thus Java-centred and also mainly focused on industry-related disputes, which were the most common in these areas. Interviews were generally semi-structured according to questions I had previously prepared, although usually they were conducted flexibly to allow the conversation to take its own course. Interviews were conducted with a range of actors in the selected case studies and in relation

5 Including the Indonesian Forum for the Environment (WALHI), the Indonesian Centre for Environmental Law and the London based International Campaign for Ecological Justice in Indonesia.

10 Follow-up interviews in November 2003 were conducted by phone from Perth, Australia.

Introduction XV to environmental dispute resolution in general. My primary sources in this respect included local, regional and national environmental organizations involved in environmental disputes or advocacy; representatives from communities who had suffered environmental damage or pollution; legal aid practitioners involved in environmental litigation or mediation; journalists who had researched or written about high-profile environmental disputes; governmental officials from environmental agencies at the national, provincial and district level; legal academics; judges and industry representatives.

Interviews were also a source of information for several of the cases included in the overview of mediation in Chapter IV. The chapter is primarily literature-based however, as it seeks to provide an overview of reported, high profile environmental mediation cases to date in Indonesia. The overview draws upon a diverse literature including published Indonesian language studies of environmental mediation, practitioner commentaries and articles and press reports. This chapter also reflects a Java and industry-related focus, although I have included one mining dispute (the KEM dispute) located in Kalimantan. The bias of the chapter toward Java and industry-related disputes is not a comment on the lack of disputes in other areas or sectors in Indonesia. It is rather a reflection of the focus of my own empirical research, which was Java and industry related, and the focus of the available literature on environmental mediation in Indonesia, upon which I drew in compiling the overview.

Overview of book

As explained above, this research is undertaken within the broader framework of the Indonesia-Netherlands Study on Environmental Law and Administration in Indonesia (INSELA), the aim of which was to analyse environmental law and management in Indonesia from both an empirical and normative perspective and to make recommendations on the basis of that analysis. The central research question addressed by the INSELA project was as follows: What have been the consequences of the enactment and implementation of the 1997 Law on the Environment and its predecessor of 1982 for environmental management in Indonesia, and to what extent may certain legislative and policy measures, notably regarding harmonization of legislation and the decentralization of management, contribute to increased effectiveness and legal certainty in the protection of the environment?

In addressing this broad research agenda, the project was further divided into four sections: Part A focusing on national environmental and sectoral legislation and policy, Part B on decentralization and local management institutions, Part C on environmental law enforcement and dispute settlexvi Introduction ment, and Part D on diagnosis, comparative research, recommendations and interventions. Whilst this book addresses research questions within all of these parts, our particular focus is on Part C, relating to legal mechanisms for environmental dispute resolution. Specifically, this book examines the legal framework and legally prescribed mechanisms for environmental dispute resolution in Indonesia, namely litigation and mediation. We shall examine the extent to which such mechanisms have been effective in resolving environmental disputes, and the factors (both legal and non-legal) influencing the outcomes of litigation and mediation in environmental disputes. Finally, we shall make recommendations based on our analysis for the further development and improvement of environmental dispute resolution in Indonesia.

Chapter I begins with a discussion of theoretical perspectives on environmental disputes and environmental dispute resolution, particularly litigation and mediation, illustrated in parts with references to the Indonesian context. The discussion of litigation and mediation defines the functions, objectives and necessary conditions of these two approaches to environmental dispute resolution. This theoretical discussion provides an evaluative framework that is referred to in subsequent chapters, particularly the conclusion (Chapter VI).

Chapter II presents a detailed study of environmental litigation in Indonesia, providing an overview of the environmental legal framework relevant to litigation and considering how key provisions have been interpreted and applied by Indonesian courts in environmental cases. The overview covers a twenty-year period, dating from 1982, when the first Environmental Management Act was enacted, to 2002. The chapter seeks to evaluate salient trends in judicial decision-making and the success of private and public interest litigants in obtaining environmental justice in this period.

In Chapter III, our examination of environmental litigation is further developed in a more detailed study of two particular cases; the Banger River dispute, and the Babon River dispute. The two case studies provide more insight into the history of the disputes, efforts to resolve the dispute before commencing litigation, and the actual process of litigation. The case study approach taken in this chapter, and later in Chapter VI, is intended to provide a more empirically grounded, politically contextualized consideration of litigation’s role in resolving environmental disputes.

In Chapter IV the focus shifts to environmental mediation, with an overview of the use of mediation in Indonesia to resolve environmental disputes to date. The chapter examines the legal, institutional and cultural framework for mediation in Indonesia and includes an overview and analysis of reported mediation cases, in order to assess relevant trends in the process and outcomes of mediated environmental disputes to date. Again, the overview does not purport to be comprehensive, but rather is a selection of relatively

Introduction xvii high-profile environmental disputes in which a formal process of mediation was undertaken. The aim of the chapter is to identify common trends, issues, problems and outcomes in applying mediation to environmental disputes in Indonesia.

