BY MARTYN NAMORONG
HIS HONOUR Mr Justice David Cannings, has handed down his decision regarding a permanent injunction to prevent a Deep Sea Tailings Program (DSTP) in the Bismarck Sea.
But, while holding that the project would cause “serious environmental harm”, he has declined to grant a permanent injunction.
Justice Cannings reasoned that there had been some delay by the plaintiffs in commencing proceedings and that Ramu Nico had been led to believe by the State that it had approval to operate a DSTP without the prospect of disruptions.
He also said the interests of the company and livelihoods of people who depend on the mine would be adversely affected and that the defendants were making genuine efforts to put in place effective monitoring protocols.
“Despite the plaintiffs having established a cause of action in private and public nuisance and that the proposed activity is contrary to National Goal No 4,” Justice Canning said, “the court declined to grant the injunction sought”
In other words, the judge recognised that the grievances brought to the court by the plaintiffs were genuine and that much of the evidence presented by the plaintiffs’ lawyer was satisfactory; and he concurred with the plaintiffs arguments that the DSTP would cause “serious environmental harm.”
There was a sombre tone in the Madang court house and as people emerged after the decision was handed down.
A few landowners from the mine site were visibly relieved along with representatives from the developer MCC. The plaintiffs were distraught and made their way out quickly. No one was available for immediate comment and reaction.
Yes Paul - You are correct in your highlights.
His Honour went further, finding (direct quote from court documents):
"The National Goals and Directive Principles are in the Preamble to the Constitution. They underlie the Constitution. They are the proclaimed aims of the People. Core values.
"All persons and bodies are directed by the Constitution to be guided by them and the Directive Principles in pursuing and achieving the aims of the People. They cannot be ignored.
"I therefore feel obliged to state that my considered opinion as a Judge, having heard extensive evidence on the likely environmental effect of the DSTP and made findings of fact on that subject, is that the approval of the DSTP and its operation has been and will be contrary to National Goal No 4.
"It amounts to an abuse and depletion of Papua New Guinea’s natural resources and environment – not their conservation – for the collective benefit of the People of Papua New Guinea and for the benefit of future generations, to discharge into a near-pristine sea (a widely recognised hotspot of biodiversity), mine tailings at a rate of 5 million tonnes of solids and 58.9 million cubic metres of tailings liquor per year.
"It constitutes unwise use of our natural resources and environment, particularly in and on the seabed and in the sea.
"It amounts to a breach of our duty of trust for future generations for this to happen. It is a course of action that shows deafness to the call of the People through Directive Principle 4(2) to conserve and replenish our sacred and scenic marine environment in Astrolabe Bay.
"It puts other coastal waters of Madang Province at risk. Inadequate protection has been given to our valued fish and other marine organisms."
Posted by: Alex Harris | 29 July 2011 at 03:31 PM
Martyn - In simple terms, have I got this right?
Justice Canning agreed there would be 'serious environmental damage' caused by allowing the mine to operate.
But as the mining company had been led by the PNG government to believe there would be no disruptions to the DSTP operations, he was not inclined to grant a permanent injunction.
Surely that outcome effectively highlights the following:
1. Minister Maladina's statement to Parliament that only a few worms at the bottom of the sea would be affected.
2. The PNG government has enacted legislation that is now recognized by the Judiciary as contrary to the best interests of its citizens.
3. The CEO of the PNG Department of Environment is clearly not suitably qualified or properly informed to make decisions on such matters.
If that is so, doesn't that open the way for a new legal challenge on the basis that adverse environmental damages will occur by the operation of this mine as recognized by a PNG court?
It will be interesting to see what the plaintiff's lawyer will make of this? Thank heavens for the separation of powers as defined in PNG's Constitution.
Posted by: Paul Oates | 26 July 2011 at 08:15 PM