SANDALWOOD AND ENVIRONMENTAL LAW IN EAST TIMOR

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http://www.eastimorlawjournal.org/Articles/sandalwood.html

 

ETLJ Article No 4 Year 2004

 

 

 

SANDALWOOD AND ENVIRONMENTAL LAW IN EAST TIMOR

 

 

 

Introduction

 

The island of Timor was famous centuries ago for its vast forests of

sandalwood trees. Even before the colonization by the Portuguese, the

existence of the sandalwood forests had been documented in 1436 by

Chinese traders. In those documents, Timor was described as " a region of

mountainous terrain covered in sandalwood trees and the country produces

nothing else. " The island of Timor was included in a map of the known

world in 1529 while Java was not. The first Portuguese person who

visited Timor, Duarte Barbosa, wrote in 1598 that " white sandalwood on

the island is very abundant and the Moors in India and Persia attached a

very high value to it with many benefiting from the sandalwood trees " .

 

 

 

During the Portuguese period, although other " commodities " such as

honey, wax and slaves were also exported from the island, the focus of

trade was sandalwood.

 

 

 

The influence of the sandalwood trade extended to the structure and

development of the local political systems. The power of kings on the

northern coast of Timor in the 16th century was a direct result of the

sandalwood trade.

 

 

 

The Destruction of the Sandalwood Forests of East Timor during the

Indonesian occupation

 

In analyzing the ecological impacts of the Indonesian occupation of East

Timor which began in 1975, Aditjonro notes that the monopoly on the

voracious exploitation of the sandalwood forests was controlled by a

company, PT Denok, run by a relative of one of the leaders of the

invasion, Sumampouw. In 1979, the principal shareholder of this company

set up another company dedicated to the export of sandalwood; namely, PT

Scent Indonesia and in one year of operation felled thousands of tons of

sandalwood. This company, through the use of the Armed Forces of

Indonesia, forced the East Timorese to log the sandalwood, without

regard to the age of the trees, even tearing out the roots of the trees.

Criticism of this practice went unheeded in Jakarta and, in 1982, PT

Scent Indonesia produced 240 tons of sandalwood timber and exported

large amounts of sandalwood oil. This went on for at least another 8

years. The company invested Rp1.2 billion - the largest investment in

East Timor - and employed 42 workers. In 1990, PT Scent Indonesia

claimed to have produced 465 tons of sandalwood oil and powder worth

Rp500 million. In the following 4 years, PT Scent Indonesia exported

sandalwood oil from Jakarta in 50 kg drums with a value of US$150 per

kilogram.

 

 

 

But the exploitation of sandalwood was not limited to oil and powder. In

1979, Sumampouw's relatives established another company, PT Kerta

Timorindo, which specialised in handicrafts and statuettes made from

sandalwood and marble, employed 30 workers in its factory near the

airport in Comoro, Dili, nearly all of whom were Javanese. The

statuettes were mainly of Buddha, Jesus and Mary which were sold to

Buddhists in East Asia and Catholics in Europe (principally, Italy) who

thought they were helping the East Timorese by buying these products but

who did not realised that they were assisting environmental destruction

in East Timor.

 

 

 

With this massive exploitation, the amount of sandalwood fell

dramatically and none was replanted.In 1986, 328 tons of sandalwood

timber, 300 kg of oil and 64.7 tons of powder were produced. Six years

later, production fell to 118 tons of timber and 40 kgs of oil and no

powder. Exports of sandalwood product fluctuated. In 1986, oil exports

were 2.3 tons; in 1987, 5.6 tons and, in 1988, 6.3 tons. This fell to

1.8 tons in 1989, climbed again to 3.8 tons in 1990. Exports of powder

fell from 109.7 tons in 1986 to 40 tons in 1990.

 

 

 

These facts demonstrate an ecological scandal. The Indonesian government

allowed the excessive exploitation of sandalwood in contravention of its

own environmental laws.

