Govt seeks feedback on law on haze

Proposed Bill will hold parties liable for causing haze that affects S'pore

By Grace Chua And David Ee, The Straits Times, 20 Feb 2014

THE Environment and Water Resources Ministry is seeking public feedback on a proposed new law which would hold companies or other entities liable for causing haze that affects Singapore.

Under the proposed Transboundary Haze Pollution Bill, corporations, sole proprietorships, partnerships and any other "body of persons" that engage in, authorise, or condone activities outside Singapore that cause unhealthy levels of haze in the island-state for 24 hours or more can be fined up to $300,000.

The proposed law, posted on government feedback portal REACH yesterday, says the errant company need not have a presence in Singapore to be liable, but its representatives can be served notice if they are in the country. And if it deliberately ignores requests to prevent or control haze, it can be fined up to $450,000.

There must be satellite images, meteorological data, and maps to show the fires on land owned or occupied by a company, and that the wind is blowing smoke towards Singapore.

Under the Bill, those affected by the haze can also bring civil suits against errant parties.

Environment and Water Resources Minister Vivian Balakrishnan wrote on Facebook: "Transboundary haze has recurred for too many years in our region."

He noted: "The root cause is commercial. It is not the weather or the environment. Errant companies have been clearing land by illegal burning because it is the cheapest way to do so."

Domestic laws against such burning are difficult to enforce.

Drafted because "we need to go further", the goal of the proposed new law was to "send a strong signal of deterrence to such errant companies".

Singapore suffered its worst ever bout of haze in June last year.

Recent dry weather has sparked more land clearing. Pekanbaru, the capital of Indonesia's Riau province, was cloaked in haze yesterday.

Among eight companies fingered by the Indonesian government for the haze last year were two with Singapore connections. But Golden Agri-Resources (GAR) and pulp and paper firm April said they have zero-burning policies and help to fight the fires.

Forest fires damage plantations that provide wood for paper and pulp, said an April spokesman. "That's why we strictly forbid burning within April concessions and aggressively fight fires that spread from outside areas," he said, adding that they had not yet reviewed the proposed legislation.

A spokesman for GAR said: "GAR and its subsidiary Smart are absolutely against burning... We believe that businesses must act responsibly."

Legal experts and environment groups welcomed the proposal.

Mr Nigel Sizer, director of the global forests initiative at the non-governmental organisation World Resources Institute, said: "Anything Singapore can do to help hold companies accountable for the harm they do to the climate, air quality, forests and local people should be welcomed."

Associate Professor Burton Ong, of the National University of Singapore law school and deputy director at the Asia-Pacific Centre for Environmental Law, said the new law was innovative as it specifically tackles transboundary air pollution. But it might be difficult to prove that a specific firm caused a fire or had control over its sub-contractors, he said.

Post by Vivian Balakrishnan.

To end the haze problem, both penalties and cooperation are needed

By Simon Tay and Chua Chin Wei, Published TODAY, 21 Feb 2014

The Singapore Government’s move this week to penalise companies that cause haze is timely, given that fires are currently burning in Riau and Kalimantan. But the proposed laws are more than a symbol or knee-jerk reaction.

The draft Transboundary Haze Pollution Bill, if passed, will allow criminal charges as well as civilian claims for damages to be brought before a court in Singapore — even if the fires occur elsewhere. The Republic has usually punished actions overseas only for severe crimes, such as corrupt acts or illegal sex with minors.

Applying Singapore law to the haze can be an important pillar in the effort to address the region’s recurring environmental problem.

Last year, the haze reached record highs in Singapore and parts of Malaysia. There was frustration that monitoring and enforcement against fires remain difficult in Indonesian provinces.

When regional ministers for the environment met, differences also emerged about releasing maps that could identify the culprits. Several retorted that a number of the implicated companies are headquartered in Singapore or Malaysia.

The Bill shows that the Singapore Government is willing to take action where it can.

WHAT THE BILL CAN AND CAN’T DO

Responsibility is placed on any entity not to cause or contribute to haze pollution in Singapore, whether directly or through companies that it manages. An individual company officer can also be held personally responsible.

Since proving what happens abroad is difficult, presumptions are introduced to allow reliance on satellite imagery, meteorological information and maps. Presumptions allow the court to assume that a fact is correct until proven otherwise.

