Relevant Global Findings
On 22nd May 2023, the World Meteorological Organization (WMO) published their new findings stating that climate change has caused over two million deaths and US$4.3 trillion in economic losses over the past fifty years, highlighting the fact that the most vulnerable and impoverished countries have suffered the most. A few weeks later, the UN reported that July this year was pronounced the warmest ever on record. The findings outlined in a recent report by the LSE’s Grantham Research Institute on Climate Change and the Environment stressed that land-use change, mostly deforestation, contributes 12-20% to greenhouse gas emissions globally.
While the connection between deforestation and now inescapable effects of climate change has been well-documented and much publicised, some of the pressing issues disproportionately affecting many Indigenous communities today arguably deserve more attention than they have received thus far. Since climate litigation has shown to be an ever-expanding landscape, this article will shed light on relevant recent developments and delineate how corporates and governments may choose to consider climate risk moving forward. Threatened by deforestation, a biodiversity hotspot and home to the world’s third largest tropical forest[i] and many Indigenous communities, Indonesia’s Tanah Papua provides for an excellent case study of these current issues.
An extensive report accompanied by a policy brief under the joint title “Forest Politics in Indonesia: Drivers of Deforestation and Dispossession”, published in March 2023, highlights “the political dynamics shaping natural resource management in Indonesia”.[ii] This type of “forest politics”, the authors contend, undermine the efforts to curb deforestation while “rely[ing] on the administration and rule of law to regulate what companies do”.[iii] Despite Indonesia’s existing legal framework which regulates licencing procedures and the obligations for companies to obtain the relevant community’s consent prior to commencing their activities, this report stresses the disparity between the regulatory framework and the situation on the ground.[iv]
The six easternmost provinces of Indonesia, hereinafter referred to as Tanah Papua, sit on the western part of the island of New Guinea. Tanah Papua has been hailed for the high number of different ecosystems which contribute to its significance as a major centre of biodiversity.[v] As one of the signatories to The Kyoto Protocol[vi] as well as the Paris Agreement[vii], Indonesia introduced a forest-clearing moratorium (in force 2011-2018) for conversion of primary forests and peatlands. Numerous academic studies, however, have since found this moratorium to have had underwhelming results.[viii] Between 2001 and 2018, a period covering the time of the moratorium, a report by the Center for International Forestry Research (CIFOR) concluded that oil palm and pulpwood companies cleared 215,289 ha in Tanah Papua.[ix] On the topic of rates of deforestation, the “Forest Politics” report offers a full page of conclusions emphasising the great disparity between the relevant figures provided by the Indonesian government and those reported by various non-governmental agencies.[x] One of their sources for non-governmental figures is the Global Forest Watch which reported that Indonesia lost 28.6 million hectares of tree cover, creating 19.7 billion tonnes of CO₂e emissions for the period between 2001 and 2021.[xi]
Within the same month of the report’s publication (March 2023), the report’s claim that practice has shown the potential inadequacy of the above-mentioned regulations has proven to be a legitimate one, as Hendrikus ‘Franky’ Woro, an Indigenous leader in Tanah Papua, filed a lawsuit against Malaysian-owned palm oil company PT Indo Asiana Lestari (PT IAL).[xii] Requesting that the company’s palm oil permit be revoked, Woro alleges that the provincial government did not disclose all the necessary information pertaining to the permits granted to PT IAL, thus ignoring the customary ownership of the Woro clan’s land. A member of Woro’s legal team, Sekar Banjaran Aji, further added that the estimated deforestation emission of PT IAL’s project to be “approximately 23 million tonnes of CO2,” equivalent to “five percent of the nation’s annual carbon emission level in 2030”.[xiii] While Woro’s case is ongoing at the time of writing this article, it seems evident that “forest politics” have caused and continue to cause much environmental destruction in Tanah Papua.
Simultaneously, a widely publicised case in England offers a glimpse into new paths for climate litigation. In the world’s first case of its kind, ClientEarth sued eleven directors of Shell plc in a derivative action alleging breach of Companies Act 2006 claiming they had not adequately managed climate risk (ClientEarth v Shell Plc and others  EWHC 1137 (Ch)).[xiv] Despite the case being refused permission to proceed (this dismissal is currently being challenged)[xv], this case has already received much media attention and brought Shell’s reputation under heightened media scrutiny[xvi]; arguably, it will have also helped spark future derivative claims. In the case of Tanah Papua, one has to wonder if these kinds of novel legal avenues will be pursued by those looking to call directors of timber-extracting and palm oil companies to account. While shareholder action may not be an ideal remedy for stakeholders seeking to combat land grabbing and dispossession, as seems to be the case with the allegations outlined in Woro’s claim, it certainly highlights the risk to companies and their directors who may not have adequately addressed relevant social and environmental impacts.
