In many countries, there are other legal mechanisms which may be used to enforce environmental duties and obligations. Logging and forest use projects can be challenged if they are in breach of these duties. It is often easier to think of these claims not in terms of “rights”, but of “wrongs”. They are examples of a general principle which is part of many laws that where a party causes damages by harmful activity, the law will require them to stop or remediate the damage, or pay compensation. The well-known principle, “the polluter pays” is an example of this
These claims will usually be “civil claims” or “criminal claims”.
Activities which threaten forest may be a civil wrong or a criminal act or both. In some countries civil and criminal proceedings are separate. In others they are combined so that the person responsible may be required to pay a fine to the state, or compensation, or both.
There are many different areas of civil and criminal law. Each area prevents people, corporations and governments from doing certain things and provides consequences when laws are broken.
Civil and criminal laws also vary from country to country depending on whether they are “common law“ countries or “civil law” countries.
Once you have outlined the facts of your case, look at legal areas below and see which most closely relates to your situation. Remember to check your national law to see what the law is in your country. Legal advice or assistance may be needed to pursue these claims but three general question to consider are
Common examples of activities related to forests which may cause harm or damage: Burning or cutting/logging of forest land, mining or building on forest land, escape of chemicals from mining or oil production, causing smoke, haze, dust, noise.
Common examples of harm in a forest context: Loss of forest land/timber, air pollution with smoke or dust, water pollution with chemicals or oil, contamination of land, injury disease or death. Also economic losses resulting from these.
Your legal analysis must be supported by the evidence you have gathered. You should consider seeking legal advice. A lawyer should be able to provide advice on the options available to you and advise on your chances of success.
The types of evidence you may need to support your argument will be outlined later in this section.
A “tort” or “delict” is a civil (private) wrong that causes you to suffer loss, injury or harm. Laws regarding civil responsibility can be used to bring a case against a person, corporation (including foreign parent companies) and/or your government. These are a key type of civil claim.
This section covers a non-exhaustive list of the areas of tort and civil responsibility law that can be used to prevent or fight illegal deforestation. Each country has its own laws of civil and criminal wrongs.
Most countries provide for legal action where the actions of one person cause damage or injury to another person or to their property, especially where the action is unreasonable or contrary to a law. The person who has suffered the damage may be entitled to compensation or may be able to get an order to stop the harmful activity. The types of tort listed below are simply examples of different types of claim arising from different types of conduct or damage caused by it.
Once you have outlined the facts of your case, look at the areas of law below and see which closely relates to your situation. Then check your national law to see what the law is in your country. You will need to know what the things are you need to be able to prove to take legal action. Most legal systems only allow legal action where the defendant’s conduct has harmed the claimant. Other important points to consider include:
The law on torts or delicts varies from country to country and may be complicated, depending on case precedents or specific provisions of a national legal code. However, in common law countries, there are different types of legal harm or “tort” each of which have different rules.
In common law countries, negligence will be committed where the actions of a person, corporation or authority fall below the standard of care they owe you, and this causes you harm. This might be injury or damage to your health. Or it might be damage to or destruction of your property. Some system of law also allows for compensation for economic damage
To bring a claim in negligence, you do not need to show the defendant intended or wanted to cause the injury. It can be enough to prove they acted recklessly or carelessly.
To hold a defendant labile in negligence for deforestation or forest degradation, you will need to prove that:
(a) The defendant owes you a duty of care.
This means that the defendant must meet a standard of expected care towards you. This means the defendant must act with a degree of caution or care when it is taking action that’ could impact you.
When arguing that a corporation owes you a duty of care relating to deforestation, you may need to show:
(b) The defendant has breached its duty of care.
This means the defendant did not meet the expected standard of care. For example, the breach of a duty of care could be a corporation’s failure to change their logging operations despite knowing that it will cause harm to Indigenous communities living in the logging area.
You may also be able to argue that a foreign parent company has a duty of care not to allow deforestation or forest degradation.
