Country
Papua New Guinea
Sources
InforMEA
Tagging
Evidence, Torts, Specific Performance, Taxation, Damages, Declaratory Relief, Standing, Precaution, Jurisdiction, Remedies
Abstract

This appeal was against the decision of the trial judge not to grant a permanent injunction against the use of a tailings pipeline.

Ramu Nico Management (MCC) Limited operates a Nickel mine and disposes of tailings from the mine by deep sea tailings pipeline discharge (DSTP). The location of the pipeline is in the Astrolabe Bay, an area of high importance for marine bio-diversity.

The environmental aspect of this appeal centred on whether the trial judge was correct in his findings that there was real potential for environment damage from the DSTP and that he had come to this conclusion with adequate consideration based on adequate evidence.

After considering the expert reports, testimonies and evidence the environmental harm is described as the effect on the benthos (altering the ecology of the Bay), toxicity and the behaviour of the tailings.

The judge in this Supreme Court proceeding held that even though there is limited evidence that the smothering of some benthos organisms at a depth of 1100 metres would have serious and adverse effects on other parts of the ecology. It was held that the although they may be unable to predict with certainty what the environmental effect of the DSTP will be, the evidence of the witnesses were reliable.

It was held that there was a great deal of uncertainty in the evidence regarding the effect of the toxicity of the DSTP. Despite these uncertainties the Judges held that a large amount of tailings including acid used in the extraction process, the neutralisation agents and seed water used to make the tailing would be discharged into the ocean.

The behaviour of the tailings was determined to be ‘virtually unknown’ and unpredictable as the currents in the sea will have a large role in movement. However despite the uncertainty of the effects the Judge stated ‘ should any government of the day allow this (DSTP) to happen when the resulting consequences are unknown…is contrary to the worlds best practice.’

‘Trial Judge [had] a very heavy responsibility, which was to make a decision which would, if the injunction were refused, meant that the local people would continue to languish in uncertainty, although benefiting under the 'development' programmes offered by Ramu Nico. Or if granted, as the Trial Judge himself said, "The multiplier effect on the provincial and national economy of commencement of a project of this magnitude, would be delayed. Investor confidence in PNG would be impaired."

Orders: Due to the economic risk, lack of sufficient scientific evidence or risk analysis and the precautions that could be taken to reduce environmental harm the appeal was dismissed.

 

(Summary provided by Eva Sheppard from the Queensland University of Technology)