Information on THPA
Transboundary Haze Pollution Act
The following is a summary of the legal memo written by ghost writers for a lay reader.
This post explains possible legal avenues identified in a legal memorandum and is intended for general public information. It is not legal advice. Anyone contemplating proceedings should obtain advice from a Singapore lawyer on the particular facts of the case.
Can You Sue the Plantation Company Behind the Haze?
When haze returns to Singapore, we usually ask what the Singapore Government or the Indonesian Government can do about it. There is another question worth asking:
If a plantation company or estate causes fires that send haze into Singapore, can an ordinary person or business in Singapore sue that company for the damage caused?
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The answer is: potentially, yes.
Singapore enacted the Transboundary Haze Pollution Act 2014 (THPA) precisely because the people and businesses suffering the consequences of haze are in Singapore, while the fires and those responsible for them may be outside Singapore.
The law is unusual because it attempts to impose liability in Singapore for conduct taking place overseas.
But having a law and winning a lawsuit are two different things.
A potential claimant has to think about four separate questions:
1. Have I suffered a type of loss that the law recognises?
Under section 6 of the THPA, a person in Singapore may potentially bring a civil claim if haze pollution causes:
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• physical injury, disease or death;
• damage to property; or
• economic loss, including loss of profits.
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Importantly, “person” can include a company or business.
Of these three categories, economic loss may offer the most practical basis for a lawsuit.
Imagine, for example, that severe haze forces the cancellation of an outdoor event. The organiser may already have paid for equipment, staff, permits, venues, security, tents, transport and other services. It might have to refund customers. Sponsors might withdraw. Ticket revenue might be lost.
These are real financial losses.
The legal memorandum uses events such as the Singapore Marathon and the Formula 1 Singapore Grand Prix to illustrate how such claims might arise.
The same principle could potentially apply much more widely.
A restaurant with a large outdoor operation might lose substantial business. A tourist attraction might suffer cancellations. An outdoor sports operator might have to suspend operations. A company might cancel an event after incurring substantial expenditure. A farm might suffer damage to its crops.​​​
The important point is this:
​It is not enough to say, “The haze was terrible.” You must be able to show what the haze actually cost you.
That means keeping records.
If you think you may have suffered a significant loss because of haze, preserve evidence such as receipts, cancelled bookings, correspondence with customers, contracts, refunds, invoices, photographs, attendance figures, sales records and accounts showing the difference between normal revenue and revenue during the haze episode.
2. What if the haze made me sick?
The THPA also allows claims involving physical injury or disease. But these cases may be harder. The legal problem is causation. That is, it has to be shown that the haze contributed to the illness.
Suppose someone suffers a serious asthma attack during a period of severe haze. It is not enough merely to show that the person had asthma and that Singapore was experiencing haze at the same time. This person would need medical evidence connecting the particular illness or deterioration in health to the haze.
This may be especially difficult because haze sometimes aggravates an existing medical condition rather than creating an entirely new disease.
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The stronger case would therefore be one where there is clear medical documentation showing:​
haze exposure → identifiable deterioration in health → measurable injury or expense.​
Medical records created at the time would obviously be important.
3. How could an ordinary person possibly prove that smoke in Singapore came from one particular plantation in Indonesia?
This is perhaps the most interesting feature of the THPA.
Ordinarily, this would be extraordinarily difficult. Imagine having to prove in a Singapore courtroom that a particular fire hundreds of kilometres away produced the smoke that eventually reached Singapore. The law therefore contains a series of presumptions.
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A presumption means that once certain facts have been established, the law may require the defendant to disprove the connection rather than requiring the claimant to prove every link from scratch.
For example, if there is haze pollution in Singapore, and at about the same time there is a fire on land outside Singapore, and satellite and meteorological information indicates that smoke from that fire is travelling towards Singapore, the law can presume that the fire contributed to the haze here.
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That is extremely important.
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It means the claimant does not necessarily have to trace individual particles of smoke from a particular burning plantation all the way to Singapore. Satellite imagery, wind direction, meteorological information and evidence of fires can become central evidence.
There are also presumptions dealing with who owns or occupies the land.
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If recognised maps identify particular land as being owned or occupied by an entity, the law can place the burden on that entity to rebut the evidence.
The THPA also addresses another common problem: companies saying that somebody else actually started the fire.