A company can defend itself by proving the fires were caused by natural disaster or by parties not under its direction. Showing that concession maps are wrong can also rebut the presumption. This will incentivise companies to be more transparent about their land holdings and practices.

Consultations are being held on the Bill before its finalisation and details may be debated. Some may fairly ask, for example, whether the fines proposed are sufficient. While the upper limit of S$450,000 may seem significant to some, palm oil and other commodity companies implicated in the haze are often billion-dollar enterprises.

One thing should be clear, however: No matter how tough the law, this alone is no silver bullet.

COOPERATION REMAINS KEY

Cooperation — and not only penalties — remains the key. Even as the Singapore Government takes this step forward, it must continue to work more closely with Indonesian officials and key corporations. The ongoing fires show that challenges remain, but some signs are positive.

At a recent conference in Indonesia for the palm oil industry, all three Indonesian ministers for Agriculture, Forestry and the Environment called for compliance with no-burn policies. National efforts are being made to conserve forests and biodiversity, and reduce climate-change gases and the haze, which impacts their own citizens living closest to the fires.

Based on our recent visits to Indonesia, we have reason to hope that some in the country will welcome the proposed Singaporean laws as complementary measures.

We also observe that a number of companies are moving towards sustainability. Unilever, one of the largest purchasers of palm oil, for example, has declared its commitment to buy only from sustainable sources.

There are also banks that finance trade and investment in the palm oil sector which evaluate loans based on sustainability and reputational risk.

Such good examples, however, remain a minority. Palm oil and other plantations continue to expand in scale across Indonesia as an important driver for trade revenue and rural employment.

This is why a constructive dialogue is needed to level the playing field for those who have moved towards sustainability. Showcasing the positive examples, in tandem with the proposed penalties under the Bill, can help move more of the players in the industry and supply chain.

Otherwise, as expansions continue, future haze episodes may be even worse than the severe one experienced in June last year. It is significant to have laws and penalties proposed by Singapore to punish those who cause haze. But the very best outcome will be to prevent future incidents of severe haze.

For prevention to have even a chance, a mix of both coercion and cooperation is needed.

Simon Tay is Chairman and Chua Chin Wei a Deputy Director of the Singapore Institute of International Affairs. The SIIA is convening the first Singapore dialogue on Sustainable World Resources in May to bring together policy makers, business leaders and non-government experts.

'Yes' to law on transboundary haze
Strong signal to errant companies, but enforcement may be tough
By Grace Chua And David Ee, In Singapore And Zubaidah Nazeer, In Jakarta, The Straits Times, 21 Feb 2014

Environmental groups and legal experts in Singapore and Indonesia yesterday welcomed the proposed new law on transboundary haze for the strong signal it sent to errant businesses.

The proposed Transboundary Pollution Bill, put up by the Environment and Water Resources Ministry on government feedback website Reach on Wednesday, targets firms with haze-producing fires on their land which affect Singapore.

They can be fined up to $300,000, or up to $450,000 if they actively ignore requests to prevent or control haze. Public consultation on the Bill is open till March 19.

The new legislation is a direct response to Singapore's worst-ever bout of haze last June, which was caused by fires set to clear land in Sumatra.

This year, fires are also raging in Riau as land continues to be cleared by burning. The number of hot spots there dropped from 256 on Wednesday morning to slightly more than 100 yesterday.

"If coupled with strong ground mapping of concession areas and enforcement to pinpoint responsibility for the fires, the Bill can be effective and sends a strong message to businesses that they will be held accountable for their impact," said World Wide Fund for Nature Singapore chief executive Elaine Tan.

Mr Bustar Maitar, Indonesia forest campaign head at the international non-governmental group Greenpeace, agreed that the Bill would send "a very strong signal to both producing country governments and the palm oil sector". But "this must be matched by equally strong measures from the Indonesian government", he added.

Environmental law professor Laode M. Syarif at Hasanuddin University in South Sulawesi added the new law will address criticisms that Singapore is lenient towards companies that are headquartered in the city-state but operate in Indonesia and could potentially be guilty of illegal burning. "It sends a warning to Singapore-based companies operating outside the country. It could also stop Indonesians from using the excuse that Singapore-linked companies get away with environmental destruction here."