Even though Indigenous communities are overwhelmingly on the frontline of the climate crisis[xvii], faced with the immediate climate change-driven issues, they have been by and large excluded from the decision-making processes which directly affect their lives and livelihoods. The contentious 2001 Special Autonomy Law in Tanah Papua is another good example of Indigenous communities being refused the promised involvement within a relevant legislative process. The 2001 Law required any potential amendments to undergo a consultation process through the Papuan People’s Representative Council (DPRD) and the Papuan People’s Assembly (MRP)[xviii]. According to a comprehensive report by The Simon-Skjodt Center, however, the Indonesian parliament ratified and extended the law in 2021 for another twenty years without the necessary consultations.[xix]
While Indigenous communities are battling “forest politics” and as green-collar lawyers keep finding new avenues to bring environmental cases before courts across the globe, climate-change litigation continues to increase[xx] and so, too, do global warming and its tangible impacts on some of the world’s most vulnerable communities. The disappointing conclusion is that present regulatory frameworks in Tanah Papua, Indonesia, and elsewhere in the world are failing to catch up, let alone anticipate potential environmental and social abuses as well as mitigate the impacts of global warming with the appropriate sense of urgency.
Author: Svetlana Ehtee, Ph.D., intern at Schouten-Korwa
Works Cited and Consulted for “Relevant Global Findings”
“Extreme Weather Caused Two Million Deaths, Cost $4 Trillion over Last 50 Years.” UN News, 22 May 2023, https://news.un.org/en/story/2023/05/1136897.
“Hottest July ever signals ‘era of global boiling has arrived’ says UN chief.” UN News, 27 July 2023, https://news.un.org/en/story/2023/07/1139162.
Savarala, Sameera. “It’s Time to Address the Devastating Injustice of Loss and Damage.” UNDP, 26 June 2023, https://climatepromise.undp.org/news-and-stories/its-time-addres-loss-and-damage-climate-change-negotiations-cop28.
“What is the Role of Deforestation in Climate Change and How can ‘Reducing Emissions from Deforestation and Degradation’ (REDD+) Help?.” LSE Grantham Research Institute on Climate Change and the Environment, 10 February 2023, https://www.lse.ac.uk/granthaminstitute/explainers/whats-redd-and-will-it-help-tackle-climate-change/.
[i] “Indonesian Forests & Palm Oil.” Greenpeace, https://www.greenpeace.org/usa/issues/indonesian-forests-palm-oil/.
[ii] Berenschot, W., Aspinall, E., Colchester, M., MacInnes, A. “Forest Politics in Indonesia: Drivers of Deforestation and Dispossession – Policy Briefing”. KITLV; Forest Peoples Programme; University of Amsterdam; 2023, p. 1.
[iv] Berenschot, W., Aspinall, E., Colchester, M., MacInnes, A. “Forest Politics in Indonesia: Drivers of Deforestation and Dispossession – Full Report”. KITLV; Forest Peoples Programme; University of Amsterdam; 2023, pp. 3-4.
[v] Marshall, Andrew J. “The Diversity and Conservation of Papua’s Ecosystems.” The Ecology of Papua: Part Two, edited by Andrew J. Marshall and Bruce M Beehler, Tuttle Publishing, 2012, p. 755. https://sites.lsa.umich.edu/ajmarsha/wp-content/uploads/sites/162/2014/09/Marshall-2007-Papuan-ecosystems.pdf.
[vi] Murdiyarso, D. “Implications of the Kyoto Protocol: Indonesia’s Perspective.” International Review for Environmental Strategies, vol. 5, no. 1, 2004, pp. 145-156. https://www.iges.or.jp/en/pub/implications-kyoto-protocolindonesia%E2%80%99s/en.
[viii] See, for example: Groom, Ben, et al. “Carbon Emissions Reductions from Indonesia’s Moratorium on Forest Concessions Are Cost-Effective Yet Contribute Little to Paris Pledges.” Proceedings of the National Academy of Sciences of the United States of America, vol. 119, no. 5, 2022, https://doi.org/10.1073/pnas.2102613119 and Austin, K.G, et al. “Shifting Patterns of Oil Palm Driven Deforestation in Indonesia and Implications for Zero-Deforestation Commitments.” Land Use Policy, vol. 69, 2017, pp. 41–48., https://doi.org/10.1016/j.landusepol.2017.08.036.
[ix] Gaveau, David. “Drivers of Forest Loss in Papua and West Papua”. Center for International Forestry Research, 2019, p. 2. https://www.cifor.org/publications/pdf_files/factsheet/7444-factsheet.pdf.
