Evidential Obstacles. A number of commentators on environmental dispute resolution have noted the difficulties inherent in establishing legal proof of allegations of pollution or environmental damage in a court of law. This has certainly been the case in Indonesia where the legal and technical 4 see discussion of the history of legal aid and the concept of ‘structural’ legal aid as a vehicle for social and political reform in Xxxxx Xxxxxx Xxxxxxxx, BŒMtYŒM HYkYM DU IMdOM9FUŒ (Jakarta: LP3ES, 1981).. 5 Rambun Tjaj, 2 July 1997. 6 Xxxxxx Xxxxxxx, "Walhi Minta Pembuktian Terbalik Buat Perusakan Lingkungan," T9MþO IMt9VŒtkUf, 21 April 2001. difficulties associated with proving pollution in court have provided another obstacle to environmental litigants. Xxxx Xxxxxx, the Director of WALHI, highlighted this problem, stating XXXXX has brought environmental cases to court nine times now and been defeated every time. The judges’ reason is usually a lack of evidence.7 Eye-witness accounts of pollution are usually given little weight, whilst laboratory tests which indicate excessive levels of pollutants may still not satisfy legal elements such as causation. The FŒVU MOVŒMŒ case illustrates this point. In that case, the Lubuk Pakam District Court failed to uphold a claim for environmental compensation despite considerable eye-witness and laboratory evidence of pollution. Critical information and evidence may also be difficult to obtain from uncooperative government agencies, especially in the absence of established procedures facilitating access to government or public information.8 Conversely, the few successful environmental claims discussed in chapters 2 and 3 generally featured evidence of a particularly strong and conclusive nature. For instance, in the BŒMg9V RUV9V case the plaintiffs’ claims of pollution were confirmed by research from several government agencies. This was further verified by the undisputed fact that the industries in question did not even own waste management units before 1996. The allegations of pollution were also supported by expert witnesses, whose testimony proved influential during the case. Similarly, in the WALHI V. FV99þOVt case the death of four men in the Lake Wanagon disaster was itself evidence of Freeport’s negligence in the matter, which was further confirmed by government investigation. Given the legal and technical complexities of proving pollution or environmental damage, however, it is quite rare that such conclusive and incontrovertible evidenc...
