Medaing v. Ramu Nico Management (MCC) Ltd

[2011] PGNC 95; N4340
Download Judgment: English
Region: Oceania
Year: 2011
Court: National Court of Justice, Papua New Guinea
Health Topics: Water, sanitation and hygiene
Human Rights: Right to a clean environment
Tags: Environmental health, Right to water and sanitation, sanitation and hygiene

The plaintiffs, who had an interest in the land and sea areas affected by the Ramu Nickel Project (the Project) constructed by Ramu Nicko Management (MCC) Ltd (RNM), sought a permanent injunction to restrain RNM from operating a deep-sea tailings placement (DSTP) system. In the alternative, the plaintiffs sought a declaration that they must be consulted in the future about tailings disposal issues. The Project consisted of a nickel/cobalt mine (open pits), a 135km slurry pipeline, a refinery and wharf facility and the DSTP system. The DSTP system was to pump tailings (waste product of the mining) into the sea at Basamuk Bay: 400m off-shore at a depth of 150m and at a rate of 5 million tonnes per year for the life of the Project (estimated to be 20 years). The plaintiffs’ contended that the tailings would contain chemicals or poisons and would adversely affect fish stocks and other marine resources and also pollute their fishing grounds and villages.

The mine, pipeline, refinery and wharf were constructed from 2008 to 2010. Construction of the DSTP was due to commence in early 2010, but was restrained by an interim injunction in March 2010. In October 2010, the Court granted another interim injunction on the operation only of the DSTP (but not on its construction). The DSTP was constructed in November-December 2010, but it could not operate due to the interim injunction and the need for approval by the Director of Environmental of an Operational Environment Management Plan (OEMP).

The plaintiffs’ claim for relief was based on 3 causes of action as below (with the Court’s decision on each in square brackets):
1.The common law tort of nuisance – unlawful interference in the enjoyment of their land and sea [ACCEPTED];
2.Breach of the Environment Act 2000 – serious environmental harm (which is not authorized by the statutory approvals granted by the Director to MCCC) [DISMISSED]; and
3.Breach of National Goal No. 4 (natural resources and environment) of the Constitution which is for Papua New Guinea’s natural resources and environment to be conserved and used for the collective benefit of us all, and be replenished for the benefit of future generations [ACCEPTED].

At the centre of all the causes of action above was the contention that operation of the DSTP would have serious and adverse effects on the marine environment and[the plaintiffs’] own land, environment, livelihood and quality of life.

The Court held:
Operation of the DSTP would not be unlawful under the Environment Act 2000 as it was an activity permitted under approval and under conditions attached to permits granted under the 2000 act
The plaintiffs had established a cause of action in private and public nuisance as:
- The Environment Act 2000 did not exclude common law actions for nuisance oRNM’s conduct would interfere with the use and enjoyment of the plaintiffs’ land and each of the plaintiffs demonstrated they were from coastal areas and have a genuine concern for the environmental effects of the DSTP; and
- RNM’s conduct was unlawful as the DSTP would cause tailings to move outside the tailings footprint zone prescribed by the environment permit.

The plaintiffs established that approval for and operation of the DSTP were actions contrary to National Goal No. 4 of the Constitution as:
- The National Goals are justiciable (i.e. able to be decided upon by the courts) in certain circumstances; and oApproval of the DSTP has and will be contrary to National Goal No 4 as it would amount to an abuse and depletion of Papua New Guinea’s natural resources and environment for the collective benefit of the People of Papua New Guinea and for the benefit of future generations.

The Court did not grant the permanent injunction as sought, as the factors favouring an injunction (standing, likelihood and extent of environmental harm, National Goal No 4) were outweighed by the opposing factors (delay by plaintiffs, lawfulness of DSTP, economic consequences).

However, this was a borderline case and had the application been made earlier the court may well have granted the permanent injunction. Instead of a permanent injunction, the Court ordered that the plaintiffs must be consulted and kept informed on a quarterly basis on tailings and waste disposal issues concerning the mine, for the life of the mine.

"It is very likely that the tailings will be toxic to marine organisms. The sea-waters in the Madang area are home to some of the most diverse coral reef communities in the world, and depositing 14,000 tonnes of tailings per day into a part of Astrolabe Bay will have an adverse impact on the ecology of the Bay."

"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."

"I therefore feel obliged to state that my considered opinion as a Judge, having heard heard extensive evidence on the likely environmental effect of the that approval of the DSTP and its oberation has been and will be contrary to National Goal No 4."

"It amounts to an abuse and depletion of Papua New Guinea͛s 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..."

"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.”