'No-liability' settlements mooted to tackle haze

NEO CHAI CHIN Today Online 16 Mar 16;

SINGAPORE — In place of criminal proceedings, could the Singapore authorities allow companies accused of causing or contributing to transboundary haze the option to take remedial action without admitting liability?

Such action, which could involve setting up trust funds for the medical costs of people harmed by the haze or out-of-court settlements, was mooted by an academic yesterday at a seminar on domestic and international law responses to transboundary haze held at the Singapore Management University.

The power to facilitate settlement agreements could reside with the director-general of the National Environment Agency (NEA), adding to the arsenal provided for under Singapore’s Transboundary Haze Pollution Act (THPA), which took effect in September 2014, said Assistant Professor Mahdev Mohan.

Asked if settlement agreements would let errant companies off the hook without any admission of liability, he said they would still be held accountable to the terms of the settlement and NEA must be satisfied with the remedial action. Settlement agreements could at least be a stop-gap measure, said Asst Prof Mahdev, given some challenges in enforcing the THPA previously noted, such as complex land ownership laws in Indonesia.

No company has yet been hauled to court for contributing to transboundary haze, although the NEA issued preventive notices to six companies in Indonesia last year.

Another way of tackling the haze highlighted yesterday was the use of investment treaties: An affected Singapore firm with investments in Indonesia, such as holiday resorts or business contracts, could potentially pursue claims against the Indonesian government for harm suffered, said Mr Mark Mangan, a partner at law firm Dechert. Firms, called “qualifying investors”, could claim for lost income and other damages.

Such action through investment treaties do not require one to identify the fire-starters or pinpoint where exactly the fires are coming from. “It’s enough to say the government itself is not doing enough to stop it,” said Mr Mangan at the seminar organised by SMU’s Centre for Cross-Border Commercial Law. NEO CHAI CHIN

Look into ‘no-liability’ haze settlements with caution
DARREN CHAN KENG LEONG Today Online 19 Mar 16;

I refer to the report “‘No-liability’ settlements mooted to tackle haze” (March 16) and agree with allowing companies accused of contributing to transboundary haze to take remedial action without admitting liability. Caution must be exercised, however.

The National Environment Agency (NEA) should look into such settlements as an instructive and deterrent measure only for companies that have flouted the regulations once, and give them a warning on top of that chance to rectify their mistakes.

Repeat offenders must be subjected to criminal proceedings, and subsequent contributions to the haze situation met with harsher penalties, owing to the destructive environmental and health impact of illegal clearing of land on the locals, wildlife and neighbouring countries.

The NEA should continue to monitor companies that persistently contribute to the haze, to ensure they are held accountable. Also, the law should have more teeth in nabbing companies that flout the rules despite preventive notices issued to them.

The NEA should study areas where the Transboundary Haze Pollution Act (THPA) can be beefed up, and continue to work with the Indonesian authorities to overcoming the challenges of their land ownership laws.

As for using investment treaties, it would only be a temporary solution, with short-term effectiveness. A tougher stance against errant companies is needed to combat the haze situation, and legal land-clearing techniques must be implemented.

Perhaps there could be a portal for anonymous tip-offs to identify more companies that flout the THPA, so that the authorities can proceed with the appropriate investigations and actions.

More should be done to conserve the environment and protect people’s health through the joint commitment and work of the Singaporean and Indonesian authorities to clamp down on errant companies.

Criminal court procedures must still follow, to send a strong signal to companies about the consequences of contributing to haze, as it is unfair when neighbouring countries are affected.

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