Case Example: Vedanta v. Lungowe
This case involved the mining company, Vedanta Resources, and environmental damage caused by its subsidiary company (KCM) in Zambia. Zambian villagers brought a case in the English courts against Vedanta, claiming that mining waste had polluted waterways and caused property damage, loss of income and personal injury to the claimants.
The UK Supreme Court accepted jurisdiction held that Vedanta, as the parent company, owed a duty of care to the claimants.
(c) The defendant’s breach of duty caused the harm that your claim is based on.
The requirement for causation in negligence is similar to private nuisance (see below).
In common law countries, you may have a cause of action in private nuisance if deforestation impacts your land. A private nuisance occurs where a person or corporation unreasonably and substantially damages or interferes with the use or enjoyment of your land.
To establish private nuisance, you generally need to show:
(a) The affected land is your property
This can include land that you legally own, occupy or use.
(b) The land has been damaged or your use or enjoyment of the land has been interfered with
For deforestation, this could include:
(c) The damage or interference was caused by the actions of the defendant.
What you need to do to prove causation will change in different countries and in different types of claims.
First, you will need to outline the factual causal link or connection between the activities of the defendant and the harm you are suffering from.
Second, this factual causal link above must meet the relevant legal standard of causation.
(d) The interference is unreasonable and substantial. So for example if a mining company caused some chemicals to escape on to forest land they may not be liable if they can show that the amount of chemical was very small and within permitted limits or if it was reasonable for some chemicals to escape.
This is similar to proving a breach of duty in negligence. It can be helpful to highlight:
Public Nuisance and Government Liability for Forest Damage
Public nuisance is a common law criminal offence that involves environmental damage to the public. It is similar to private nuisance, except that there is no requirement that your individual property has been damaged. Governments or public authorities can be held liable for deforestation that unreasonably interferes with a right of the general public.
You will need to prove that you are part of a class of people that has been impacted. The impacts of deforestation that your claim is based on must affect a group of people who are connected in some way.
Like private nuisance, you also must prove that:
In some countries, you also have to prove that the injury or damage is “special” in some way (i.e. distinct from how the general public may be affected). In absence of this evidence, you will not be able to fulfil the requirement of standing unless you receive prior consent of the attorney general of the jurisdiction in which the claim is being brought. Check the law in your country to see the specific requirements on public nuisance claims.
There are similar examples of these types of claims in civil law countries. Although claims in civil law countries will not be based on common law principles, governments can be held liable for widespread environmental damage such as forest fires and other types of forest-related damage.
Case Example: Citizen Lawsuit on Forest Fires v. Indonesia
A group of citizens and environmental activists brought a lawsuit after devastating forest fires occurred across Indonesia in 2015. The Indonesian Supreme Court upheld a ruling that the government and president were liable for these forest fires and the haze that covered the country. It held that the government failed in its responsibility to mitigate forest fires and prevent them from recurring despite existing laws setting out this responsibility.
Haze litigation can also have a criminal element to it where an entity (inclusive of a government body) can be held liable for conduct that causes haze pollution damage from forest fires.
Example: Indonesia’s Transboundary Haze Pollution Act 2014
This Act sets out civil and criminal responsibility “for any entity to engage in conduct, or to condone conduct, causing or contributing to haze pollution in Singapore”.
In common law, you may have a claim in trespass if an individual, corporation or authority has intentionally entered your land without lawful permission to conduct logging activities or other activities causing deforestation.
Trespass also occurs when:
You do not need to prove you have suffered special harm to prove trespass.
Key Example: Gramgari v Crawford
A customary landowner brought an action against PNG Tropical Wood Products for ‘unlawful harvesting of timber and environmental damage on his clan’s land.’ The plaintiff was successful in recovering damages under the tort of trespass.
A tort of conversion is committed when someone interferes, without justification, with your personal property (i.e. goods that are not land). You may wish to bring a claim under this tort if a company has interfered with the trees or related products that you own or have the right to possess or use. A claim may also be brought against a foreign parent company, whose subsidiary company in your country has interfered with your personal property.
