Impact of Failure of Alternative Dispute Resolution between Samin Indigenous Movement and PT Semen Indonesia (Persero) Tbk

The existence of environmental management that is wise and wise itself has also been contained in the Constitution in Indonesia, especially Article 28H paragraph (1) and Article 33 paragraph (4). To ensure the role of human beings to the environment remains conservative, the state regulates and controls existing natural resources for the greatest prosperity of the people as stated in the Indonesian constitution. This aims to make natural resource management can be utilized not only for the current generation but also for future generations, as well as to maintain the ecosystem to remain sustainable. However, the existence of a green constitution along with recognition & respect of customs contained in the constitution (law in the books) has not yet fully built a strong interdependence (law in action) to create environmental justice. This is evidenced by the many conflicts that occur between indigenous peoples and corporations. The problem studied in this study is the impact of the failure of alternative environmental dispute resolution between the samin indigenous movement and PT Semen Indonesia (Persero) Tbk (hereinafter abbreviated as PT. Semen Indonesia). This study uses a type of socio-legal law research with a sociological approach located research in Rembang. The results showed that every problem that intersects with indigenous peoples should be resolved harmoniously and peacefully with deliberation and consensus. In addition, it is necessary to involve indigenous peoples in determining environmental policies. Then there needs to be harmonization and internalization between environmental policy and local community culture (indigenous legal community).

Perlindungan Hukum Terhadap Masyarakat yang Terpapar Limbah B3

This research examines the legal protection of people who are victims of the B3 madical waste. This research is a qualitative research with literature study. The main sources in this research are written sources in the form of books, research results, and laws which related to the issue. The results showed that the law provides protection to people who are exposed to the B3 madical waste, both criminal and civil law. When a dispute happening between the community and the company, the solution can be done in two ways, litigation and non-litigation. Settlement of environmental disputes through channels outside the court according to Article 85 paragraph (3) can only be done by using the services of a mediator and / or arbitrator to help resolve the dispute. Active community participation can be carried out by referring to Article 86 of the PPLH Law by establishing a free and impartial environmental dispute resolution institution facilitated by the government and local governments.

MEKANISME PENENTUAN GANTI RUGI ATAS KERUSAKAN LINGKUNGAN HIDUP OLEH PERUSAHAAN: PENDEKATAN PENYELESAIAN SENGKETA KEPERDATAAN

Penulisan artikel jurnal ini bertujuan untuk mengetahui bagaimana model penyelesaian sengketa lingkungan hidup melalui jalur keperdataan dan untuk mengetahui mekanisme dan pengaturan mengenai penentuan ganti rugi atas kerugian yang dialami dalam sengketa lingkungan hidup. Metode yang digunakan dalam penelitian hukum ini adalah metode penelitian hukum normatif, dengan menerapkan teknik deskripsi analisis yang menjawab permasalahan berdasarkan analisis bahan hukum serta perundang-undangan. Hasil penelitian menunjukan bahwa, terdapat 2 model penyelesaian sengketa lingkungan hidup melalui jalur keperdataan yang dapat ditempuh, yaitu jalur litigasi dan jalur non-litigasi. Pada penyelesaian sengketa melalui jalur litigasi, dalam mengajukan gugatan dapat dilakukan melalui beberapa model gugatan, yaitu Gugatan Perorangan, Gugatan Perwakilan Kelompok, dan Gugatan Organisasi Lingkungan Hidup. Sedangkan, pada jalur non-litigasi dapat dilakukan dengan cara negosiasi, mediasi, konsiliasi, dan arbitrase. Mengenai mekanisme dan pengaturan penentuan ganti rugi atas kerugian yang dialami dalam sengketa lingkungan hidup diatur dalam Undang-Undang Nomor 32 Tahun 2009, dimana pertanggung jawaban terhadap kerusakan lingkungan hidup dipertanggung jawabkan melalui tanggung jawab mutlak terhadap kerugian yang telah terjadi. Tanggung jawab mutlak ini, pihak penggugat tidak perlu membuktikan unsur kesalahan serta dapat dibarengi dengan ketentuan beban pembuktian terbalik. Mengenai pedoman penghitungan kerugian lingkungan hidup akibat kerusakan lingkungan hidup diatur dalam Peraturan Menteri Lingkungan Hidup RI No. 7 Tahun 2014. Writing this journal article aims to find out how to model environmental dispute resolution through civil channels and to find out the mechanisms and arrangements regarding the determination of compensation for losses experienced in environmental disputes. The method used in this legal research is the method of normative legal research, by applying the analysis description technique that answers problems based on the analysis of legal and statutory materials. The results showed that, there are 2 models of environmental dispute resolution through civil channels that can be taken, namely the litigation route and the non-litigation route. In dispute resolution through litigation, filing a lawsuit can be done through several lawsuit models, namely Individual Lawsuit, Class Representative Lawsuit, and Environmental Organization Lawsuit. Meanwhile, the non-litigation route can be carried out by means of negotiation, mediation, conciliation and arbitration. Regarding the mechanism and arrangement for determining compensation for losses suffered in environmental disputes is regulated in Law Number 32 of 2009, where responsibility for environmental damage is accounted for through absolute responsibility for the losses that have occurred. This absolute responsibility, the plaintiff does not need to prove the element of error and can be accompanied by the provision of a reverse burden of proof. Regarding the guidelines for calculating environmental losses due to environmental damage, it is regulated in the Regulation of the Minister of Environment of the Republic of Indonesia No. 7 of 2014.

