Eddie Tarsie for Himself and in his capacity as Ward Councillor of Ward 3, and Saidor Local-Level Government Farina Siga, for Himself and in his capacity as Ward Secretary of Ward 3, and 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 Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo in his capacity as Director of Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea (2010) N3960

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 March 2010
• Court: National Court
• Citation: (2010) N3960
• Docket Number: WS NO 202 OF 2010
• Year: 2010
• Judgement Number: N3960

Full Title: WS NO 202 OF 2010; Eddie Tarsie for Himself and in his capacity as Ward Councillor of Ward 3, and Saidor Local-Level Government Farina Siga, for Himself and in his capacity as Ward Secretary of Ward 3, and 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 Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo in his capacity as Director of Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea (2010) N3960

National Court: Cannings J

Judgment Delivered: 19 March 2010

N3960

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 202 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

RAMU NICO MANAGEMENT (MCC) LIMITED

First Defendant

MINERAL RESOURCES AUTHORITY

Second Defendant

DR WARI IAMO IN HIS CAPACITY AS

DIRECTOR OF ENVIRONMENT

Third Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2010: 12, 19 March

INJUNCTIONS – interim injunctions – orders sought to restrain mining company from constructing tailings placement system and doing other things pending determination of substantive proceedings.

Individuals and land groups who claimed to have an interest in customary land over which a special mining lease has been granted commenced proceedings by writ of summons seeking permanent injunctions to restrain the holder of the mining lease (the first defendant) from committing various alleged nuisances arising from mining activities. Shortly after filing and serving the writ, the plaintiffs applied by motion for orders that: (i) the first defendant be stopped from constructing its planned deep sea tailings placement system pending determination of the substantive proceedings, (ii) the first defendant pay for an independent environmental assessment of the deep sea tailings placement system and (iii) all defendants provide the plaintiffs with all environmental plans and approvals and related documents concerning the project.

Held:

(1) The second and third type of orders sought by the plaintiffs are unnecessary or inappropriate and neither the balance of convenience nor the interests of justice require that they be made.

(2) However, as to the first order sought – stopping work on the deep sea tailings placement system – different considerations arise, and the court was satisfied that:

(a) there are serious questions to be tried and the plaintiffs have an arguable case;

(b) an undertaking as to damages has been given;

(c) damages would not be an adequate remedy if an injunction is not granted;

(d) the balance of convenience favours the granting of an injunction;

(e) the interests of justice require that there be an injunction.

(3) All five considerations favour the granting of an interim injunction, stopping work on the deep sea tailings placement system, though not in terms as broad as sought by the plaintiffs.

(4) The Court made an order requiring the first defendant to cease all preparatory or construction work on the deep sea tailings placement system that involves directly or indirectly damages or disturbance to the offshore environment pending determination of the substantive proceedings.

(5) All other relief sought by the plaintiffs was refused and the parties were ordered to pay their own costs.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Mainland Holdings Ltd v Stobbs (2003) N2522

Mark Ekepa v William Gaupe (2004) N2694

Counsel

T Nonggorr, for the plaintiffs

J Kumura, for the first defendant

D Aikung-Hombhanje ,for the second defendant

19 March, 2010

1. CANNINGS J: 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. On 4 March 2010, they commenced proceedings in the National Court at Madang, by a writ of summons and statement of claim, in which they are seeking permanent injunctions to restrain the holder of the mining lease (the first defendant, Ramu Nico Management (MCC) Ltd – “MCC”) from committing various alleged nuisances arising from its mining activities. The plaintiffs claim that if the deep sea tailings placement system goes ahead, enormous damage will be done to the marine environment in and around Astrolabe Bay, which will affect their livelihood. They say that even though MCC has an environment permit which purports to authorise the proposed deep sea tailings placement system, that permit was granted under the repealed Environmental Planning Act, and does not as a matter of law authorise the torts of private and public nuisance that will be committed if the deep sea tailings placement system is allowed to proceed.

2. On the same day that they filed the writ, the plaintiffs filed a notice of motion under which they seek a number of orders, including interim injunctions. It is that motion that is now before the Court.

WHAT ORDERS ARE THE PLAINTIFFS SEEKING?

3. The plaintiffs are seeking three types of orders:

Ø First, they want the Court to stop MCC from starting work on the deep sea tailings placement system. In particular they want an order to prevent what has been called in various media reports as “coral blasting”, pending determination of the substantive proceedings.

Ø Secondly, they want the Court to order MCC to fund an independent environmental impact assessment of the deep sea tailings placement system.

Ø Thirdly, they want all defendants ordered to provide them with all environmental plans and approvals and related documents concerning the Ramu Nickel Project.

4. The first type of order is sought under paragraphs 2 to 5 of the notice of motion, the second type under paragraph 6 and the third type under paragraph 7. These paragraphs state:

2. That pursuant to Order 14 Rule 10 of the National Court Rules and Section 155(4) of the Constitution the defendants and/or their associates and employees are restrained from any and all coral blasting and/or destruction whatsoever of the water, sea bed or fauna pending determination of the substantive hearing.

3. That pursuant to Order 14 Rule 10 of the National Court Rules and Section 155(4) of the Constitution, that the defendants and/or their associates and employees be restrained from any preparatory work including construction for the disposal of deep sea tailings or waste into the sea waters at Basamuk, Astrolabe Bay and/or Basamuk Bay pending determination of the substantive hearing.

4. That pursuant to Order 14 Rule 10 of the National Court Rules and Section 155(4) of the Constitution that the First Defendants and or their Associates or Employees be restrained from putting any waste whatsoever into the sea waters at Basamuk, Basamuk Bay or Astrolabe Bay pending the determination of the substantive proceedings.

5. That pursuant to Order 14 Rule 10 and Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution that the Defendants and/or their associates and employees be restrained from relying on the Ramu Nickel Environmental Plan 1999 Approval or any subsequent additional environmental approvals pertaining to the disposal of waste and tailings into the Basamuk and Astrolabe Bays pending the determination of the substantive proceedings.

6. That pursuant to Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution the First Defendant fund an independent environmental impact assessment of the proposed dumping of waste and tailings into the Basamuk and Astrolabe Bays in accordance with the terms of the Environmental Act 2000 and an examination of alternative methods of tailings and waste disposal -

(a) the entity that carries out the environmental impact assessment must be agreed to by all parties to these proceedings, and

(b) the entity shall be at liberty to discuss its progress on the assessment with the lawyers for the parties in these proceedings, and

(c) that once the assessment is completed, copies shall be provided to all the lawyers of the parties to these proceedings.

7. That pursuant Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution that the defendants shall provide to the Plaintiffs’ Lawyers within 7 days copies of the following documents:

(a) All environmental plans, all environmental approvals environmental impact statements and reports concerning the Ramu Nickel Project and Special Mining Lease;

(b) Memorandum of Agreement (currently under review);

(c) Mine Development Contract;

(d) Any...