Case Example: Song Mao v Tate & Lyle Industries Ltd and Tate & Lyle Sugars Ltd
A group of Cambodian villagers sued Tate & Lyle in the United Kingdom. Tate & Lyle bought sugar emanating from land which had been converted from forest and farming land. The villagers previously living there alleged it had been illegally cleared and occupied land. They argued that they were the legal owners of the land and the sugar which had come from cane grown on it and that the Tate & Lyle had wrongly taken it when they bought it. The villagers alleged that Tate & Lyle had committed the tort of conversion. The case has not been yet resolved by a court
This tort is also applicable to supply chain claims. For more information, see Sub-Page 9.
Haze Litigation and Civil Responsibility for Forest Fires
Haze Litigation describes the civil (and criminal) litigation that can be taken for victims of haze pollution that emanates from slash and burn style forest fires for the production of forest risk commodities. It is a type of transboundary civil litigation that can be taken in the origin country rather than in international or regional courts.
Example: ASEAN Agreement on Transboundary Haze Pollution
The ASEAN Agreement is a legally binding agreement to prevent, monitor and reduce haze pollution in Southeast Asia. The objective is to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which are to be mitigated through national efforts and regional and international cooperation (Article 2).
Example: Singapore’s Transboundary Haze Pollution Act 2014
Section 6 of this Act sets out civil and criminal liability for both state and non-state actors to engage in conduct, or to condone conduct, that causes contributes to any haze pollution in Singapore.
These types of laws, as well as general laws of civil responsibility, can be used to hold companies liable for directly setting off forest fires or potentially, where they are conducting forest degrading practices that then causally lead to forest fires and pollution.
Case Example: Kallista Alam in the Indonesian Supreme Court
The Indonesian Supreme Court rejected an appeal from the palm oil developer, PT Kallista Alam. The company was ordered to pay $26 million in fines and reparations for slash and burning forest in the Tripa peat swamp region, which was damaged by rogue plantation operations.
Breach of Statutory Duty
A statutory duty arises where the statute or law or regulation imposes a civil duty to do (or not to do) something, such as to protect forest species and environment, or prevent fires. If the defendant breaches the statute, it may be liable to a fine or to be prosecuted by the authorities but may also be liable to compensate those harmed by the breach. Environmental and forestry legislation may contain duties on civil responsibility, such as a duty not to dispose of toxic waste that will cause harm to others and damage the natural environment (e.g. forest land). If this duty is not followed, a claimant may be able to retrieve damages for the breach in question.
Example: Indonesia – Number 41 1999 Stipulation to the Act on Forestry
Article 49 notes that holders of rights or licences shall be responsible for forest fires occurring in their working area.
Article 50 sets out a number of forestry offences, including the prohibition on licensed users undertaking activities leading to forest damages (50(2)) and a prohibition on the burning the forests (50(3)(d)). Any person who negligently violates the provisions of Article 50 are liable to punishment by varying levels of imprisonment and fines.
A claimant may be able to rely on breaches of laws other than specific forest laws. Many countries have general environmental protection laws, principles and regulations that can be used to protect forests or prevent illegal deforestation.
In some countries, other environmental and non-environmental laws may impose obligations on governments, public authorities and corporations that can be useful in preventing deforestation, degradation or repairing the land after forest damage has occurred. These laws can be used to challenge logging and forestry projects and hold actors accountable if they violate these obligations. Such laws will vary from country to country, so remember to check the applicable laws in your country prior to bringing a claim.
These obligations may found in:
Examples: Zambia’s Environmental Management Act 2011 and Mines and Minerals Development Act 2015
Section 4 of the Environmental Management Act gives claimants the right to take action including, to prevent, stop or discontinue any activity or omission which threatens or is likely to cause harm to human health or the environment (4(a)); and compel the person responsible for environmental degradation to restore the degraded environment (4(e). 12 core principles are to be applied in achieving the purpose of the Act, including:
- Environment is the common heritage of present and future generations;
- Precautionary Principle; and the
- Polluter Pays Principle.
Section 80 of the Mines and Minerals Development Act requires consideration of the need to protect and conserve the environment and human health when granting mining rights or mineral processing licences. Section 87 establishes strict liability for any harm or damage caused by mining operations and mineral processing, and it requires compensation to include the cost of reinstatement/rehabilitation measures where harm are damage are caused to the environment.
Focus Point: Balance of Convenience Principle
Certain courts may weigh competing interests to protect the environment from harm and the interests of the defendant. This is known as the “balance of convenience principle.”
It is highly relevant in claims that seek an injunction against environmental harm, including deforestation. This principle was considered in John Labere and Agnes Votaia v Kalena Timber Company Ltd.
Forests are not only home to people; they are extremely important habitats for a diverse number of species. It is therefore important to protect and conserve the biological diversity (“biodiversity”) of forests and protect the endangered species that live within them and rely on forest resources. As forests are complex and fragile ecosystems, deforestation directly impacts forest biodiversity and the existence of endangered species.
There are a number international and regional sources of law that can be used to hold a state responsible for their failure to protect forest biodiversity from harm. Some countries have also enacted biodiversity policies and general environmental laws that impose obligations on public authorities, corporations and even individuals to conserve or protect biodiversity.
Example: Convention on Biological Diversity (CBD)
State parties are required to cooperate with other State parties regarding areas beyond national jurisdiction, for the conservation and sustainable use of biological diversity.
Other relevant obligations on include the need to:
Establish a system of protected areas;
Develop systems for managing protected areas;
Regulate biological resources for the conservation of biodiversity; and
Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species.
See Sub-Page 3 of this Guide for more information on the CBD and how you can utilise it.
Case Example: European Commission v Poland (Poland/EU)
The European Commission launched a legal cause against Poland after the Polish government tripled logging limits in the Białowieża Forest, despite scientific warning that it would negatively impact biodiversity, endangered species and forest fire prevention. The Court of Justice of the European Union ruled that Poland broke EU environmental law. The increased logging limits were held to be illegal for a number of reasons, including the fact they endangered protected species within the Białowieża Forest ecosystem.
Another important point to consider is the impact of biodiversity offsetting schemes and whether developers are following the law on these schemes. If your country has a national policy on biodiversity offsetting, development corporations must abide by these laws. They may be held liable if they illegally cut down trees in protected areas, if they cause irreparable ecosystem damage or if they cut down more trees than the offsetting policy allows.
Key Resource: Global Inventory on Biodiversity Offset Policies (GIBOP)
GIBOP was created by the IUCN and The Biodiversity Consultancy. It contains 198 countries’ publicly available national environmental laws and legislation with regards to offsets provisions, as well as country summaries and links to relevant documents.
In addition to biodiversity laws, endangered species laws can also be used to protect forests. Forest species that are under threat may be protected by national or international endangered species laws.
Key International Law: Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)
The main aim of CITES is to ensure that international trade does not threaten the survival of a number of listed endangered species, including endangered forest species. There are several tropical timber trees that are protected from international trade under CITES.
CITES can be invoked to ensure that your country is complying with its conservation duties (i.e. preventing illegal logging of protected species) and its monitoring and enforcement obligations.
Your country may not have enacted legislation specifically protected endangered species. However, many countries’ forestry and environmental laws and institutional frameworks are designed to protect, manage and conserve endangered species.
Check the environmental laws in your country to see if threatened forest species or habitats are covered under this legislation.
Key Example: Law No. 94/01 of 20 January 1994 to lay down Forestry, Wildlife and Fishery Regulations (Cameroon)
The law, its implementing orders and decree provide a blanket layer of protection for forest land and wildlife species belonging to any natural ecosystem, as well as all animal species captured from their natural habitat. Wildlife is classified into categories based on level of protection.
For more information on habitats in need of protection, biodiversity, and the protection of animal and non-forest plant species, see the A4J Environment Module.
In some countries, it is a criminal offence to undertake illegal activity that harms the environment. In the context of deforestation, this means that illegal logging and other types of deforestation activities may be considered “environmental crimes” or “forestry crime”.
These activities will often be governed by national or international criminal law. However, many systems of law have combined civil and criminal actions for environmental harm. Remember to check the law in your country.
Examples of environmental crimes that relate to forests include:
Transnational organised crime is a key driver of environmental crimes and is often driven by money laundering.