NATIONAL GREEN TRIBUNAL OF INDIA AND ENVIRONMENTSAL JUSTICE

Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the UN‘s 2030 agenda for Sustainable Development and the Sustainable Development Goals (SDGs), particularly SDG Goal 16—‗to provide access to justice for all and build effective, accountable and inclusive institutions at all levels‘, according to Pring and Pring (2016). To accomplish this goal, establishing specialised courts and tribunals dealing exclusively with environmental matters is becoming essential. All over the world, more than 1200 environmental courts and tribunals are functioning in various countries, and more such courts have been planned for the future, as discussed by Pring and Pring (2016). As far as India is concerned, the need for establishing environmental courts in India arose in different circumstances and in different times. In the cases of M.C. Mehta Vs. Union of India (AIR 1987 SC 965), Indian Council for Enviro-Legal Action Vs. Union of India (1996 3 SCC 212) and A.P. Pollution Control Board Vs. Professor M.V. Nayudu (1992 2 SCC 718), the Indian Supreme Court (orders of 1986, 1996, 2001) observed that as environmental cases frequently involve assessment of scientific data, setting up environmental courts on a regional basis with a legally qualified judge and two experts would help speed the judicial process.

Effectiveness of mediation in the resolution of environmental complaints against the activities of gold mining industries in the Witwatersrand region

In the Witwatersrand gold mining area, there have been recurring public complaints about dust dispersed from gold tailings storage facilities (TSFs) that traverse the landscape. Although weather aggravates the frequency and intensity of dust emission from TSFs in the study area, the rapid conversion of buffer areas around the dumps to residential land–use is exposing more people to dust hazards. This study assessed the effectiveness of Crown Mines Dust Monitoring forum in Johannesburg as an alternative environmental dispute resolution mechanism. Records of complaints from 1995 to 2010 that were made available through the forum were collated and analysed with the aid of descriptive statistics. Within the study period, complaints about mine pollution were more frequent between August and October, i.e. the dry months. More than 70% of the complaints were made by companies whose properties, operations and employees were affected by dust emission from the TSFs. While 52% of the complainants reported pollution problems for the first time within the study period, other cases were follow-up to previous complaints. Mining companies responded to 31% of the public’s grievances about dust pollution from their facilities within one week and another 12% in two weeks; response to the remaining complaints took much longer time. As part of mines’ response to public complaints, site visits were organised to indicted facilities, and pollution control measures and mitigation plan adopted at sites were also explained. Moreover, additional control measures were installed in critical circumstances to ameliorate dust pollution. Only a few of the complaints reported to the forum escalated to litigation or issuance of penalty by government agency. Although, the forum provided an avenue for resolution of environmental conflicts in a pragmatic and mutually beneficial manner, the right of the public to a clean environment is still not being realised fully.