The Business Times

Govt proposes law to fight transboundary haze pollution

Published Wed, Feb 19, 2014 · 10:00 PM
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[SINGAPORE] The government is proposing to introduce a draft law which would allow the prosecution of Singapore and foreign entities that cause or contribute to recurrent transboundary haze pollution here.

Called the Transboundary Haze Pollution Bill, the legislation - the first of its kind in the region - will have extra-territorial reach, providing for criminal and civil liability against Singapore and non- Singapore entities whose activities outside Singapore cause or contribute to haze pollution.

A public consultation exercise began yesterday and will end on March 19.

Minister for the Environment and Water Resources Vivian Balakrishnan said on his Facebook page yesterday: "Transboundary haze has recurred for too many years in our region. The worst episode occurred last year, and there are early signs of a recurrence this year.

"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. Although there are domestic laws against this practice, there are real problems in investigation and enforcement in those countries."

Singapore thus needs to go further by having legislation with extra-territorial application, he said.

The proposed law will also provide for civil liability, meaning Singaporeans may sue these errant companies for personal injury, damage to their property or other losses resulting from transboundary haze.

"We hope this legislation will send a strong signal of deterrence to such errant companies," said the minister.

Among the bill's key features is a criminal penalty of up to $300,000 which may be imposed against entities which authorise or engage in acts causing transboundary haze here.

The fine may be bumped up to $450,000 if the entity deliberately ignores requests by the authorities to do the necessary to prevent, reduce or control the haze pollution.

Civil damages recoverable under the bill will be determined by Singapore courts, based on evidence of personal injury, physical damage or economic losses.

Joseph Chun, a partner at Rodyk & Davidson LLP, lauded the intent behind the bill, calling it a good effort, but also raised questions about its implementation.

"On civil liability, aside from proving that the conduct caused or contributed to the haze, a claimant would have to show on a balance of probability that his personal injury, disease, mental or physical incapacity or death is a consequence of the defendant's conduct.

"This may be very difficult as, firstly, there may be a time lag between the haze pollution and the personal injury. So there would be difficulty collecting evidence."

Secondly, there may be many causes that led to personal injury, and haze pollution may be only a contributing factor, he said. It would be challenging to prove that the defendant's conduct caused the personal injury if the conduct only resulted in a small fire relative to the total number of hot spots at the time. How would the court attribute the proportion of the defendant's responsibility? Similar difficulties would apply to those claiming for property damage and economic loss.

On criminal liability, it would be difficult to prove causation or contribution of conduct to haze pollution in Singapore. For example, if an entity caused a fire and the prosecution wanted to prove the entity caused or contributed to the haze pollution here, the prosecution would have to prove beyond reasonable doubt that haze pollution at least partly came from that fire.

That would, presumably, entail considering how thick the smoke is and whether smoke from that fire actually travelled to Singapore, said Mr Chun.

In response to the draft bill, a spokesman for Golden Agri-Resources (GAR), which said it was the first palm-oil producer to establish a zero-burning policy in 1997, said: "GAR and its subsidiary, PT SMART Tbk, are absolutely against burning . . . We believe that a multi-stakeholder collaborative approach is the best way to find solutions for the haze issue."

The spokesman added that during last year's haze, GAR deployed all its resources and worked closely with the Indonesian government and other groups such as civil-society organisations, community groups and other growers to contribute to fire-fighting efforts. "We believe that businesses must act responsibly."

Asia Pacific Resources International (APRIL), in a statement to The Business Times, said: "Forest fires in Sumatra diminish air quality and threaten public health over large parts of South-east Asia. They also damage plantations that provide wood for our paper-and-pulp mill. That's why we strictly forbid burning within APRIL concessions and aggressively fight fires that spread from outside areas. We can't comment on the proposed legislation until we've had time to review it, but we encourage public-private sector collaboration that can result in practical solutions to the haze problem."

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