There is international law that you can refer to if you are seeking to encourage your country to adopt more expansive legislation to combat organised crime that impacts the environment.
Key Resource: Resolution of the COP to the UN Convention against Transnational Organized Crime
The resolution on ‘Preventing and combating crimes that affect the environment falling within the scope of the United Nations Convention against Transnational Organized Crime’ established to prevent and combat transnational organised crimes that impact the environment and supply chains. State parties are called upon to make crimes that affect the environment ‘serious crimes’ in their national legislation.
State parties are urged to take measures to implement anti-money laundering frameworks and investigate the laundering of proceeds transnational organised crimes that affect the environment. It also calls upon State parties to assess and mitigate corruption risks.
For more information on money laundering and its relationship to environmental crimes, see the following section on Tax Evasion and Money Laundering on this sub-page.
Corporations are often prosecuted for environmental crime. However, in some circumstances, individuals may also be found liable for environmental crimes.
Key Resource: The Environmental Crime Crisis
UNEP and Interpol’s Rapid Response Assessment contains extensive data and insights relating to environmental crime and forest resources. It contains detailed sections on forest crime and the role of wood and illegal wildlife trade for threat finance (e.g. illegal charcoal trade)
Key Resource: EU Directive on the Protection of the Environment through Criminal Law
This Directive establishes measures relating to criminal law in order to protect the environment. It prohibits a range of activities including conduct that significantly deteriorates a habitat within a protected site and killing, destroying, possessing or taking wild fauna or flora species.
Forestry crimes are connected to the regulation of the timber supply chain and industries that use forest resources. If you would like more information on supply chain liability, see Sub-Page 9 of this guide.
For general information on environmental crime, see the A4J Environment Module.
Illegal logging operations are key causes of deforestation. These operations may be funded through criminal activity such as tax evasion/fraud, money laundering, bribery and extortion. These criminal activities generate large sums of money (e.g. billions), which end up being unregulated and untaxed.
Often, the use of “offshore” tax havens is connected to the illegal degradation of forest resources. Foreign money is transferred to and from tax havens and to companies operating in the extractive industry. These companies then engage in potentially illegal deforestation activities. The financial transactions may occur in the forms of payments, financing or loans.
Resource: The Hidden Environmental Consequences of Tax Havens
Stockholm Resilience Centre has outlined a number of key points about the impact of tax havens on the environment. It provides insights into these impacts and cites a study that provides in depth information about the relationship between deforestation and the transfers of financial capital through tax havens.
The proceeds of illegal logging activities may also be converted into assets through a process called “money laundering”.
Resource: Green Carbon, Black Trade: Illegal Logging, Tax Fraud and Laundering in the World’s Tropical Forests
This 2012 UNEP and INTERPOL report highlights how tax fraud and money laundering are fuelling illegal logging operations. It outlines data on ways in which the export and trade in illegal logs and wood products are financed and profit laundered.
Some countries and regional bodies, such as the EU, have developed bodies, laws and procedures for dealing with money laundering and corruption.
Using anti-money laundering laws to prevent illegal logging and other forest crimes can be difficult. However, it is possible to take independent legal action independently in court against a corporation or government that are corruptly involved with illegal logging or deforestation. If you know of or suspect illegal activity, such as money laundering or the financing of illegal timber or wood products, seek legal advice before bringing a case. You will need to gather evidence on the public authority’s or company’s awareness and/or involvement in the corrupt activity (e.g. taking bribes related to deforestation).
You may also consider alerting the relevant financial or regulatory bodies and forest law enforcement authorities (such as your Forestry Commission) in your country, who may be able to take legal action on your behalf. Reporting to a regulatory body can complement any independent legal action you may wish to take.
Example: Operation Carne Fria (Cold Meat)
The world’s largest beef producer, JBS, was fined after it purchased cattle from embargoed farm ranches in Brazil. The IBAMA places embargoes on farms that commit illegal deforestation and other environmental damage and are banned from economic activity. The illegally sourced cattle were laundered – where transportation documents are issued that make it look like the livestock is coming from legal, non-embargoed farms.
