Governor plans Ok Tedi challenge

Malum Nal | The National aka The Loggers Times

WESTERN Governor Ati Wobiro has assembled a legal team to challenge interim legal orders obtained by lawyers Samson Jubi and Allen Baniyamai

Wobiro said the Ok Tedi Development Foundation, Ok Tedi Mining Ltd and the State, through Chief Secretary Sir Manasupe Zurenuoc, were putting together legal teams to challenge the interim orders.

The National Court on Friday ordered OTML to refrain from dumping mine waste and tailings in the Ok Tedi/Fly River systems pending the hearing of the substantive matter on Feb 12, among others.

Deputy Chief Justice Gibbs Salika ordered the government to provide details and records of how it spent the dividends it received from OTML from 2001 to 2013.

Wobiro said on Friday he had put together a team of lawyers after a meeting with Prime Minister Peter O’Neill.

“The position of my government is simple and clear,” he said.

“I will fully defend this matter to protect development funds belonging to my people.

“I have a superior legal team to defend this matter and Samson Jubi and Allen Bainyamai know I am talking from a position of strength and based on records against them to date.

“Pastor Steven Bagari and his co-plaintiffs have caused more harm than good to our people.

“I believe these plaintiffs have neither the support of the people nor my government.

“Together with the State team, I will engage my lawyers to defend this matter.

“I am now assuring my people to remain calm while our lawyers are studying the interim orders of the court with the view to make the relevant applications.”

Wobiro said one of the orders was that payment of funds to Community Mine Continuation Agreement (CMCA) and non-CMCA communities be frozen.

“The effect of the court decision is that the funds have now been frozen,” he said.

“In other words, the CMCAs that receive regular payments as part of the 9th Supplemental Agreement will no longer receive this money because the court has ruled that the funds are now frozen.

“Development along the river communities will now cease because the money is frozen, although you have your money in the account.”

Wobiro was disappointed two of his provincial assembly members were involved in taking the matter to court.

“The president for the Kiwai local level government council Gedi Dabu and president of Oriomo-Bituri local level government council Benjes Alusi are not the mandated people under the existing agreements,” he said.

“They have no authority to raise this matter in court.”

Wobiro said discussions and arrangements between stakeholders on new arrangements for Ok Tedi were near completion

Providing an update on Friday on the work of the Eminent Persons Group of Sir Rabbie Namaliu, Sir Puka Temu and Bart Philemon, Wobiro said: “I am confident that the Eminent Persons Group will gather views of the four main parties, namely the State, PNGSDP, Fly River provincial government and the Community Mine Continuation Agreement (CMCA) leaders, including BHP Billiton to a certain extent, to reach an outcome that is favourable to all.

“I have every confidence in the Emminent  Persons Group for a just outcome, an outcome my people have been deprived of since 2001.

“The heads of agreement will be signed, agreeing on high level principles and then we’ll go down to discussing how it’s all going to be managed at the provincial level.”

Wobiro said he had always supported the position taken by Prime Minister Peter O’Neill that PNGSDP had “lost sight” of the purpose for which it was established in 2001 and instead “became alienated” from development needs and social expectations of the people of Western.

“I could not simply stand by and watch while my people suffered in vain, hence, my unwavering support for the Prime Minister Peter O’Neill in pushing for the enactment of the Ok Tedi 10th Supplemental Agreement Act 2013,” he said.

“In fact, it was the right thing to do for the sake of my people, and history will judge my conscience.”

Federation backs landowners over Ok Tedi

Grace Auka Salmang | Post Courier

THE Resource Owners Federation of PNG has commended the legal action by landowners of the Fly River and other tributaries, saying they are well justified because they and their environment need justice which has been overdue.

Federation president Jonathan Paraia said landowners had suffered under the hands and the watch of their own State since the mine commenced.

“Successive governments have deliberately neglected their duties to protect the environment and the livelihoods of the people which were dependent upon it,” Mr Paraia said. “The State had not regulated the mining companies, not only at Ok Tedi but all mines in the country.

“The State and its human agents have in fact been complicit in destroying the Fly River system and other mines are doing the same.”

He said it had failed to protect the lives of the landowners from those mines.

“Lives and livelihoods which the State and its leaders  are duty bound to protect in accordance with the Constitution of this country, and in accordance with the will of God, to whom all and each leader has vowed an oath of loyalty.”

Mr Paraia said there was clear evidence of the State’s complicity, “any landowner in the country will swear to it before a proper and truly independent court of Law, tribunal or inquiry”.

He said not once had the State prosecuted any mining company in this country for breaches of laws, but records would show that thousands of landowners had been prosecuted by the State on the complaint of mining companies.

“There is clear evidence that the State is complicit with mining companies to suppress the constitutional rights of the landowners, with the deployment of the PNG defence force and mobile police units at mine sites.

“Prime Minister Peter O’Neill says that he is making some progress to address these matters, by taking over the OK Tedi Mine and directing the construction of a tailings dam, reviewing the Benefit Sharing Agreements and so on.

“We salute him for his bravery for taking over the mine,” Paraia said.

Mr Paraia said landowners should support him in that regard, since the PNG Sustainable Development Program was only spending a third of the profits of the mine on projects in the country and keeping the balance of the profits in bank accounts off shore, thereby starving the landowners of development and the construction of a tailings dam.

However, Mr Paraia said Prime Minister O’Neill had not tabled any legislative changes in Parliament to outlaw the primitive and irresponsible mining practices at all mines in this country, and yet amended the Mining Act to increase benefits in equity, royalties and others for landowners, their neighbours and their Provincial governments.

“It is clear that the courts and the justice system is not part of the great conspiracy and corruption in the natural resource industry that has engulfed the State of Papua New Guinea.”

Ok Tedi court order on dumping waste still to be served

ABC Radio Australia

The court order instructing the giant OK Tedi mining complex to stop dumping waste into Papua New Guinea’s Fly River system has still to be served. One of the lawyers acting for community leaders, Samson Jubi, says he’s being given the runaround.

Listen to the audio: Ok Tedi court order on dumping waste still to be served (Credit: ABC)

Meanwhile the government is pressing ahead with plans to appeal against the court’s decision.

Prime Minister Peter O’Neill insists the issue of dumping is being addressed, that plans to build a tailings dam are in train, and he’s warning landowners that their actions could be counter productive with horrendous consequences.

But for the Fly River people, Mr Jubi says the situation is already horrendous, and has been for decades.

Presenter: Richard Ewart

Speaker: Lawyer Samson Jubi, representing Fly River community leaders against mining giant OK Tedi

Plaintiff blasts O’Neill

The National aka The Loggers Times

PRINCIPAL plaintiff  Pr Steven Bagari has described Prime Minister Peter O’Neill’s response on the Ok Tedi court ruling as “totally false and misleading”.

The National Court last Friday ruled in favour of the case by Bagari and six other plaintiffs and issued orders, among others, for Ok Tedi Mining Limited (OTML) to refrain from dumping mine waste and tailings into the Ok Tedi and Fly River system pending hearing of the substantive matter next month.

“We have been fooled for 30 years and will not be fooled anymore and not by Peter O’Neill,” Bagari said in a statement yesterday.

“I want to ask why has the prime minister expropriated all our assets and funds in the PNG Sustainable Development Program takeover and placed himself as the sole authority who decides who will receive compensation and by how much and when and where.

“That is clearly the only effect of the Mining (Ok Tedi Tenth Supplemental) Act he introduced and passed in Parliament in September 2013.

“If the prime minister was honestly attending to the environmental issues why is he allowing the Ok Tedi mine to continue discharging toxic mine waste and tailings into the Ok Tedi- Fly River system after 30 years?

“He should have shut it,  then address the genuine issues such as cleaning up the Fly River and attend to the serious health ,nutritional and water contamination issues the over 100,000 people face every day.”

Papua New Guinea’s Ok Tedi copper mine operating normally

James Regan | Reuters

The Ok Tedi copper mine in Papua New Guinea was operating normally on Wednesday, amid legal attempts to shut it down over waste disposal practices, a spokeswoman for the mine said.

Papua New Guinea’s National Court on Friday ordered the operating company Ok Tedi Mining to stop discharging rock waste into a river system – effectively forcing the mine to halt operations, according to media reports, which also said the papers would be served on Tuesday.

“We still have not been served any papers ordering the operations to stop, so for us it is business as normal,” Ok Tedi Mining spokeswoman Estella Cheung said.

Government and court officials could not be reached.

Prime Minister Paul O’Neill, who has said closure of the mine would have “horrendous” economic consequences for the country, was traveling and unavailable for comment.

The mine, which has produced 4.5 million tonnes of copper in concentrate since 1987, ships the material by a pipeline and barges more than 1,000 km (600 miles) to silo vessels in the Gulf of Papua, before it is loaded on to freighters and sent for smelting in Asia and Europe.

Papua New Guinea’s government took control of the mine last year and counts on its revenue to help support the national economy, is reportedly attempting to have the court order reversed.

O’Neill in September announced Papua New Guinea would take over full ownership of the mine after hastily enacting new laws in parliament.

The laws also quashed a 12-year-old decree providing former operator BHP Billiton immunity from prosecution for environmental damage stemming from the mine in the 1990s.

Ok Tedi has accounted for as much as 10 percent of Papua New Guinea’s gross domestic product in past year, though its economic importance is diminishing as the mine’s reserves are dug out.

Annual production peaked at 212,000 tonnes in 1995. Output in 2013 was 105,523 tonnes, the lowest since 1988.

Court’s interference puts Ok Tedi’s future at stake

The National aka The Loggers Times

THE eminent persons’ discussion (EPD) on the future of the Ok Tedi mine may be in jeopardy following the granting of certain orders by the National Court last Friday, according to an inside source.

Deputy Chief Justice Gibbs Salika ordered that Ok Tedi Mining Ltd (OTML) refrain from dumping mine waste and tailings into the Ok Tedi and Fly River systems pending the hearing of the substantive matter on Feb 12. Salika ordered the Government to provide details and records of how it spent the dividends it received from OTML from 2001 to 2013.

The judge ordered a freeze on several trust accounts and for the plaintiffs to engage a reputable environmental scientist or firm to conduct extensive research into the extent of environmental pollution in the Fly River and its social, health and economic impact on the people.

The court granted the orders on an urgent application filed by lawyers Allan Bainyamai and Samson Jubi on behalf of a group of landowners.

The source said the court order could jeopardise the EPD, which aimed to seek a resolution between BHP Billiton and the PNG Government on drawing down long-term funds held by PNG Sustainable Development Program (PNGSDP).

The EPD panel, led by former prime minister Sir Rabbie Namaliu, was initiated in the wake of the O’Neill Government’s takeover of OTML and the dissolution of the previous PNGSDP board chaired by another former prime minister Sir Mekere Morauta.

The source said that BHP could view the court orders as a definitive step towards an environmental damages claim against the Australian-based global mining giant, which had previously operated Ok Tedi.

“BHP could reconsider giving the PNG Government the green light on the Ok Tedi long-term funds if it thinks this matter is heading towards an environmental damages claim,” the source said yesterday.

The source said under the current rules of the Ok Tedi supplementary agreement, the long-term funds worth K2 billion would be released only after the mine closed and BHP’s consent was needed to access the money.

“The National Court orders may be a temporary relief for the concerned landowners but it may jeopardise the long-term benefits under the current agreement unless the PNG Government renegotiates an acceptable package with BHP.”

Mine tussle goes offshore, PNGSDP seeks restitution of shares

Post Courier

The legal dispute between the State and PNG Sustainable Development Program over OK Tedi mine shareholding has now reached international arbitration.

