By Nou Vada*
I met up with one of the lawyers who was involved in the case. He was family and it was Christmas Eve. I smiled. “Congratulations on the win, bro!”. He smiled back. He probably knew it took a lot out of me to say that, and that there was a hint of insincerity in my voice. The decision had left me gutted. I’ve been in Papua New Guinea’s development circles since I was 14 and though I’m not as naive as I used to be about issues affecting development in PNG, I still wear my heart on my sleeve when it comes to grave social and environmental issues affecting my nation.
The Supreme Court of Papua New Guinea had decided 2-1 that it was quite alright for Chinese state owned Ramu NiCo Mine to dump mine waste in the sea of Madang, boasted the world over as Papua New Guinea’s most beautiful Province. I went to Madang this year, and I spent a month with Papua New Guineans (and non-Papua New Guineans) in the frontline of a war against humanity; a war waged by greed and convinience and the dehumanization of a People who are as old as the ancient sea that binds them. This is the sea where the Chinese will dump Millions of tonnes of Mining waste a year.
The Chinese will do this because it is convenient and it is cheap. They will do this because it is economical.
The Government of Papua New Guinea will allow this because if it does not, the Chinese will sue Papua New Guinea for breach of contract.
This lay heavy on Justice Canning’s mind when he handed down the first Medaing vs MCC decision at the National Court in Madang. The decision was a public policy decision. Cannings J had found that there was a cause in the tort of Nuisance for Louise Medaing anf the 1083 other plaintiffs. But Cannings ruled that to give effect to a permanent injunction preventing the operation of the dumping system would affect Chinese and Papua New Guinean economic interests, and therefore he permitted the Chinese to dump mining waste into Paradise.
The Supreme Court found that there was no Nuisance; the apprehension of nuisance is not nuisance.
In the Supreme Court per Hartshorne J and Sawong J:
“ln the grounds of cross appeal, the cross apellants contend that the trial Judge erred in making declaratory orders that causes of action in private and public nuisance had been established when the cross-respondents’ complaints concerned causes of action that might or might not arise in the future. lt was not alleged by the cross respondents that there had been any discharge of tailings or mine waste through the DSTP.
The cross-respondents submit that a private nuisance is an unreasomble interference with the use and enjoyment of land, as is a public nuisance and in addition, a public nuisance is widespread l and affects much of the community.”
Both Justices ruled that Cannings J had erred in law; that there was no nuisance. I put the learned Justices reasoning as follows:
If you light a match and touch with your fingertip the lit match you will be burnt. No hypotheses allowed. You can’t theorize being burnt. You must be burnt. That is the only way the law will recognize that fingertips on fire is not a good idea.
The Supreme Court ruled that nuisance could have only been actionable if actual dumping was taking place.
And with that the case was lost.
“It’s a development in the law of nuisance, bro”… the lawyer told me. I smiled a bit. I had to. It was true. Papua New Guinea’s own law of nuisance was undeveloped. There is no doubt Medaing v MCC will be studied by Law of Torts students in UPNG under the topic of Nuisance. It is perhaps the biggest Nuisance case in our jurisdiction.
After a while the smiling faded. Legal Scholarship aside, there was nothing exciting about the ruling. I read Martyn Namorong’s hear-felt letter to the future generations of children in Basamuk and the wider Raikos and I felt my spirit break. The letter to me back to an encounter with one of the plaintiffs alongside Louise Medaing – a man named Terry. I met Terry on the last day of my trip to Madang. I shook his hand and he thanked me for supporting his cause. I looked in Terry’s eyes and his face; I saw a story no amount of ambiguity in his words could disguise. This was a man – an old man – who was fighting a tough battle, and I knew that he knew that failure was not an option for him.
I remember later that night after the encounter I wrote a poem about Terry. Rivo was being whipped with hard rain and a grand Electrical Storm, and the weather, somehow, found its way into the poetry. I have since lost the poem but as I remember it now, the poem was about a man preparing to spill blood to keep heaven on Earth. The poem was not about Terry but in some way it was indeed about the old man from Basamuk.
After the Supreme Court’s session, I set out to track a copy of the judgement. I found it at the Mine Watch blog and read it into the early hours of the morning. The next day I woke up feeling a way I vowed I would never feel again. I felt defeated and disillusioned. The newspapers presented the story on a positive note. I passed on the paper to village boys who were trying to roll sticks of tobacco with it.
It feels like Genocide – State-sanctioned Genocide! The communities of Basamuk depend on the seas for their livelihood. They have been since time immemorial. The sea carries in it the hopes and fears of the People of Basamuk. If you kill the sea, you kill a way of life; you take away the dignity of a proud people – people like Terry and Louise.
The State won the case, but the State actually lost. The State of Papua New Guinea failed its People.
A friend in a radical NGO told me they were preparing amendments to the Environment Act to help the people of Basamuk. It’s December 2011. Tis the season to be jolly they say. Tis the season to over-ride the Supreme Court. The O’Neill/Namah Administration has demonstrated this talent by amending the Prime Minister and NEC Act 2002, and by doing so, effectively becoming the legitimate Government of Papua New Guinea just moments before the Supreme Court handed down its decision against legitimacy of the O’Neill Administration.
* You can follow Nou on his Edebamona Blog