The many faces of strict liability in Indonesia's wildfire litigation

Abstract

Since 2013, the Indonesian Ministry for the Environment and Forestry has sued several timber and oil palm plantations for fires that have occurred within concession areas. These government lawsuits are important, not just for reducing the number of fires in Indonesia, but also for galvanizing a significant development of the nation's law of civil liability for environmental damage. In these cases, the government has attempted to ground its suits in two types of liability, namely the liability for an unlawful act and strict liability. The article observes some inaccurate interpretations of strict liability in wildfire litigation, where the liability rule is considered as part of the liability rule for an unlawful act, and as a liability rule resulting from the application of the precautionary principle in a fault‐based liability rule. The application of strict liability starts with the identification of whether a defendant's activity can be considered an abnormally dangerous activity. The article finds that activities related to the clearing and drainage of peatlands are abnormally dangerous because they significantly increase the risk of fires and constitute an unnatural use of land. It concludes that the application of strict liability to wildfires is defendable in so far it can be proven that the defendant has previously conducted the clearing and drainage of peatlands.