The International Centre for Settlement of Investment Disputes has now registered PNGSDP’s request for international arbitration over the expropriation without compensation of the company’s 63.4 percent shareholding in Ok Tedi Mining Ltd.

This means that ICSID has accepted the case and that it will proceed.

The arbitration hearing is separate to all other litigation relating to the expropriation of the mine, including the latest National Court action.

The chairman of PNGSDP, Sir Mekere Morauta, said PNGSDP is seeking restitution of the 63.4 percent of OTML illegally expropriated by the State, or failing that, compensation for the shares.

“The State’s expropriation of the shares through the 10th Supplemental Agreement Act last year, without compensation, is in breach of international law,” he said.

“It also breaches the normal standards of behavior of a State towards a foreign company. PNGSDP is well within its rights to seek restitution,” he said.

“PNGSDP believes it has a strong case and looks forward to having its property returned to it.”

Sir Mekere said the next step is for an arbitration tribunal of three eminent international jurists to be set up. The members will be appointed by agreement between PNGSDP, the State and ICSID.

It is likely that this will happen towards the middle of the year, with hearings possible soon afterwards.

Sir Mekere said when the mine is returned to PNGSDP, the company will begin talks with the Western province community so that agreement can be reached on the most appropriate arrangements for the future of the province.

Sir Mekere said PNGSDP is very keen to resume its social and economic development program in Western Province.

Prime Minister Peter O’Neill is on a historic visit to Bougainville and cannot be reached for comment, but a government spokesperson said the government was committed to its plan for Ok Tedi and the people of western province.

“Talks between an eminent person’s group led by Sir Puka Temu and PNGSDP and other parties are ongoing and we cannot speculate on an outcome at this stage,” said the spokesperson.

ICSID is an international institution set up under the International Convention on the Settlement of Investment Disputes Between States and Nationals of Other States.

It facilitates arbitration proceedings allowing independent tribunals to decide cases under its rules, and all contracting member states agree to enforce and uphold arbitral awards in accordance with the convention.

PNG became a signatory to the convention with the passing of the Investment Disputes Convention Act in 1978. One hundred and fifty other countries are signatories.

International arbitration by ICSID is available to PNGSDP under section 39 of the Investment Promotion Act.

From its creation in 1965 to 30 June 2012, ICSID has registered 390 investment dispute cases, of which 250 have been concluded.

New Twist In Ok Tedi drama: PNGSDP registers arbitration case

Martyn Namorong | Namorong Report

They say it aint over until the fat lady sings and the battle over the giant Ok Tedi Copper Gold mine in the Star Mountains of Western Papua New Guinea has taken another new twist.

The Chairman of the Papua New Guinea Sustainable Development Program (PNGSDP), Sir Mekere Morauta today announced that the company has registered its dispute with the PNG Government with the International Centre for Settlement of Investment Disputes (ICSID).

Sir Mekere said PNGSDP is seeking restitution of the 63.4 percent of Ok Tedi Mining Limited (OTML) illegally expropriated by the State, or failing that, compensation for the shares.

“The State’s expropriation of the shares through the 10th Supplemental Agreement Act last year, without compensation, is in breach of international law,” he said.

With the filing of the case with the ICSD, it is expected that a tribunal of three eminent international jurists will set up by the ICSD, in consultation with PNGSDP and the Government. The tribunal is expected to be set up by the middle of this year with hearings expected later.

Meanwhile, Fly River landowners from the South Fly District of Western Province have successfully obtained a court order restraining OTML from dumping mine wastes and tailings into the Ok Tedi Fly River Catchment. The court also ordered the payment of K45 million to the landowners to fund independent scientific research into the health and environmental impacts of the Ok Tedi Mine and pay for legal costs.

Despite the court order, it is understood that the Ok Tedi mine continues to operate as the court orders have not been served on the Tabubil Headquartered Company.

The landowners actions have received support from the Opposition Leader Belden Namah.

“This Court action is a head start for affected land owners and communities around the country to getting justice through the Courts against the Government and the Extractive Industry.