Remember to check the anti-money laundering legislation and criminal activity reporting laws in your country. You may also be able to report or independently bring a due diligence case against a corporation that has not followed relevant due diligence procedures that would require companies to comply with national laws relating to money laundering broadly or illegal deforestation (e.g. to conduct due diligence on companies they trade with to ensure they have not financed the forest products through money laundering and not to source illegally logged wood or from farms that are under embargo for breaking the law due to corruption). A company that does not conduct the relevant due diligence may be supporting or financing deforestation due to their supply chain relationships and breaking due diligence laws in their country.
Example: UK Due Diligence Requirements
The Environment Act places due diligence requirements on companies carrying out commercial activities in the UK (over a certain turnover/income). The Act requires companies to only source forest risk commodities in accordance with local laws and to carry out and report on supply chain due diligence for illegal deforestation in their own supply chains.
If companies do not comply with this, they will be subject to fines.
In the addition to the above options, you may also want to consider telling your country’s national crime or terrorism agency by sending a “Suspicious Activity Report”/”Suspicious Transaction Report”.
For more information on how to report to regulatory agencies or take independent legal action regarding corruption against a corporation or your government, see the A4J Corruption Module.
For more information on these types of claims and supply chain contexts, see Sub-Page 9.1 of this Guide relating to Lenders and Financiers.
This will depend on the type of claim you are bringing. Generally, in order to bring a tort/civil liability claim, claims based on statutes and legislation and other litigation, you must have “standing” (the legal right to bring a claim).
However, you may be able to bypass standing requirements if you are reporting to a regulatory agency, e.g. you are reporting corruption in a forest supply chain.
See Sub-Page 4 of this Guide for more information on standing.
Depending on what time of claim you are bringing the appropriate defendant could be:
For further information, see “Who Can I Bring Legal Action Against” in the A4J Going to Court Guide.
In civil law actions, it is the claimant (e.g. you) who has the “burden of proof”. This means the person bringing a civil claim needs to bring evidence to prove their case.
One of the first things you need to do to bring a successful claim is gather evidence that will be accepted in court. You must have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened). This is called “factual evidence” and will be used to support your claim.
The type of evidence you will need to support your claim will depend on the claim you are bringing or the report you are making.
For further information on evidence, including the scope of evidence you will need to provide, see the section on “Evidence and Information” in Sub-Page 11 of this Guide.
For general information on evidence, see the section on “How Can I Prove My Case” in the A4J Going to Court Guide.
If you are submitting a report to a regulatory authority, you will need to follow the relevant procedural steps of that authority.
When you have collected your evidence and conducted your legal analysis, you should then be able to start the court claim. If you are bringing litigation (e.g. a claim in tort or civil liability), the procedure that you must follow will depend on whether you live in a “common law country” or “civil law country”. The law in your country will outline a judicial review, constitutional petition or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. Time may start running from one of the following:
- The date the harm occurred (e.g. when a forest fire occurred);
- The date you learned about the harm; or
- The date the government made the specific policy decision or took an action that you are challenging.
In some cases, it may be possible to apply for the limitation period to be extended.
For more information, see “What Procedural Steps do I need to take” in the A4J Going to Court Guide.
If you bring a successful claim against the government in a “tort” or harmful act case, you may be entitled to one or more of the below “remedies”. The outcome of a successful case will depend on your cause of action and specific claim:
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
For more information, see our general page, “What Remedies Are Available?” in the A4J Going to Court Guide.
Winning in court is only the start of the process. Many successful court judgements are either not enforceable or are not enforced in practice.
You may be able to go back to court and ask for the judgement to be defined and enforced. See the general page on “How Can I Enforce a Court Order” in the A4J Going to Court Guide.
In addition to all the factors above, there are further practical issues you need to consider.
One set of issues relates to the resources you will need by way of general support for you, and the case, legal and expert advisers, finance, logistics (such as transport), translation and printing.
Another set of issues is on the safety and security of you, witnesses and your information.
For general guidance on these, see the relevant headings in Sub-Page 11 “Going to Court” of this Guide.