 

 

 

According to one source, the Portuguese banned the exploitation of

sandalwood in 1926 following its intensive exploitation for 300 years of

its rule in East Timor . Unfortunately, the excessive exploitation of

sandalwood showed that Indonesia was able to do in two decades what the

Portuguese were not able to do in four centuries; that is, almost

completely destroy the sandalwood forests of East Timor.

 

 

 

Regulation no. 2000/17 on the Prohibition of Logging Operations and the

Export of Wood from East Timor

 

This regulation was one of the earliest legislative interventions by

UNTAET. It came into force on 08 June 2000.

 

 

 

General Purpose

 

The general purpose of this regulation is to reduce deforestation in

East Timor pending an inventory of the forests of East Timor and the

establishment of a sustainable forestry industry . It did not purport to

amend the applicable environmental law in East Timor derived from the

Indonesian legal system and expressly provides that any such law which

provides greater protection than that contained in the Regulation

remained in effect.

 

 

 

General Prohibitions

 

The regulation set out the following prohibitions:

 

 

 

(a) the cutting, removal and logging of wood from land in East Timor;

 

(b) the export from East Timor of wood in any form, including logs,

planks, plywood or furniture, and

 

© the burning or any other destruction of forests.

 

 

 

These activities or attempts to perform these acts are offences.

 

 

 

Exemptions from the Prohibitions

 

But the Regulation also provided certain exemptions to these

prohibitions. Any person or legal entity who wished to conduct logging

operations or export wood in any form for the limited purposes of use by

the pharmaceutical industry, the cosmetics industry or " for such other

purposes and upon such conditions as deemed essential by UNTAET for the

economy of East Timor which were authorized by UNTAET Directive may

apply to the UNTAET Agricultural Affairs Unit (now the Forestry Unit of

the Department of Agriculture, Fisheries and Forests) for an exemption

to the prohibitions.

 

 

 

The second exemption to the prohibitions, which did not require any

application for exemption is in respect of logging operations for the

purposes of producing wood for traditional farming and other domestic,

traditional or cultural uses, the construction of traditional houses,

and the construction of religious buildings in East Timor. But this

second exemption applies only in respect of logging operations on land

that is below 1500 metres elevation and which has a slope of less than

25 per cent.

 

 

 

The third exemption to the prohibition on the export of wood pertained

to wood used locally to make handicrafts and exported by individuals as

part of personal household effects or luggage.

 

 

 

Penalties

 

The penalties for the offences of breaching the prohibitions or failing

to comply with any exemption conditions are severe. In addition to any

civil and criminal penalties provided for under the applicable law

derived from the Indonesian legal system, a person is liable to:

 

 

 

(a) to a penalty not exceeding US $5,000, to be determined by the Head

of the UNTAET Agricultural Affairs Unit; and

 

(b) to confiscation of the wood together with any tools, equipment and

vehicles used for the purposes of logging operations or the

transportation of wood subject to prohibition under this Regulation.

 

 

 

If the offence is committed by a legal entity other than a business

registered under UNTAET Regulation No. 2000/4 (now UNTAET Regulation No

2002/04), then the following penalties, in addition to the civil and

criminal penalties under the applicable law apply is a fine not

exceeding US $500,000, to be determined by the Head of the UNTAET

Agricultural Affairs Unit.

 

 

 

If the offence is committed by a business registered pursuant to UNTAET

Regulation No. 2000/4 (now UNTAET Regulation No 2002/04) then the

penalty, in addition to any civil and criminal penalty under the

applicable law, is a fine not exceeding US $500,000, to be determined by

the Head of the

 

Agricultural Affairs Unit as well as the cancellation of the

registration of that business and confiscation of the wood together with

any tools, equipment and vehicles used for the purposes of logging

operations or the transportation of wood.

 

 

 

If a legal entity which has obtained an exemption to the prohibition

fails to fulfill the conditions attached to any such exemption, then the

legal entity is also subject to cancellation of the exemption granted.

 

 

 

All financial penalties accrue to the East Timor Consolidated Budget, as

provided for under UNTAET Regulation No. 2000/1.

 

 

 

Review of Administrative Decisions

 

The Regulation provides for administrative review of decisions made

under the Regulation. A person or legal entity against whom a decision

has been made may apply in writing to the Deputy Transitional

Administrator for a review of that decision within 30 days of the

decision.