Our reaction to the case before the National Court is this. We have adopted a stupid system where the state has got itself tangled up in Mining and Hydrocarbon developments as a shareholder as well as a regulator. When a government becomes an investor in a project, it places itself in a conflict of interest and easily compromises the interests and welfare of the people that it is supposed to protect or promote,” Namah said.

Namah also took a swipe at Prime Minister O’Neill for comments made against the court ruling.

“For the Prime Minister to say, “I hope the courts generally understand the consequences of the claims they are hearing. We don’t just rely on the courts to uphold the law; we rely on the courts to appreciate the consequences of their decisions and rulings”, is in effect suggesting to the Courts not to dispense justice but to support political and economic expediencies of government,” he added.

In 2012, Ok Tedi Mining Limited had total net assets worth K2.6 billion. It’s Managing Director, Nigel Parker described the year 2013 as “just like a tiger”. Last year Ok Tedi suffered operational failures at its mill and mine pit and had to be closed for months on end. Parker also revealed that production for 2013 was around 100 000 tonnes of copper compared to 146 000 tonnes the previous year. Sales from Ok Tedi were also affected when a major buyer in the Philippines was affected by Super Typhoon Haiyan.

Uncertainty brews over the future of the mine, once regarded as World Class copper gold producer. With mine life extension, there is expected to be a smaller mine however the expectations from its various stakeholders run higher than the mountain peaks of the Star Mountains. The mist that shrouds the mine located up in the cloud-lands of Western Province painting a rather ominous sign of the unpredictable path that lies ahead for the mine that underpins PNG’s economy.

PNG takeover of SDP to proceed in international arbitration

Radio New Zealand

The Papua New Guinea government’s move to take over control of PNG Sustainable Development Program Ltd’s majority share in the Ok Tedi mine has gone to international arbitration.

The International Centre for Settlement of Investment Disputes has registered the SDP’s request for arbitration over the government seizure of the company’s 63.4 percent shareholding in Ok Tedi Mining Ltd.

The arbitration hearing is separate to other litigation relating to the takeover of the Western Province mine, including National Court action by landowners against OTML which has been ordered to stop dumping mine tailings into local river systems.

The SDP chairman, Sir Mekere Morauta, says the company is seeking restitution of the share of OTML which he says was illegally expropriated by the State, or failing that, compensation for the shares.

Sir Mekere says that when the mine is returned to SDP, the company will discuss with the Western Province community the most appropriate arrangements regarding the Ok Tedi mine for the future of the province.

Court orders K45 million set aside to pay for Ok Tedi studies and lawyers fees

The National Court has ordered K45 million be set aside to pay for research into the impacts of the Ok Tedi mine and ‘reasonable legal costs’. But the monies are to be held in a National Court account pending further orders rather than being immediately dispersed to Bamiyamai Lawyers as requested by the lawyers themselves.

The setting aside of the K45 million was part of the private (ex parte) orders made by Deputy Chief Justice Salika last Friday in a dispute between a group of disaffected Western Province landowners and the State.

The full ruling by the court can be downloaded here – Ok Tedi ex parte decision Jan 2014 [1.8MB]

The size of the K45 million fund has caused some commentators to call into question the motives of the Plaintiffs and their lawyers.

The order for the payment of the K45 million into the account of the National Court was made in a private hearing with no opportunity for the Sate or the mining company to be heard.

The monies are to be used for a study of the extent of environmental pollution in the South Fly area of the Fly river and its social, health and economic impact. Also a health study on the extent of the environmental impact on the lives of people living in the South Fly area.

The court has also ordered Ok Tedi Mining Limited and the State to disclose all records of dividends paid to shareholders since 2001and provide details of how it has spent those dividends.

Further OTML, the State and PNG Sustainable Development program must disclose details of all payments made with funds from the 2001 and 2007 Community Mine Continuation Agreements.

The orders were made on an application by a group of seven landowners and two local-level government Presidents from the southern Fly area, represented by Bamiyamai lawyers