LH Submission on draft Basic Environmental Law

This a shortened version of a page on La'o Hamutuk's website.

In late January, Timor-Leste's Secretary of State for Environment (SEMA) circulated a draft basic Environmental Law for limited public consultation. On 28 February 2011, La'o Hamutuk made a 48-page, English-language submission on this draft law, in three parts:

• Narrative portion, discussing some overall concepts and general ideas
• Article-by-article commentary, including a revised English translation of the draft law
• Annex with suggestions from Chris Serjak

The following is a summary of our submission, which was assisted by volunteer international experts.

A healthy environment is intrinsically valuable.

The general approach of this law appears to be that of resource users - seeing environmental components as something to be exploited for material gain, and the environment itself is a resource. A more proactive way would be to define a necessary quality of environment (including the intrinsic value of the environment and its components) and minimize damage, protect/conserve and strengthen natural systems to enable sustainable use.

Environmental involvement should be “mainstreamed.”

Protecting and preserving Timor-Leste’s environment is not the job of a single State Secretariat or Ministry, but should involve the active participation of people and institutions throughout the Government, as a corollary to the Principle of Participation. Just as “Gender Mainstreaming” makes everyone responsible to ensure that women have equal rights and opportunities, “Environmental Mainstreaming” would encourage everyone planning projects or making decisions for the state to consider environmental implications of their actions. Every policy, law or regulation should be written with an eye to how it can impact on or protect the environment.

Public consultations

We thank SEMA for holding this consultation relatively early, although two NGOs were the only ones asked for input on this highly complex, critically important law. We urge a thorough, informative, participative, transparent, linguistically-accessible and open-minded way public consultation in all districts and other rural communities.

International perspectives are increasingly seeing the environment as a human rights issue,  including communities' right to exercise (or withhold) free, prior, informed consent to projects which could affect them.

Over the years, La’o Hamutuk has written more than 30 submissions. Many of these suggested ways to make public consultation more effective, including:

• Advance distribution of materials in Tetum and/or Bahasa Indonesia as well as other languages, in electronic form (as well as on paper), and on the internet.
• Allow at least one month, and more time for issues that will benefit from outside expertise.
• Enlist local civil society organizations.
• Report back to those who participated with a list of all suggestions received, what actions were taken in response, and why.

Timor-Leste’s Environmental Licensing Decree-Law  came into force less than three weeks ago. It was enacted without any public consultation, even though its preamble says “public consultation is a fundamental right enshrined in the Constitution, and also an instrument of decision-making process, which allows integration of diverse views and perceptions of the project....” We hope that Article 11 ("Public Consultation") of this Decree-Law does not reflect SEMA’s view of a proper public consultation, as it is about socialization , rather than consultation. If we had been asked, we would have suggested adding that:

• Decision-makers should use the consultation process as a source of information and perspectives to enable them to make better decisions.
• Special efforts must be made to obtain wide participation from local communities which may be impacted, especially vulnerable and remote populations.
• Stakeholders, civil society organizations, the public and especially local communities must be invited to participate.
• Consultation must be completed, and its results incorporated, before laws are approved or projects are allowed to proceed.
• The laws should be clear who is responsible for each step of this process.

Before enacting this Basic Environment Law, it would have better to develop a  national environment policy through extensive public consultation. Without such a policy, the principles underlying this law (to the extent that they exist) do not represent broad-based Timorese wishes and desires.

Environmental Licensing Decree-Law

Had there been a public consultation on the Environmental Licensing Decree-Law, we would have pointed out other basic weaknesses, including these examples which are also relevant to the Basic Environment Law:

• The sanctions are so small as to be meaningless for a large company – all they can lose is what they gained, so it’s a no-lose gamble to profitably destroy the environment.
• There is no obligation or sanction on state agencies or officials for violating this law.
• There is no provision allowing a potentially impacted community or person to ask a court to issue an injunction to delay or stop a project.
• The Law fails to acknowledge the potential for significant environmental impacts from the cumulative effects of small individual activities.
• The Evaluation Committee which recommends the requirements and issuance of a license should be independent and include representatives from several sectors.

Complementary legislation

The proposed Basic Law on Environment omits many details which will be in later  regulations enacted in a closed process, including:

• Sanctions for violations
• Security deposit
• Rules for use of renewable resources
• Regulating marine and coastal activities
• Mining, sand and gravel, and other nonrenewable resources
• Pollution
• Solid waste management
• Hazardous waste
• Environment Fund
• Supervision and enforcement.

These laws should be enacted soon, as the passage of this Base Law for Environment creates a legal hodgepodge. This law could list the UNTAET and Indonesian laws which remain in force, providing more legal certainty. Nevertheless, we do not encourage hasty enactment of Timor-Leste’s environmental legal framework. The weaknesses of the Environmental Licensing Decree-Law demonstrate the dangers of bypassing public consultation and Parliamentary debate.

Climate Change

Although climate change caused by the emission of greenhouse gases affects most of our people, it has been omitted from this draft law. A separate law to implement our treaty obligations may be also appropriate.

Although our emissions are low or exported, this will change when heavy oil power generation starts, the PEDN is implemented, the Tasi Mane petroleum corridor is built, and an LNG plant for Greater Sunrise comes on-line. However, as a signatory to the UNFCCC and Kyoto Protocol, Timor-Leste is committed to mitigation actions.

The people must act if the regulators fail to.

Even with environmental mainstreaming, there will be times when an destructive project has so much money or political backing that it may proceed in spite of violating this Law.

This can be made less likely with a mechanism where the courts can stop a project even if it has been licensed. Citizens who have been or will be affected by an activity should have standing to bring such a case to court, and judges should be empowered to issue temporary or permanent injunctions based on legal and scientific evidence, which can direct officials or project promoters to take certain actions or face criminal sanctions.

In addition to transparency already required by this law, the government should be required to give reasons for its decisions, demonstrating that they are consistent with the goals of the legislation.

Petroleum activities are more dangerous on shore than at sea.

Timor-Leste has been through several EIA processes for off-shore oil exploration. Although La’o Hamutuk participated in those processes, we were surprised to hear them cited as model processes. They are only good in comparison with the lack of assessment or consultation for virtually all other environmentally-sensitive projects, such as the heavy oil power plants.

Timor-Leste so far has experienced only a small taste of the petroleum industry, as all activities have been far out at sea. When onshore activities like the Tasi Mane project and the onshore LNG plant begin, the impact on human life, local communities and people’s livelihoods, as well as on complex land and coastal ecosystems, will be much greater.

Petroleum regulation here has been complicated by overlapping jurisdictions between DNMA, ANP and SERN, and by pressures to maximize short-term state revenues and company profits from petroleum activities.

La’o Hamutuk's 2008 report Sunrise LNG in Timor-Leste: Dreams, Realities and Challenges contains many environmental observations and recommendations, including:

• An LNG Project could double Timor-Leste’s carbon dioxide emissions to the atmosphere and will generate significant amounts of polluting materials, such as hydrogen sulfide, oils, garbage, sanitary water, and other waste. Timor-Leste currently has insufficient laws or capacity to regulate, monitor and control waste generation and pollution of this scale, and many important steps need to be taken:
• The Government should revise the Law on Environmental Impact Assessment. An EIA should include a detailed Environment Management Plan.  The EIA process should include informed local consultation and consent.
• A Pollution Control Law should specify limits to pollutants, including CO2 and other greenhouse gases, chemicals which affect sea, ground water and soil quality, as well as issues like flaring and noise pollution.
• A base law on the environment, incorporating pollution control and environmental impact assessment laws should also define conditions for decommissioning.
• Each law developed should include sanctions and/or penalties which are severe enough to compel compliance. Contractual agreements should stipulate that the operating companies obey these laws.

Conclusion

This draft law presumes that sanctions will deter destructive practices and encouraging those which protect the environment. However, has no strategic overview of the  system, and focuses on monitoring environmental damage after the event and finding out who should pay compensation. In the real world, the penalty often is cheaper than the value of the environmental degradation, or in many cases the pollute’ cannot be held to account.

Issues raised in the article-by-article part of our submission:

• Stronger and more specific wording, with loopholes or qualifications removed and implementation responsibility clarified.
• More attention to spiritual and cultural benefits from the environment and environmental services, rather than just economic benefits.
• Define "Ecosystem Services" (services provided by ecosystems including water purification, pollination, erosion control, soil formation and nutrient recycling), "Endangered Species," and "Vulnerable Groups" (women, the elderly, youth, poor, ethnic minorities, religious minorities, the disabled and displaced persons, as well as subsistence farmers and fishers).
• Strengthen references to international treaties, including advocacy in international fora for reduced carbon emissions and other environmental policies.
• Prioritize scientific expertise and evaluation in making decisions, to balance political and commercial pressures.
• Improve the quality, quantity, accuracy, and completeness of information distributed to the public, as well as transparency and reporting back regarding environmental monitoring.
• Develop how the state will recognize and promote Tara Bandu.
• Include lian nain and other traditional leaders in informing and representing their communities.
• Increase fines and penalties to deter violations.
• Improve coordination with land and planning related processes and legislation.
• Add Environmental Quality Standards on biodiversity and cultural resources .
• WHO standards are inadequate in the interim.
• Include freshwater and riparian ecosystems as renewable resources.
• Recognize that air and soil may not be renewable in human time-scales.
• Give more attention to dams, storm water runoff, waste disposal and activities at sea.
• Ban the importation of genetically modified organisms.
• Clarify confusion in institutional jurisdictions for extractive industries.
• Be more careful about exempting small-scale or household extractive use.
• Clarify environmental rules for sand and gravel extraction, and don't exempt beaches.
• Include concerns about negative impacts of some alternative energy.
• Use a broader concept of visual pollution.
• Remove support for carbon and emissions trading.
• Establish a governmental environment policy for procurement and construction.
• Clarify how compensation and benefits will be distributed to communities.
• Ensure that citizens can act if state agencies fail to perform their duties.