How the proposed law will be enforced may present an issue. Associate Professor Burton Ong, of the National University of Singapore law school and deputy director at the Asia-Pacific Centre for Environmental Law, said proving that a firm caused fires could be "quite difficult and onerous".

Firms might claim they had no control over sub-contractors who start the fires, he said, while the authorities have to decide how much resources they want to devote to investigating and prosecuting offenders.

But Nanyang Technological University professor Ang Peng Hwa, who created the Haze Elimination Action Team Facebook campaign in 2007, said prosecution might not be too hard if Singapore gets help from Indonesia and NGOs. "The Indonesians are also angry about the fires. NGOs like Greenpeace could provide evidence," he said.

If passed, the Bill will also put pressure on Indonesia to step up its own efforts to resolve the haze problem, though implementation may be a major stumbling block due to lack of skilled ground staff to assess remote areas.

"It is a bold move we applaud, but we are concerned that culprits can exploit any loophole to demand if the haze is indeed caused by them," said Mr Zenzi Suhardi, forest campaigner for Indonesia Forum for the Environment based in Sumatra.

He suggested the tough fines be bolstered with demotion in status of the companies.

Prof Ang meanwhile felt the fines were too low to hurt multimillion-dollar businesses.

NUS Business School professor Ivan Png, whose Straits Times opinion piece last year called for just such a law, suggested penalties proportional to the land area a defendant owns. He also suggested that the law include an incentive for whistleblowers to provide evidence.

A strong signal to tackle haze menace
Singapore is taking the haze battle to the courtroom, with a new Bill to make haze producers outside Singapore pay for smoky skies here. It can also use corporate boardrooms to fight the haze.
By Grace Chua, The Straits Times, 27 Feb 2014

LAST week, Singapore put up a proposed Transboundary Haze Pollution Bill for public consultation. The proposed legislation was immediately cheered by legal experts and environment groups. But the devil will be in the details.

The new law, which will be administered by the National Environment Agency, provides for both criminal and civil liability.

Companies and other entities that have fires on their land that produce transboundary haze in Singapore will be deemed to have committed an offence.

They can be fined up to $300,000 for having fires on land they own or manage. Ignoring requests to take action involves an additional fine of up to $150,000.

The law will also allow those affected by haze to bring civil suits against such companies. So for instance, a construction firm that has to stop work could theoretically sue for damages.

The new Bill comes with conditions. Haze here would have to linger for 24 hours or more, with air quality poorer than "as may be prescribed". No range is stipulated in the draft legislation, but it is likely to involve a Pollutant Standards Index (PSI) reading above 100, a level the National Environment Agency regards as signalling unhealthy air.

The Bill comes after Singapore experienced its worst-ever bout of haze last June, when the 24-hour PSI hit a record 246.

Green activists and legal experts agree the proposed Bill looks promising, at least as a strong signal to errant firms overseas that they will be held responsible for causing transboundary haze pollution here.

Singapore Environment Council executive director Jose Raymond said the legislation "should serve as a strong deterrent to companies which continue to not just damage the environment with their slash-and-burn tactics, but whose actions are a threat to human health and lives".

Unusual legislation

THE Bill is unusual for several reasons.

- First, it deals purely with transboundary transgressions, that is, offences in other countries that have an impact on Singapore.

- Second, while there are other transboundary conventions like a United States-Canada transboundary air quality agreement, those tend to govern countries rather than commercial entities.

- Third, the Bill applies to non-Singaporeans. Other extraterritorial laws apply only to the conduct of Singapore citizens overseas. Those who pay bribes or engage in child sex tourism overseas can be prosecuted under Singapore corruption or child-sex laws.

Under the proposed haze law, however, it is the representatives of firms outside Singapore - who may be foreigners - who are liable. The law allows them to be served notice when they step into Singapore.

Two firms based here, palm oil firm Golden Agri-Resources and pulp and paper giant Asia Pacific International (April), were among companies implicated by Indonesian officials in last year's haze. Both companies have denied the allegations.

Golden Agri-Resources and paper giant April, like most large firms, have zero-burning policies.

Although they are a potential target of the new law, in fact companies welcome it. Public pressure has pushed many companies to increase their sustainability commitments.

