Eddie Tarsie for Himself and in his capacity as Ward Councillor of Ward 3, Saidor Local-Level Government and Farina Siga, for Himself and in his capacity as Ward Secretary of Ward 3, Saidor Local-Level Government and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for Himself and as Chairman of Pommern Incorporated Land Group No 12591 v Dr Wari Iamo in his capacity as Director of Environment and Department of Environment and Conservation and Mineral Resources Authority and Ramu Nico Management (Mcc) Limited and The Independent State of Papua New Guinea (2010) N4033

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 May 2010
• Court: National Court
• Citation: (2010) N4033
• Docket Number: OS (JR) NO 225 OF 2010
• Year: 2010
• Judgement Number: N4033

Full Title: OS (JR) NO 225 OF 2010; Eddie Tarsie for Himself and in his capacity as Ward Councillor of Ward 3, Saidor Local-Level Government and Farina Siga, for Himself and in his capacity as Ward Secretary of Ward 3, Saidor Local-Level Government and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for Himself and as Chairman of Pommern Incorporated Land Group No 12591 v Dr Wari Iamo in his capacity as Director of Environment and Department of Environment and Conservation and Mineral Resources Authority and Ramu Nico Management (Mcc) Limited and The Independent State of Papua New Guinea (2010) N4033

National Court: Cannings J

Judgment Delivered: 27 May 2010

N4033

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 225 OF 2010

EDDIE TARSIE FOR HIMSELF AND IN HIS CAPACITY AS

WARD COUNCILLOR OF WARD 3,

SAIDOR LOCAL-LEVEL GOVERNMENT

First Plaintiff

FARINA SIGA, FOR HIMSELF AND IN HIS CAPACITY AS

WARD SECRETARY OF WARD 3,

SAIDOR LOCAL-LEVEL GOVERNMENT

Second Plaintiff

PETER SEL

Third Plaintiff

POMMERN INCORPORATED LAND GROUP NO 12591

Fourth Plaintiff

SAMA MELAMBO FOR HIMSELF AND AS CHAIRMAN OF

POMMERN INCORPORATED LAND GROUP NO 12591

Fifth Plaintiff

V

DR WARI IAMO IN HIS CAPACITY AS

DIRECTOR OF ENVIRONMENT

First Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Second Defendant

MINERAL RESOURCES AUTHORITY

Third Defendant

RAMU NICO MANAGEMENT (MCC) LIMITED

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2010: 21, 27 May

JUDICIAL REVIEW – application for leave to seek review of decisions of Director of Environment to grant amendment to environment permit – Environment Act, Section 71 – requirements for granting of leave – whether an arguable case exists – whether there has been undue delay.

The plaintiffs applied for leave to seek judicial review of the decision of the Director of Environment to grant an amendment under Section 71 of the Environment Act to an environment permit. The State opposed the granting of leave on two grounds: that there was no arguable case for judicial review and that the application for leave was delayed and failed to meet the requirements of Order 16, Rule 4 of the National Court Rules.

Held:

(1) There are five requirements for granting of leave to seek judicial review: (a) locus standi; (b) decision must be of a public body; (c) arguable case; (d) exhaustion of administrative remedies; (e) no undue delay.

(2) One of the requirements was not met: (e) no undue delay. Leave was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Leto Darius v Commissioner of Police (2001) N2046

Louis Medaing v Minister for Lands and Physical Planning (2010) N3917

Counsel

T Nonggorr, for the plaintiffs

I Molloy & W Mapiso, for the fifth defendant

27 May, 20101. CANNINGS J: The plaintiffs are seeking leave for judicial review of decisions of the Director of Environment made in November 2007 to grant an amendment to the environment permit for the Ramu Nickel project. The amendment allowed construction to commence on the deep sea tailings placement system.

2. The plaintiffs want the Director’s decision to allow the amendment, and associated decisions made under the Environment Act 2000, quashed. They want to argue that the decisions were made unlawfully, in breach of various provisions of the Environment Act. They require the leave of the court under Order 16, Rule 3 of the National Court Rules to argue this sort of case; and this is a ruling on their application for leave.

