Plaintiff’s make their case for a permanent injunction

The Plaintiff landowners in the Ramu mine waste dumping case in Papua New Guinea have presented in court a summary of their case for a permanent injunction to restrain the mine from dumping 100 million tons of waste into their seas.

The plaintiffs say:

1               In or around January 1999 Ramu Nickel Ltd (a subsidiary of Highlands Pacific Ltd) lodged an application for a Special Mining lease for the Ramu Nickel project and lodged the Ramu Nickel Environmental Plan 1999 on 12 February 1999 for this project with the Department of Environment and Conservation.  The Environmental Plan was done by a consultant group called NSR Environmental Consultants Ltd.

2               The Plan proposed by way of tailings management marine dumping of the mine waste at a depth of 150m, 400 m from shore.  The plan stated that these tailings would move down a gradual slope through canyons and eventually come to rest at a depth of 850m-1200m. It was estimated that the tailings would cover in excess of 150 KM2 of sea floor

3               On 21 March 2000 the Department of Environment and Conservation approved the Ramu Nickel Environmental Plan 1999 under the Environmental Planning Act (repealed), and issued the Environmental Plan Approval. The approval provided for also the approval of a deep sea tailings placement system for the disposal of mine waste in principle only.  The ultimate approval was contingent  on  conditions, one of which was:-

“the results of  further oceanographic studies to determine with greater accuracy, the base of oceanic upwelling in the vicinity of the DSTP outfall at Basamuk and a recommendation on whether the proposed depth of the DSTP outfall should be varied” (Aff Louis Medaing 24 September 2010).

4          According to the Ramu Nickel Environmental Plan 1999, the First Defendant will dump 5 million tonnes of hot tailings into Astrolabe Bay each year for the life of the mine which is estimated at 20 years, totaling 100 million tones of tailings, more if ore comes from elsewhere. The dumping will be at a depth of 150m, only 400m from shore.

5               The tailings will consist of mainly sediment and fines which will contain among other substances high levels of heavy metals including but not limited to manganese, chromium, nickel and mercury.  It will also contain levels of ammonia and sulphuric acid. The Defendant will additionally dump waste rock and soil directly into the sea at Basamuk Bay during the construction and life of the mine as well as raw sewerage from 2500 people.

6               Because of concerns as to the environmental effects of these tailings and waste disposal, in late 2000 the Evangelical Lutheran Church of Papua New Guinea commissioned the Mineral Policy Institute to undertake an independent review of aspects of the Ramu Nickel Environmental Plan 1999 as complied by Natural Research Systems (herein after referred to as “NSR”) by 3 marine scientists and an ecologist. This was motivated by concerns for the well being of the Madang Community and an underlying desire for both development and environmental protection in Madang province.

7               The fundamental findings of the reports were that NSR had compiled a well presented but false case for the discharge of mine tailings via a submarine pipe into Astrolabe Bay and that further that there can be no doubt that disturbance on the scale of a Submarine Tailings Disposal operation will have significant biological impact.

8           Despite the further oceanographic studies never being done – in November 2007 Dr wari iamo, the director of the Environment issued an environmental permit which allowed the construction and dumping of the waste as planned.

9           Due to massive community outcry as a result of this permit, in 2008, the Government of PNG commissioned a review of Deep Sea Tailings in Papua New Guinea from the Scottiish Association of Marine Science.  This report was finalized in May 2010, but was only summarized to the public in Decmeber 2011 but never officially released.

10           Both the Shearman Report and the SAMS report found that should there be upwelling, which appears likely from the prevailing onshore current at depth,it is inevitable STD material will not simply be deposited over a clearly demarcated area of the seabed. Instead some fraction will enter the ocean over a range of depths and will be transported as patches of turbid water well out of the source area. These ‘turbidity plumes’ will spread out horizontally from the descending tailings plume and are likely to be more extensive in this project than at the Misima mine where as the tailings are denser. Turbidity plumes are likely to form small scale eddies that could maintain their chemical identity (hence high concentrations of tailings) over tens if not hundreds of kilometres. These patches will be anything from tens of metres to tens of kilometres in diameter. When this occurs, the potential for ecological damage over the wider Astrolabe Bay region will greatly be increased towards the North West and upo to madang and as far as Kar Kar Island. This will clearly have significant biological impact, including on adverse impact on both shallow and deep water fish (p22, 43, 46,75 Shearman report and Page 131 Final SAMS report)

