Nick Toscano | Sydney Morning Herald | November 3, 2019
A fresh legal dispute has erupted over control of a fund set up to benefit the tens of thousands of villagers affected by mining giant BHP’s environmental disaster at the Ok Tedi mine in Papua New Guinea more than 20 years ago.
The Ok Tedi mine – which BHP co-owned with the PNG government until selling its stake in 2002 – discharged tens of millions of tonnes of mine waste into the local river system during the 1980s and 1990s, contaminating fish and trees and devastating the area’s economy.
A special trust account was created by the mine owners in the late 1990s to accumulate dividends from the Ok Tedi copper and gold mine’s ongoing profits to compensate the 30,000 landowners of the worst-affected communities living downstream of the mine.
Estimated to contain 250 million kina ($106 million), the Western Province People’s Dividend Trust Fund had been managed by PNG government officials until September last year when the Ok Tedi and Fly River Development Foundation, a regional representative group, raised allegations the funds were being “misapplied … causing a diminishment” and won a legal bid to become its trustees.
The newly-formed foundation headed by local leaders claiming to represent 30,000 residents of the villages most immediately impacted by the Ok Tedi mine disaster obtained National Court orders to replace the government as trustees.
But control of the trust is again under a cloud with the PNG government, represented by prominent Australian law firm Corrs Chambers Westgarth, last month obtaining further court orders blocking the ANZ Bank from dispensing the funds.
The Ok Tedi and Fly River Development Foundation has applied to have the injunction set aside, alleging an abuse of process, including claims the PNG government is a vexatious litigant and that Corrs Chambers Westgarth had failed to obtain the necessary certification with PNG’s Investment Promotion Authority to be practising in PNG. The case will be heard in the country’s National Court in December.
A spokesman for Corrs Chambers Westgarth said the firm was “not in a position to comment” as the matter was before the court.
An ANZ spokesman said it would be inappropriate to comment as the matter was before the courts in Papua New Guinea.
BHP, Australia’s biggest mining company, completed its withdrawal from the Ok Tedi mine in 2002, transferring its 52 per cent equity stake to a development fund designed to operate for the benefit of PNG residents, known as the PNG Sustainable Development Program Limited. The fund was to use dividend payments from BHP’s transferred shareholding in Ok Tedi to finance long-term sustainable development projects in PNG, particularly the western province.
The miner also reached an out-of-court settlement with 30,000 landowners represented by Slater & Gordon in a landmark lawsuit in Victoria’s Supreme Court in 1996, which included $110 million in compensation for the affected villagers.