INDONESIAN ENVIRONMENTAL LAW DEVELOPMENT AND REFORM: FROM DUTCH ORDONNANTIE, THE 1982 BASIC ENVIRONMENT MANAGEMENT ACT TO THE HUMAN ENVIRONMENT MANAGEMENT ACT OF 1997 *
I Nyoman Nurjaya
Indonesia has been well known as a rich country in term of its natural resources and biological diversity in all over the world. Nevertheless, since the last more than three decades it could be witnessed that both natural resources stock and commodity of Indonesia have been decreasing and degrading in the sense of their quality and quantity in accordance with the rapid execution of economic development in the country. As such, natural resources mainly forest, gas and oil, mining, and fishery have widely been explored and exploited in the name national development and enhancing State revenue purposes in particular. Consequently, national development which mainly directed and targeted to keep increasingly economic growth and especially the development of State revenue must be costly paid by a serious economical loss and ecological degradation, as well as social and cultural destruction in the life of local and adat communities in the regions of Indonesia.
Those ecological degradation, economical loss, and social-cultural destruction mentioned above are primary emerged because of the differentiation both interest of natural resources control and utilization between Central Government and the local people. In the eyes of academic lawyer, the implications of which are particularly caused by the differential perception to deal with natural resources policies, laws and regulations between Central Government and the Adat Communities in the regions. In this respect, the Government tends to enforce State laws namely laws and regulations to order and control resources in the name of development, and on the other side the local people employ their own customary law (adat law/hukum adat) to control and manage natural environment in the territories they depend on. Hence, conflicts over natural resources laws and management between Government and the local people then could not be deflected in most regions of Indonesia.
The essence of the environment is actually the essence of human life. It refers to the air, water, land, forest, river, lake, coast, sea, oil and gas, mining and mineral, flora and fauna (biological diversity) and everything within the earth and natural resources contained therein. It is, therefore, human environment defined as a unity of the spatial entity with all objects, potentials, conditions and living organisms, including man and his behavior, which influence the continuance of the life and welfare of human being and other living organisms. Human environment is naturally a system of life comprising the organic natural environment, inorganic natural environment, social environment, and the man-made environment, which influence the continuity of life and the welfare of human being and other living organism.
In the last more then three decades, Environmental Law is a subject that has attracted a great deal of attention among law academics and scholars, government and law enforcement officials, as well as law students and lawyers. This is consistent with the escalating natural environmental problems that are faced by both developed and developing countries all over the world, and in the country of Indonesia in particular. In the case of Indonesia, the subject of environmental law was first introduced and taught at the selected Faculties of Law in the country since 1982, in the same year as the enactment of Basic Human Environment Management Act of 1982 (UU Nomor 4 Tahun 1982 tentang Ketentuan-ketentuan Pokok Pengelolaan Lingkungan Hidup). In 1997 this Act was then replaced by the Human Environment Management Act of 1997 namely UU No. 23 Tahun 1997 tentang Pengelolaan Lingkungan Hidup. This later legislation was developed to improve and establish its role and function in coping and settling various living environmental problems and legal cases that continue to emerge in conjunction with the rapid implementation of national development in the country. Within the universities, the legislation has contributed to the enrichment and development of the subject of environmental law for academic research and teaching purposes.
This paper attempts to examine the development of environmental law and its substances with special reference to the environmental law development and reform as well as justice system and enforcement in the country of Indonesia. Discussion will begin from the explanation of ideology of the State in controlling managing natural environment and resources which based on the 1945 Constitution particularly Article 33 Paragraph 3 and the existing laws and regulations which relate to the management of natural resources and environment. It will be sustained to the short description regarding historical background of the establishment environmental law of Indonesia. Environmental justice system and enforcement which normatively defined and regulated within the Human Environment Management Act of 1997 will be discussed and analyzed in order to understanding on how the Indonesian environmental law has been established and reformed in accordance to the national law development of Indonesian as a whole.
*Paper presented at the International Seminar on Environmental Law Development and Reform of Asian Countries, Canada, and Australia: A Comparative Perspective, jointly organized by Faculty of Law Brawijaya University and Faculty of Law Trisakti University on 25 to 27 February, 2008 at Klub Bunga Butik Resort, Batu, Malang, East Java.