In Chapter V, a more in-depth examination of mediation is undertaken in two case studies of environmental mediation, the Palur Raya dispute and the Kayu Lapis Indonesia dispute. Each case study provides a detailed description and analysis of the mediation process, considering the different variables influencing the course of mediation with reference to the theoretical framework introduced in Chapter I. In the concluding Chapter VI, we endeavour to synthesize the insights gained from our overview and case-based analysis of environmental litigation and mediation. The chapter evaluates the outcomes of both approaches to environmental dispute resolution and considers the extent to which they have facilitated access to environmental justice in practice. The chapter then provides a concluding analysis of the legal and non-legal variables that have most noticeably influenced the process and outcomes of environmental litigation and mediation, referring to the theoretical framework elaborated in Chapter I. On the basis of this analysis, the chapter also endeavours to make recommendations to improve the effectiveness of environmental dispute resolution in Indonesia.

A note on the currency exchange rate At the time of writing the book the exchange rate between the US dollar and the Indonesian rupiah was approximately US$ 1: Rp 7,500. At the present time (2009) the exchange rate is approximately US$ 1: Rp 10,000.

Chapter I

Environmental dispute resolution Theoretical and Indonesian perspectives

Environmental disputes

What do we mean when we talk about an ‘environmental dispute’? In the literature on mediation and environmental dispute resolution we find a number of different definitions. Christopher Moore defines environmental disputes as ‘tensions, disagreements, altercations, debates, competitions, contests, conflicts, or fights over some element of the natural environment’ (Moore 1998:160-95). J.W. Blackburn and W.M. Bruce define ‘environmental conflict’ as arising: ‘when one or more parties involved in a decision-making process disagree about an action which has potential to have an impact upon the environment’ (Blackburn and Bruce 1995:1-2). Lawrence Susskind refers to environmental disputes as ‘disagreements among stakeholders in a range of public disputes which involve environmental quality or natural resource management’ (Susskind and Secunda 1998:160-95). Gail Bingham, in her review of a ‘decade of experience’ in resolving environmental disputes, does not define ‘environmental dispute’ but categorizes the disputes reviewed into six broad categories: land use, natural resource management and use of public lands, water resources, energy, air quality and toxics, which she further subdivides into ‘site-specific’ and general policy categories (Bingham 1986:30).

For our purposes we shall limit the scope of both ‘environmental’ and ‘dispute’, so as to more clearly define our research focus. At its broadest, ‘environmental’ is an expansive concept that might connote any element of the natural environment including issues of natural resource management, energy generation, development, and industrialization. Indeed the term ‘environmental’ may even be understood to extend beyond the natural environment to encompass aspects of the man-made or built environment, as in the case of heritage conservation or ‘environment’ as it is used in the context of planning law. Our focus will be more specific, in part due to the more specific definition of environmental dispute in the Indonesian Environmental Management Act (EMA) 1997, which limits itself to disputes relating to the incidence or suspected incidence of environmental pollution or damage. For our purposes then, an ‘environmental’ dispute is a dispute that relates in some way to the incidence, or suspected incidence of environmental pollution or damage of some kind.

What then do we refer to as a ‘dispute’? Moore’s definition quoted above is a broad one, encompassing conflict of seemingly any nature. In contrast, Henry Brown and Arthur Marriot define a dispute as ‘a class or kind of conflict which manifests itself in distinct, justiciable issues’ (Brown and Marriott 1999:2). In a similar vein, James Crowfoot and Julia Wondolleck distinguish the specific nature of a ‘dispute’ from the more general, non-specific nature of ‘conflict’, which they describe as ‘the fundamental and ongoing differences, opposition, and sometimes coercion among major groups in society over their values and behaviours toward the natural environment’. A ‘dispute’ is not distinct from the conflict process, but rather it is a specific, identifiable part of it, namely a ‘specific conflict episode that is part of a continual and larger societal conflict’ (Crowfoot and Wondolleck 1990:17-31). Guy Burgess and Heidi Burgess make a similar distinction, characterising environmental conflict as centring on entrenched, long-term differences between opposing groups’ underlying values and beliefs on the proper relationship between human society and the natural environment (G. Burgess and H. Burgess 1995:101-20). Examples of environmental conflict include

The deep ecology/fair use conflict [...] hunters and those favoring biodiversity and ‘watchable wildlife’; solitary wilderness trekkers and mountain resort patrons, pro- and antigrowth factions; advocates of a ‘small is beautiful’, low consumption lifestyle and proponents of a more materialistic ‘good life’; and advocates of tight pollution control requirements based upon the belief that human life is priceless and persons wishing to take a hard look at the economics of pollution control (G. Burgess and H. Burgess 1995:101-20).