11           The situation the Plaintiffs found themselves in  was that the government was allowing the First Defendant to go ahead with its proposed deep sea tailings disposal plan despite:-

a)    There being in existence a credible and independent report compiled by 4 individual reputable marine scientists that essentially finds there will be a lot of environmental harm if the tailings dumping goes ahead and that the Environmental Plan of the First Defendant is fatally flawed,

b)    That if the tailings sea dumping goes ahead it seems almost inevitable that tailings will be deposited and carried oiver a large area as far as Kar Kar island

c)     That the oceanographic studies have never been done to determine the extent of upwelling

d)    Objection by the National Fisheries Authority to the dumping as it will endanger fish resources

e)    Well known findings by the World Bank Extractive Industry Report in 2003 that “Submarine Tailings Disposal should not be used until balanced and unbiased research, accountable to balanced stakeholder management, demonstrates its safety.  Whatever the outcome of the research, STD and riverine tailings disposal should not be used in areas such as coral reefs that have important ecological functions or cultural significance or in coastal waters used for subsistence purposes.”(annex “LS25A” aff Louis Medaing)

f)     The Government having now received BUT not made available for public consultation the report it commissioned in response to community concerns on deep sea tailings disposal

g)    PNG being a party to the Coral Triangle Initiative which mandates strict limitations on sedimentation from off shore development escaping into coral seas

h)    The land disputes not being finalized and no proper consultation with landholders or disputing claimants, effectively depriving them of proper consultation and negotiations over their land, and

i)     There being in existence alternative means of tailings disposal that would not pose such an ecological risk.

12           The Plaintiffs therefore commenced these proceedings seeking injunctions and declaratory Orders. The main thrust of this action is a case by way of nuisance against the miner seeking a permanent injunction to prevent destruction of the Plaintiffs’ marine environment.

13           Both the miner and the government have failed to conduct the proper studies to ascertain whether or not this marine tailings dumping will have an environmental impact. The miner has sought advice from undergraduate degree geologists to ascertain the environmental impact of the dumping – rather than expert marine scientists.  The miner has been aware for 11 years of the need for further oceranographic studies but has simply failed to conduct them

14           The government has also been aware for 11 years of the potential disasterous effects of the dumping but to date has failed to carry out the necessary investigations. They have not conducted the necessary oceanographic studies and have NEVER produced an impact statement of the deep sea and the food chain as a result of the tailings potentially resting at depth and smothering everything in their toxic path.

15           The plaintiffs will present

(a)  Testimony by numerous landowners of the coastal areas of Madang Province as to their usage of the sea and their customary riparian rights, and their concerns as to the impacts of the marine dumping

(b)  Expert testimony from 6 doctoral scientists as to the likely and probable effects of the marine dumping of this mine waste, which is significant and permanent adverse biological impact, including but not limited to

  1. An Oceanographer
  2. A Marine geochemist
  3. A Marine Ecotoxicologist
  4. An Environmental Engineer
  5. An ecologist
  6. A Ichthyologist

(c) Government and [private reports as to the potential;l adverse effects of the dumping

(d) Evidence to show that there will be in any event no real and lasting benefit to the people of Papua New Guinea from the Ramu Nickel mine – and certainly no benefit warranting the destruction  of such a valuable environment.

(e) Evidence to show that the government in Paua new Guinea has failed to comply with its obligations under the Constitution and the Environmental Impact to allow only sustainable development of resources in the interests of future generations.

16.      The dumping of mine waste into Astrolabe bay will cause massive adverse Environmental impact and the Plaintiffs will prove to this Court that the only option open is to permanently injunct this devastating nuisance.

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Filed under Environmental impact, Human rights, Papua New Guinea

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