3. As I recently stated in Louis Medaing v Minister for Lands and Physical Planning (2010) N3917, when the National Court deals with applications for leave to seek judicial review, five requirements must be met. These were neatly summarised by Kandakasi J in Leto Darius v Commissioner of Police (2001) N2046:

1. He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;

2. The decision sought to be reviewed is that of a public body or authority;

3. The applicant has an arguable case on the merits;

4. All other available remedies have been exhausted; and

5. The application is being made promptly without undue delay.

4. The State has been joined as a defendant to these proceedings and has exercised its right under Section 8 of the Claims By and Against the State Act to be heard on the application for leave, and indicated that leave is opposed on two grounds. First, as to requirement No (3) of the above list, that there is no arguable case for judicial review. Secondly as to requirement No (5), that the application for leave has been delayed and fails to meet the requirements of Order 16, Rule 4 of the National Court Rules.

5. The State did not concede that the other requirements had been met and made no submissions, so I must first address those three matters and then consider the arguable case and delay issues.

1 DO THE PLAINTIFFS SATISFY THE FIRST, SECOND AND FOURTH REQUIREMENTS?

6. As to locus standi, the plaintiffs say that they are customary landowners or land groups in the Rai Coast area of Madang Province who are concerned about the environmental impact of the Ramu Nickel Project. In particular they are concerned about the proposed method of tailings disposal, known as a deep sea tailings placement system. I consider that the plaintiffs have amply demonstrated in the affidavits that have been filed that they have a genuine and legally recognisable interest in the subject matter of the decisions they want reviewed. They have standing.

7. The requirement that the decisions sought to be reviewed are those of a public body is self-evidently satisfied.

8. As to the exhaustion of administrative remedies I am satisfied that the plaintiffs have no readily available method available to them of seeking review of the Director’s decisions, under either the Environment Act or any other law. This requirement is satisfied.

9. The first, second and fourth requirements have been met.

2 DO THE PLAINTIFFS HAVE AN ARGUABLE CASE?

10. The plaintiffs’ Order 16, Rule 3(2)(a) statement sets out seven proposed grounds of judicial review:

1 The Decisions were made when no Environmental Impact Assessment had been conducted by the Department of Environment and Conservation and no reasonable decision maker ought to have made the decisions.

2 The Decisions were made when no Environmental Impact Assessment had been required to be performed by the miner by way of notice from the Director of the Environment and the Director ought to have required Ramu Nico Management (MCC) Ltd to conduct an environmental impact assessment of 5 million tonnes of mine tailings annually into Astrolabe Bay ought to have made the decisions, and no reasonable decision maker ought to have made the decisions. [sic]

3 The Decisions were made when no and/or no proper assessment and consideration of the environmental impacts of the mine tailings disposal plan had been done by the Department of Environment and Conservation and no reasonable decision maker ought to have made the decisions.

4 The decisions were made in breach of Section 6 of the Environment Act 2000 in that the Environmental Permit allowing the mine tailing disposal was given when the requirements of Section 6(2)(d) of the Environment Act 2000 had not been complied with.

5 The decision to grant an Amended Environmental Permit to allow construction and operation of the mine tailings disposal system should be quashed as they allow an activity to proceed that is contrary to and unlawful pursuant to the Environment Act 2000.

6 The Decisions were made contrary to the mandatory requirements of

Section 25(3) of the Constitution and ought to be quashed.

7 Dr Wari Iamo the Director of the Environment erred as he failed to take into account relevant considerations.

11. All of these grounds call into question directly or indirectly the exercise of discretion by the Director under Section 71 of the Environment Act, which states:

Where a permit holder makes application to amend a permit the Director shall determine whether the proposed amendment is a major amendment or a minor amendment and—

(a) where he determines that the amendment is a major amendment—may issue a notice to undertake an environmental impact assessment in accordance with Section 50; and

(b) in any case—having regard to the criteria set out in Section 65(3), may grant an amendment of the permit where he is satisfied of the matters set out in Section 65(1).

12. In this case it appears that the Director determined that the proposed amendment was not a major amendment and proceeded to grant the amendment under Section 71(b). That being the case he was obliged to be satisfied of the matters set out in Section 65(1), which states:

Subject to this section and Section 66, the Director may grant a permit where he is satisfied that—

(a) the activity which is the subject of the permit will be carried out in a manner which is consistent with all relevant Environmental Policies and the Regulations; and

(b) all reasonable steps will be taken to minimise any risk of environmental harm as a result of the activity; and

(c) the activity will not contravene any relevant environmental obligation...