 

 

 

The Deputy Transitional Administrator was required, 30 days of the date

of an application to either uphold or overturn the original decision,

and to give written notification of the reasons for the decision to the

person or legal entity.

 

It also provides that, pending the establishment of adequate judicial

procedures for administrative matters, a person or legal entity may

challenge a decision of the Deputy Transitional Administrator to

 

uphold the original decision adverse to their interests with the

competent judicial authorities in East Timor which are obliged to apply

the same substantive norms as would be applicable under the procedures

for administrative matters.

 

 

 

The legal and illegal trade in sandalwood continues in East Timor to the

present day. During the UNTAET period, it was still possible to buy

statuettes of Jesus and Mary and fans carved from sandalwood. At the

date of writing, such statuettes continue to be sold clandestinely on

the streets of Dili. Vials of sandalwood oil may be purchased in the

departure lounge at the Nicolau Lobato airport in Dili and fans said to

be made from East Timorese sandalwood may be purchased from retailers in

Dili. Twentytonnes of sandalwood were reported to have been seized on 20

August 2002. In September 2002 in Dili, East Timorese police apprehended

7 lorries loaded with sandalwood which were believed to have originated

from the District of Baucau. The timber was confiscated and handed over

to the Ministry of Forestry and Agriculture. It was believed that the

sandalwood was to be sold in n Indonesian West Timor and that more

sandalwood was stockpiled in Baucau. On 27 February 2004, East Timor

customs officials seized 3 tons of sandalwood timber from a container in

Dili.

 

 

 

Stocks of sandalwood which had been logged during the Indonesian

occupation remained and their value proved irresistible so, pursuant to

section 3 of Regulation No 2000/17, provision was made for exemptions

from the prohibition on the export of sandalwood.

 

 

 

UNTAET Directive No. 2002/3 on Certain Exemptions to Regulation 2000/17

(of 8 June 2000) on the Prohibition of the Export of Wood from East

Timor

 

 

 

Purpose of the Directive

 

This Directive came into force on 20 March 2002 . It implements the

exemption provisions contained in Section 3 of UNTAET Regulation No

2000/17. The preamble notes that the purpose of the Directive is to

provide " a system for exempting from the application of UNTAET

Regulation No. 2000/17, in a manner that protects the public interest of

East Timor, the export of sandalwood logged prior to 8 June 2000, and

for the realization of revenues therefrom " .

 

 

 

Under section 1 of this Directive, the Ministry of Agriculture and

Fisheries of the East Timor Public Administration is empowered to grant

an exemption to the application of UNTAET Regulation No. 2000/17 for the

export of sandalwood that was logged prior to 8 June 2000. Applications

for an exemption had to be lodged by 19 May 2002 but the Minister for

Agriculture and Fisheries was also granted power to extend, at any time

prior to 19 May 2002, the period within which applications for an

exemption could be made by 30 days.

 

 

 

The Directive contains provisions for determining the age and value of

sandalwood for the purposes of the exemption. But these provisions

confer a wide discretion on the Director of Forestry to determine the

date upon which sandalwood the subject of an application for an

exemption. Section 3.1 provides that " [t]he Director of Forestry shall

determine the date on which the sandalwood subject to

 

any Export Exemption Application was logged utilizing the most

appropriate forestry industry

 

methods practicable within East Timor as the same shall be prescribed by

the Ministry of Agriculture in administrative instructions issued

pursuant to the present Directive and updated from time-to-time. "

 

 

 

If the Director of Forestry determines, in accordance with the

application of the methods described pursuant to Section 3.1 that the

sandalwood was logged prior to 8 June 2000, the Director of Forestry

" shall determine the market value of such sandalwood in the

international market utilizing the most

 

appropriate methods for determining such value as the same shall be

prescribed by the Ministry of Agriculture in administrative instructions

issued pursuant to the present Directive and updated from time-to-time " .