In terms of the breakdown of forest loss in Tanah Papua during the course of the years covered by the research, CIFOR’s report states that “[f]orest loss was moderate between 2001 and 2010, with an average of 26,000 ha cleared each year […]. Since 2011, forest loss has trended upward sharply, reaching a maximum in 2015 (103,000 ha lost). This acceleration is most evident in Papua Province, where forest loss peaked in 2016 (59,000 ha). In West Papua, forest loss has been more constant, except for a sharp peak in 2015 (44,000 ha) caused by El-Niño- driven forest fires in Fakfak, Kaimana, and Sorong Selatan regencies (Gaveau 5).” For further information, refer to “Indonesia”, Global Forest Watch, https://www.globalforestwatch.org/.
[x] Berenschot, W., Aspinall, E., Colchester, M., MacInnes, A. “Forest Politics in Indonesia: Drivers of Deforestation and Dispossession – Full Report”. KITLV; Forest Peoples Programme; University of Amsterdam; 2023, pp. 10-11. For further information see also “Deforestation in Papua”, NASA Earth Observatory, n.d., https://earthobservatory.nasa.gov/images/148021/deforestation-in-papua.
[xi] Please note that the figures in the “Forest Politics” report differ slightly from the ones provided here. The report’s figures taken from Global Forest Watch cover the period between 2001 and 2020, whereas the ones provided herein cover 2021 as well (2001-2021). The full quotation from the report is as follows: “[a]ccording to the NGO, Global Forest Watch, between 2001 and 2020, Indonesia destroyed 28 million hectares of forest, losing 17 percent of its forest cover and creating 19 billion tonnes of CO₂ emissions” (“Forest Politics in Indonesia: Drivers of Deforestation and Dispossession – Full Report” 10). It is also important to stress that the Global Forest Watch has revised these numbers since the initial version of this article: the relevant CO2e emissions for the period 2001-2021 is currently estimated to be higher, at 20.6Gt. For further information, please refer to the figures provided for “Indonesia” on the Global Forest Watch’s website.
[xii] “West Papuan Indigenous Defender Files Lawsuit Over Palm Oil Company Forestland Grab.” Greenpeace Indonesia, 13 March 2023, https://www.greenpeace.org/southeastasia/press/58630/west-papuan-indigenous-defender-files-lawsuit-over-palm-oil-company-forestland-grab/.
[xiv] Holmes, L., Newcombe, I. “ClientEarth v Shell Plc: Case in Summary.” Womble Bond Dickinson, 22 May 2023, https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/clientearth-v-shell-plc-case-summary, Carrington, D. “Shell Directors Personally Sued over ‘Flawed’ Climate Strategy.” The Guardian, 9 February 2023, https://www.theguardian.com/environment/2023/feb/09/shell-directors-personally-sued-over-flawed-climate-strategy and “Climate Change and Directors’ Duties – ClienthEarth v Shell Decision Provides Comfort for Directors”. Watson Farley & Williams, 17 May 2023, https://www.wfw.com/articles/climate-change-and-directors-duties-clientearth-v-shell-decision-provides-comfort-for-directors/.
[xv] Ridley, K. “ClientEarth Challenges UK Court Dismissal of Shell Climate Lawsuit”. Reuters, 19 May 2023, https://www.reuters.com/sustainability/clientearth-challenges-uk-court-dismissal-shell-climate-lawsuit-2023-05-19/.
[xvi] Smits van Waesberghe, Noëlle. “Planet on Trial: the Surging Trend of Corporate Climate Litigation.” Sancroft, 21 March 2023, https://sancroft.com/2023/03/21/planet-on-trial-the-surging-trend-of-corporate-climate-litigation/.
[xvii] Savarala, Sameera. “It’s Time to Address the Devastating Injustice of Loss and Damage.” UNDP, 26 June 2023, https://climatepromise.undp.org/news-and-stories/its-time-addres-loss-and-damage-climate-change-negotiations-cop28.
[xviii] Supriatma, Made. “Don’t Abandon Us: Preventing Mass Atrocities in Papua, Indonesia”, United States Holocaust Memorial Museum, The Simon-Skjodt Center for the Prevention of Genocide, July 2022, p.8, https://www.ushmm.org/genocide-prevention/countries/indonesia/preventing-mass-atrocities-in-papua-indonesia.
[xx] Setzer, J., Higham, C. “Global Trends in Climate Change Litigation: 2023 Snapshot”. LSE Grantham Research Institute on Climate Change and the Environment, 29 June 2023, https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2023-snapshot/, and Setzer, J., Higham, C. “Global Trends in Climate Change Litigation: 2022 Snapshot”. LSE Grantham Research Institute on Climate Change and the Environment, 30 June 2022, https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2022/.