Environmental conflict, as it is defined here, is largely value-based and group-centred in nature, and thus less susceptible to resolution. By contrast, disputes are characterized more by their specificity, which ultimately renders them more susceptible to adjudication and resolution. W. Felsteiner, R. Abel and A. Sarat (1980:631-54) have characterized the emergence of a dispute as involving three stages: ‘naming, blaming and claiming’. ‘Naming’ involves the identification of a particular experience as injurious. ‘Blaming’ involves the attribution of that injury to the fault of another individual or social entity, whilst the third stage, ‘claiming’, occurs when a remedy is claimed from the person or entity believed to be responsible for the injury. Finally, a claim is transformed into a dispute when it is wholly or partly rejected. Thus it is the specific and particularized nature of a dispute, centring upon a particular claim, which make it justiciable and more amenable to resolution via methods such as litigation or mediation.

There is, nonetheless, a close relationship between environmental conflicts and disputes. Broader, value- or interest-based conflicts between groups in society may contribute to a pattern of ongoing disputes that relate to more particular circumstances, claims or policies. Individual disputes may well be susceptible to resolution, however the more general and diffuse process of environmental conflict is likely to continue through subsequent disputes (G. Burgess and H. Burgess 1995:101-20). The scope of this book is limited to environmental disputes and their resolution and does not extend to an investigation of their antecedents or the broader processes of environmental conflict that may underlie them. However, discussion of the broader dynamics between conflicting groups in some cases may influence the dispute resolution process and so may be the subject of commentary in later chapters.

Environmental disputes may be further categorized as either private or public interest. Private interest environmental disputes relate to damage to an individual’s or group’s property or person, caused as a result of a polluting or environmentally damaging activity in a particular location. In contrast, the central issue of public interest environmental disputes is the impact of environmentally damaging or polluting activities on the ‘public interest’ in environmental preservation. Where severe, such damage may threaten essential environmental functions integral to the continued functioning of the ecosystem. Preservation of environmental functions is ultimately necessary for human survival and, in Indonesia, the ‘public interest’ in such preservation is recognized by article 4 of the EMA 1997, which states the “preservation of environmental functions’ to be one of the ‘targets of environmental management’.! In a public interest environmental dispute, the claimant's primary objective is protection of this public interest in environmental preservation. The respondents in environmental public interest disputes frequently include government agencies responsible for environmental protection, and may also include private industries. Environmental public interest disputes may also be site specific or may concern more general issues of policy.

In practice, private and public interest claims may overlap and be pursued within a single dispute (Robinson 1995a:294-326). For instance, victims of environmental pollution themselves may not only pursue compensation of

1 Article 1(5) defines ‘preservation of environmental functions’ as ‘a set of efforts to maintain the continued supportive and carrying capacities of the environment’. 2 See for instance the Reafforestation case (Chapter II) which concerned the transfer of monies from a Reafforestation Fund to an aircraft manufacturing company.

personal damage, but also may advocate restoration of their local environment of which they are a particle. Nonetheless, the two objectives and their respective remedies remain distinct in character. In any case, the predominant character of an environmental claim as public or private can usually be determined according to the identity of the claimant. Where the claimant is an individual or group that has suffered direct, personal loss because of environmental pollution or damage then the claim may be considered predominantly private interest in character. Where the claimant is an organization purporting to represent the public interest in environmental preservation then the claim is predominantly public interest in character. Separation of private and public interest objectives in environmental disputes will assist us at a later stage in assessing the effectiveness of the respective dispute resolution processes in meeting those respective objectives.

Approaches to dispute resolution

Acommonly adopted categorization in mediation literature divides approaches to processing and resolving disputes into three broad categories: power-based, rights-based and interest-based (Boulle 1996:350; Fisher and Ury 1991:200; Ury, Brett and Goldberg 1986:3-10). In a power-based approach, the disputing parties resolve their conflict through a contest of strength, which may encompass tactics such as lobbying, use of political influence, demonstrations, industrial action or physical force. Power-based approaches would also encompass criminal or administrative enforcement of law or sanctions through the state apparatus, a process which rests on the power of the state.? When a power-based approach is taken, the most powerful party typically wins. In a rights-based approach the dispute is adjudicated by an authoritative institution or individual such as an administrator, court, tribunal or arbitrator. The outcome of the dispute is determined according to the law, written policy or societal norms upon which the adjudicating body bases its decision. Litigation, like arbitration or a process of tribunal review, is a rights-based approach to dispute resolution. Finally, in an interest-based approach, such as mediation or negotiation, the conflicting parties negotiate, with or without third party assistance, in order to reach a voluntary settlement amenable to both parties’ interests. The outcome is determined by the respective interests of the parties and their willingness to compromize in order to resolve the dispute at hand.