 

 

 

If the Director of Forestry determines that the sandalwood was logged on

or after 8 June 2000, the application for the export of such sandalwood

" shall be rejected and all such sandalwood seized by the Ministry of

Agriculture and forfeit to the Public Administration. "

 

 

 

Seizure Provisions

 

If the sandalwood is seized, the Ministry of Agriculture must give

notice in writing to the person from whom the sandalwood was seized

stating the reasons for the seizure and providing an inventory of the

seized sandalwood and the sandalwood must be stored in a warehouse or

other repository designated by the Ministry of Agriculture. Samples may

be taken for examination or analysis or in the conduct of judicial

proceedings.

 

 

 

The seizure of sandalwood is an addition procedure for the

implementation of the prohibition on logging and export and does not

preclude, substitute for or intervene with respect to, the prosecution

of any criminal proceeding or the imposition of any criminal sanctions

appertaining to the cutting, removal, logging, ownership or possession

of the sandalwood seized.

 

 

 

Review Procedures

 

The Directive provides for the review of the Director of Forestry's

decisions under Section 3 on the date of logging of the sandalwood in

question or the value of such sandalwood. An initiation of a review of

those decisions have to be made within 7 days of the Director's

decision.

 

 

 

The initial review of the Director's decisions lies with the Minister

for Agriculture. An applicant may submit to the Minister

" any.documentary evidence, data, statements and such other information

as may be relevant to (i) a date of the logging of the sandalwood, or

(ii) a value of the sandalwood, different from that determined by the of Forestry. The Minister must deliver his decision on the

application for review in writing to the person making such submission

within seven calendar days of the date of the submission, which

decision, together with all documentary evidence, data, statements and

such other information provided by the person making the submission,

shall constitute, and shall be retained as, the official record of the

consideration of the submission.

 

 

 

Further review of the administrative decision-making process may be

made, within a further 7 days to the Dili District Court.

 

 

 

In the review process, the burden of establishing (i) a date of the

logging of the sandalwood, or (ii) a value of the sandalwood, different

from that determined by the Director of Forestry in the application of

the determination procedures set forth in Section 3 of the present

Directive shall at all times be upon the person seeking the review, and

the Public Administration shall in no event be liable for any claim,

suit, demand or liability of any kind, including costs or expenses,

arising out of or in any way associated with the seizure of, or the

delay in export of, sandalwood.

 

 

 

Export Exemption Fee

 

If an exemption is granted or the decisions of the Director of Forestry

or the Minister to reject an application for an exemption are overturned

by the Court so that the sandalwood in question may be exported, then a

fee for the export exemption, equal to thirty (30) per cent of the value

of the

 

sandalwood is be payable by the applicant for the Export Exemption

Application and a certificate of exemption issued by the Director of

Forestry, on behalf of the Ministry of Agriculture, authorizing the

 

export of the sandalwood subject to the Export Exemption Application.

 

 

 

References

 

Groeneveldt, W. P. Historical Notes on Indonesia and Malaya Compiled

from Chinese Sources, Jakarta, Bhatara, 1960 (first published in

Verhandelingen Van het Genootschap Van Kunsten en Wetenschappen,

Batavia, 1839) cited at page 2 in Taylor, John G. Perang Tersembunyi

Sejarah Timor Timur Yang Dilupakan, Forum Solidaritas Untuk Rakyat Timor

Timur 1998 being a translation of Indonesia's Forgotten War: The Hidden

History of East Timor, 1999 Zed Books.

 

 

 

Aditjondro, George J. Menyongsong Matahari Terbit di Puncak Ramelau -

Dampak Pendudukan Timor Lorosa'e dan Munculnya Gerakan Pro-Timor

Lorosa'e di Indonesia, Jakarta, 2000, Yayasan Hak and Forum Solidaritas

Untuk Rakyat Timor Timur pp. 46-50.

 

 

 

Timor Post 01 March 2004 " Customs Sieze 3 Tons of Sandalwood " , pages 1,

15.

 

 

 

ETAN East Timor Press Review 20 August 2002

 

 

 

ABC News Online September 2002

 

 

 

© Warren L. Wright

 

Dili, 30 March 2004