Palm oil trader Wilmar has pledged to stop buying crude palm oil from suppliers who clear land by illegal burning. Pulp and paper firm APP is developing and implementing its forest conservation policy with help from independent non-governmental organisations (NGOs) Greenpeace and The Forest Trust.

Enforcement issues

WHILE theoretically promising, analysts say the law will be difficult to enforce.

Even when countries sign agreements, these can be of limited impact. There is an Asean agreement on haze, but Indonesia, the site of so many fires, has not yet ratified it and so is not bound by it. Yesterday, the PSI in Dumai, in the Riau province north-west of Singapore, hit a hazardous 776 due to open burning and dry weather.

Having a transboundary haze pollution law can nevertheless act as an additional spur to Singapore's neighbours to step up enforcement.

Indonesian authorities face strong domestic pressures too to take steps to prevent the haze which hits its own citizens hardest. To be fair to Indonesia, open slash-and-burn land clearing is illegal. But the laws have not been well enforced until recently.

In January, the Kallista Alam palm oil firm was ordered by an Indonesian court to pay 366 billion rupiah (S$40 million) for illegally clearing and burning part of the protected Tripa peat swamp forest in Aceh. Indonesia's Environment Ministry is pursuing three other companies for environmental destruction.

With the Singapore law in place, one practical question that arises is: How much manpower and resources is Singapore willing to devote to investigate and prosecute firms under the new law? Companies cited may well say they do not use fires to clear land.

Here, technology aids can help. Free public tools like the World Resources Institute's new Global Forest Watch website, which combines real-time fire alerts with forest concession maps and other data, can provide evidence of burning - not just to governments but also to the firms themselves, to better monitor suppliers and subcontractors.

But ground-level investigations will still have to be carried out. Indonesia's government and local NGOs could help provide information, but may be hampered by a lack of resources.

This highlights the need for Singapore to work with the Indonesian authorities on haze enforcement cooperation. As environmental law professor Laode Syarif at South Sulawesi's Hasanuddin University suggested, Singaporean officials may have to be given permission to go to Indonesia to collect evidence.

Other measures

WHILE the proposed law sends a strong signal to firms of Singapore's intent to tackle the haze menace, it can only be one pillar of the anti-haze strategy.

There are other steps to consider that go beyond the courts. After all, the root cause of burning, as Environment and Water Resources Minister Vivian Balakrishnan noted in a Facebook post last week, is commercial. "Errant companies have been clearing land by illegal burning because it is the cheapest way to do so," he wrote.

So, why not hit billion-dollar firms where it hurts?

Singapore can consider adopting a haze-free or deforestation-free public procurement policy. It would not be the first government to adopt a sustainable procurement policy. The Hong Kong government last year dropped shark's fin and bluefin tuna - both endangered top predators - from official menus as a statement on sustainable consumption habits. And the private sector is already laying the groundwork to make such policies easier to implement: Nestle committed to a zerodeforestation policy in 2010, while Unilever pledged to buy all its palm oil from traceable sources by 2020.

It would be a short step from there to cut haze out of the gallons of hand soap and reams of paper, say, that go through government offices each year. Currently, there is no explicit set of sustainability guidelines in public procurement, aside from the fundamental principles of transparency, open competition and value for money.

Beyond public procurement, there is also the lever of public investment and divestment, insofar as sovereign wealth funds here investing in commodities and agriculture. CTP Holdings, which has oil palm plantations in South Sumatra for example, is a joint venture between Cargill, which has a 70 per cent stake, and Temasek, which has 30 per cent.

As a joint venture partner, Temasek can keep partner firms on their toes about preventing burning and deforestation.

Apart from managing risks, Singapore's sovereign wealth funds do not appear to have ethical or sustainable investment guidelines, at least going by a look at their websites. In this, Norway's government pension funds lead: its global pension fund has divested from tobacco producers and nuclear-arms firms, for instance.

Ultimately, the Transboundary Haze Pollution Bill would be just one pillar of Singapore's haze prevention efforts.

It should complement other measures, such as international cooperation in fire prevention and training for enforcement officials, or showcasing positive examples of companies that have switched to other land-clearing methods.

Whether in the courtroom, in the Riau province on the ground, or in the corporate boardroom, Singapore can be savvy in using different tools to tackle the haze.

In the end, all the measures will be judged by just one thing: Do the skies remain clear and haze-free throughout the year?