3 Although criminal and administrative enforcement would more correctly be understood as a combination of power-based and rights-based approaches, as it is not a case of arbitrary power (although sometimes this may be the case), but rather state power exercised according to certain rules.

The three approaches to dispute resolution described above are roughly comparable to Donald Black’s three styles of ‘social control’, which may also be understood as approaches to conflict management." The ‘penal’ style is a state initiated process of punishing or penalising offenders in some manner for acts considered blameworthy or morally repugnant. A penal approach is often taken in situations where the relational or social distance between victim and offender, or between offender and state, is large. A penal approach to conflict management and/or social control could generally be equated with or at least encompassed within the category of 'power-based' approaches discussed above. The ‘compensatory’ style is a victim initiated process where a victim claims payment of compensation by a violator. This style is focused more on the proper redress of harm rather than the punishment of wrongdoing. A compensatory style is more commonly used where the relational distance is of an intermediate nature.” A compensatory style may be equated for our purposes with a rights-based approach to dispute resolution through litigation, where harm is redressed according to an established set of legal principles. The ‘conciliatory’ style involves a third party to the dispute who helps the disputing parties negotiate a mutually acceptable resolution to the dispute; a style comparable to the interest-based approach to dispute resolution described above. As the conciliatory style is consensual and not coercive, it is most effective where the relational distance between the disputants is close, involving multiple and lasting ties. Where these ties are disrupted then both parties will possess sufficient incentive to seek resolution of the conflict.”

This book focusses on the latter two styles, compensatory and conciliatory, equating with rights-based and interest-based approaches to dispute resolution, which for our purposes refers to the processes of litigation and mediag Bedner and Van Rooij 2001:1. See also the seminal work Black 1976:40-7, and an elaboration of Black’s theory in Horwitz 1990:312.

2 Black describes relational distance as the degree to which people participate in one another's lives. The closest relationships involve total interpenetration, the most distant none at all. Relational distance may be measured by, for instance, the scope, frequency and length of interaction between people, the age of their relationship, and the nature and number of links between them in a social network. Relational distance is a variable affecting both the quantity of law used in a social setting and the style of social control: Black 1976:40-7.

6 Yet Black still equates a compensatory style with a penal style in that both are accusatory, having a complainant and a defendant and ultimately a winner and a loser. Whereas a conciliatory style is remedial in nature, focusing on restoring social harmony and repairing social bonds: Black 1976:40-7.

7 However, whilst Black makes a link between a conciliatory style and close relational distance, it should be noted that mediation and conciliatory forms of dispute resolution have been applied with success to a range of modern environmental disputes (see further discussion of this below) where there is often considerable relational distance between the disputants.

tion as applied to environmental disputes. Penal styles of social control, such as the prosecution of criminal offences or enforcement of administrative sanction, and power-based or political modes of conflict resolution are not directly in the scope of this study. Nonetheless, we shall not discount such modes of social control and dispute resolution as they may have an important, albeit indirect effect, on the commencement, process and outcome of litigation and mediation. Indeed, as we shall see in subsequent chapters, environmental disputants may pursue each approach at different stages or a combination of approaches in any one dispute. In the course of a single environmental dispute, parties might first seek to consolidate their power bases and resolve the matter in their favour through a political contest. If a stalemate is reached, negotiation or mediation could be attempted, which if unsuccessful might result in a final stage of litigation to resolve the dispute. Alternatively, the interaction of these different approaches may be contemporaneous, as in the case where the dynamics of a ‘power-based’ struggle influence the process and outcome of a rights-based/compensatory or interest-based/conciliatory approach to dispute resolution.

The interaction of these different approaches to dispute resolution will be explored in more detail in later chapters. For now, our focus turns to our main subject, the processes of litigation and mediation. In this section we undertake a theoretical overview of litigation and mediation, considering the objectives, functions and necessary conditions for these different approaches to dispute resolution. We also attempt to define an evaluative framework to be applied in later chapters when we shall consider the effectiveness of litigation and mediation in resolving environmental disputes in Indonesia.

Environmental litigation Definition of environmental litigation

Environmental litigation may be defined for our purposes as an environmental dispute (see definition above), which has resulted in one or more parties commencing legal proceedings in a civil or administrative court.’ With the globalization of modern environmental law, facilitated by international agreements such as the Stockholm and Rio Declarations, environmental litigation has become increasingly common in a range of jurisdictions. Legislative provisions defining environmental rights, and stipulating grounds for environ-