PNG landowners shocked by court decision on mine waste

The Ramu landowners in PNG are shocked by Judge David Canning’s decision after acknowledging the risk of irreversible harm to marine resources, says ABC Radio.

The landowners say they are going to appeal against the court decision.

This is in the case of the National Court judge rejecting the application for permanent injunction against deep sea waste disposal by the Chinese-owned Ramu Nickel mine, near Madang town.

Their lawyer, Tiffany Nonggor spoke Pacific Beat shortly after the decision was handed down today.

Presenter: Caroline Tiriman
Speaker: Tiffany Nonggor, lawyer for the Ramu landowners in PNG

NONGGOR: Justice Cannings found that the landowners had made out their case, had proved their case for private nuisance and public nuisance, which means that they proved to the court that the environmental consequences of the dumping would be catastrophic, causing irreparable damage to the ecology of the bay, and in the Judge’s words seriously harming the lives and future of the plaintiffs and thousands of other coastal people in Madang province. But the judge although he found that they made out their case he said that that doesn’t necessarily mean that you should get an injunction. So he looked at factors which determined whether an injunction should be given, and he said that three factors are way in favour of an injunction being given, one that the plaintiffs, the landowners had a genuine interest, two, that they’d actually proven that there was going to be irreparable damage, and three, that it was quite clearly contrary to the national goals and directive principles this dumping. But he said there were three factors weighing against an injunction and one was the delay, that this dumping had been permitted sort of ten years and the mine had been built in reliance on the permits. Secondly he said that the dumping was lawful because they had a permit and thirdly, he said the economic consequences of the injunction, by forcing the mining company to use another method of tailings disposal would cost the company a lot of money and would also cause a great delay in the project, which may affect the economies nationally of PNG and also Madang province. And he also said that the injunction might affect negatively investor confidence. So he said that even though there were three factors both ways, reasons why an injunction should be granted and reasons why an injunction shouldn’t be granted, he said it was a borderline case and that it was his decision that an injunction shouldn’t be granted because of the cost and the delay. So although finding that the plaintiffs had proved their case, found that he wouldn’t however give them the injunction they wanted. He did however make an order that the company and the government have to keep the plaintiffs informed at least every three months for the whole life of the mine as to what’s happening with the tailings and the waste and the reports etc., and the monitoring, and he also held that the parties have to bear their own costs. So the reasons he put forward was basically costs to the company and economic consequences for the country. One has to ask well what does that mean economic consequences for the people whose livelihoods and lives are going to be affected on the Madang coast now that it’s been proven in court that there will be damage to the people greater than what was predicted by the company. How do you quantify that?

TIRIMAN: Tiffany Nonggor and what did he have to say about the scientific evidence he heard on the expected environmental impact of this waste disposal?

NONGGOR: He said that the plaintiffs had put together, the landowners had a considerable body of evidence from expert scientists that there would be damage. The fact of the matter is, is that the plaintiffs proved their case on scientific basis with experts that there was going to be considerable environmental consequences, and the judge used the word, catastrophic, that’s also going to damage the lives of people. I mean the plaintiffs proved that the damage to the environment is going to be catastrophic, and that was on the scientific evidence. But then the judge had decided he would weight it up against the cost of the company and economic to the country. I guess there’s a belief that some people’s livelihoods can be sacrificed for the greater good.

TIRIMAN: Where does this leave the landowners and what reaction are you seeing from them or you saw from them outside the court?

NONGGOR: They’re my clients and they’re a little bit in shock because the judgement was read out over three hours and for the first two hours it was clear very much that they had succeeded in their claim, and even for like the first two-and-a-half hours it was clear that the landowners had succeeded in their case, that they’ve actually proved their interest, they proved the scientific case that it was going to be damaged. So they were quite shocked with the outcome that the court is allowing the damage to occur, which is greater than was predicted. I mean the judge actually highlighted that it appears that the director of environment has approved a very risky project to the detriment of these people. But the question is, he said the landowners have delayed bringing it to court, but it’s very difficult with regards to landowners knowing the consequences of things and it’s not really until mines get built do they realise that something is actually going on. Whereas the planning for these mines etc., goes on years beforehand. What are they going to do? They’re considering appealing the part of the judgement that refused the injunction.

TIRIMAN: Have you seen any reaction yet from the company or the Papua New Guinea government?

NONGGOR: No not yet, we’ve just got out of court.

TIRIMAN: Tiffany Nonggor just like other big mining companies which have projects on the drawing board in PNG that are planning to use deep-sea disposal, I wonder what this decision means for them?

NONGGOR: Well the judge did say that one of the major factors in not allowing the injunction was the delay, and he said that had this court application been made earlier the result may very well have been different, because it’s only that the company has expended a lot of money and completed the mine and apparently three-billion kina they’ve spent building the mine. Now if other mining companies have this tailings method of disposal on the drawing board, it points to the fact that look it’s likely that this sort of dumping will cause a lot of damage, and if the landowners complain early enough to the courts or complain properly then they can stop it. So this decision would be saying to those mining companies that have tailings dumpings into the sea on the drawing board as part of their mine, that perhaps they shouldn’t do that because there’s quite clearly valid and successful legal challenges open.