A slurry spill occurred and entered the sea at Basamuk Bay, Madang Province of PNG. The spill was caused by a malfunction of the deep-sea tailings placement system of the Ramu Nickel-Cobalt Project. Given widespread media attention, there were photos of the sea turning red and dead fish floating in the area of sea concerned.
As a result, the Madang Provincial Government imposed a Fish Ban an on the harvesting, sale, purchase, and marketing of fish and other marine produce from the maritime waters of the province.
Although no one challenged the Fish Ban the National Court invoked its power and duty under s57(1) (enforcement of guaranteed rights and freedoms) of the Constitution centered on the human rights implications of the Fish Ban. There were four issues that were subject to an inquiry; (i) who imposed the ban?; (ii) under which law was the ban imposed?; (iii) are there any legal and factual or scientific reasoning on continuing the Fish Ban?; and (iv) have any person’s human rights been infringed by such a fish ban?
The court held:
(i) The decision to impose the ban was made by a group of managers in the provincial administration headed by the provincial administrator with the tacit approval of the Governor on behalf of the provincial government;
(ii) That the decision to impose the Fish Ban was not based in law and therefore the ban was unlawful as the decision was made ultra vires;
(iii) That there were good and sound legal or factual reasons, including scientific reasons, to continue the ban; and
(iv) That the continuation of the ban would infringe on the human rights of all persons in the province who harvest, sell, purchase, market and or consume produce for their livelihood, namely freedom based on law under s32(2) of the Constitution, the full protection of the law under s37(1) of the Constitution and freedom from harsh or oppressive or other prescribed acts under s41(1) of the Constitution.
The Court declared and ordered that:
- The decision to impose the Fish Ban was made ultra vires and contrary to law, is null and void, unenforceable and of no effect and annulled the ban.
- All persons who would in the absence of the Fish Ban be able to lawfully harvest, sell, purchase or market fish and other marine produce from the maritime waters of Madang Province could resume activities.