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Plantation operations can involve subsidiaries, contractors, subcontractors, local operators and villagers. Establishing exactly who ordered or permitted burning can therefore be extremely difficult for somebody sitting in Singapore. The statutory presumptions are intended to overcome some of these evidential obstacles.
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This does not mean that every plantation company associated with land on which a fire occurs will automatically be liable.
It means that once the claimant establishes particular facts, the evidential burden can become much more difficult for the defendant to escape.
4. There is still a major problem: winning the case is not the same as collecting the money.
Suppose you sue an Indonesian plantation company in Singapore. Suppose the company does not defend the action. Suppose you obtain a Singapore judgment awarding you damages.
You have still not necessarily received a cent. You have to enforce the judgment.
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If the company has assets in Singapore, enforcement becomes considerably more meaningful because there may be assets against which a Singapore court order can operate.
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But if the plantation company has no assets or presence in Singapore, you would then want to enforce the Singapore judgment in Indonesia.
And this is where things become much more difficult. Singapore court judgments are generally not directly enforceable in Indonesia. Indonesia and Singapore do not have a general reciprocal arrangement under which a Singapore civil judgment of this kind would simply be recognised and enforced by an Indonesian court.
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One possible alternative would be to start a fresh civil action in Indonesia and use the Singapore judgment as evidence. But that means another lawsuit, under Indonesian law, with the expense and complexity that entails.
So anyone seriously contemplating a THPA lawsuit should investigate an important practical question very early:
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Does the company I want to sue have assets or a meaningful corporate presence in Singapore?
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A legal victory against a company from which nothing can ultimately be recovered may be a very expensive symbolic victory
So what should someone who has suffered substantial haze-related losses actually do?
Do not wait until years later to reconstruct what happened. Preserve the evidence while the haze episode is taking place. That could include:
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• keeping detailed records of financial losses and additional expenditure;
• retaining contracts, invoices, receipts, refunds and cancellation notices;
• recording the dates and times when losses occurred;
• preserving photographs and video showing haze conditions;
• retaining relevant official PSI and PM2.5 information;
• preserving medical records where illness is involved;
• identifying news reports, satellite information or official statements identifying major fires;
• recording any information identifying the plantation, concession or company associated with the suspected fire; and
• obtaining legal advice early if the amount involved is substantial.
One claimant suffering a few hundred dollars of loss may understandably find litigation impractical.
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But the position could look very different for a business that loses hundreds of thousands of dollars because an event has to be cancelled, a tourist operation has to close, crops are damaged, or commercial activity is seriously disrupted.
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There may also eventually be questions about whether claims involving many people suffering similar losses could be organised collectively. That would require separate legal advice.
What about suing Indonesia itself?
That is a very different matter.
International law recognises that states have obligations concerning significant environmental harm crossing national borders. The principle is broadly that a state should exercise due diligence to prevent activities within its jurisdiction from causing significant environmental harm to another state.
There are also international obligations to cooperate, assess environmental risks and take preventive measures.
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But these rules generally operate at the level of state responsibility. They do not give an ordinary Singapore resident a simple mechanism for going to court and suing the Indonesian Government.
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Similarly, the ASEAN Agreement on Transboundary Haze Pollution imposes obligations on ASEAN states to cooperate in preventing and controlling haze, but it does not create a civil procedure through which an ordinary private individual can sue Indonesia or an Indonesian plantation company.
For most individuals and businesses in Singapore, therefore, the potentially important piece of legislation is the Transboundary Haze Pollution Act.
There is an important qualification to all of this.
The THPA remains largely untested as a vehicle for private compensation.
There is a difference between showing that a claim is legally arguable and demonstrating that it will succeed in court. Questions of causation, jurisdiction, evidence, corporate responsibility and enforcement could become extremely complicated.
But that does not make the Act meaningless.
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The more important point may be that Singapore law has already created a mechanism under which those who profit from activities associated with transboundary haze can potentially be required to answer for the losses caused here.
For many years, people affected by haze have tended to think of themselves simply as victims of something happening hundreds of kilometres away over which they have no control.
The THPA suggests another possibility:
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If you can identify the responsible company, connect its fires to the haze reaching Singapore, prove the loss you suffered and find assets against which a judgment can be enforced, you may have a civil claim.
That possibility deserves to be better understood.
​​This post explains possible legal avenues identified in a legal memorandum and is intended for general public information. It is not legal advice. Anyone contemplating proceedings should obtain advice from a Singapore lawyer on the particular facts of the case.
You can download a summary of legal research here: