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 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) N3986

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 April 2010
• Court: National Court
• Citation: (2010) N3986
• Docket Number: WS NO 202 OF 2010
• Year: 2010
• Judgement Number: N3986

Full Title: WS NO 202 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 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) N3986

National Court: Cannings J

Judgment Delivered: 2 April 2010

N3986

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

Kimbe: Cannings J

2010: 2 April

INJUNCTIONS – orders in nature of interim injunctions – motion seeking clarification of effect of previous order.

A defendant company restrained from doing certain things by an order in the nature of an interim injunction granted by the National Court sought, by motion, a declaration that an activity it proposed to undertake would not contravene the interim injunction. The motion was opposed by the plaintiffs.

Held:

(1) It is appropriate for a party affected by a court order to come back to the court seeking clarification of the order before engaging in conduct or undertaking an activity that may be perceived as a breach of the order.

(2) Here, the activity proposed to be undertaken by the first defendant was not such that it is reasonably likely to amount to a breach of the court order; and it was appropriate to make a declaration to that effect, such a declaration being a clarification, not a variation of the existing order.

Cases cited

The following cases are cited in the judgment:

Newsat Ltd v Telikom PNG Ltd (2008) N3673

Ome Ome Forests Ltd v Ray Cheong (2002) N2289

Counsel

R William, for the plaintiffs

G Gileng, for the first defendant

L Kandi & R Gwaibo, for the second, third, fourth & fifth defendants

2 April, 2010

1. CANNINGS J: This is a ruling on a motion seeking clarification of a previous court order. That order, which I made in Madang on 19 March 2010, arose out of the following events.

2. The first defendant, Ramu Nico Management (MCC) Ltd – (“MCC”) is the developer of the Ramu Nickel Project in Madang Province. The plaintiffs say that they represent customary landowners who are concerned about the proposed method of tailings disposal from the project, known as a deep sea tailings placement system. MCC plans to lay a 1 kilometre offshore pipeline on the sea bed, and pump mine wastes out to sea.

3. On 4 March 2010 the plaintiffs 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 MCC from committing various alleged nuisances arising from its mining activities.

4. On 12 March 2010 they applied, by motion, for a number of orders, including interim injunctions, in relation to the proceedings. The motion was opposed by MCC and other defendants, the Mineral Resources Authority, the Director of Environment, the Department of Environment and Conservation and the State.

5. On 19 March 2010, I handed down a ruling on the plaintiff’s motion, refusing some of the orders that they were seeking but granting an interim injunction in the following terms:

The defendants and their associates, agents and employees and persons for whom they are jointly or severally responsible shall cease all preparatory or construction work on the Ramu Nickel Mine deep sea tailings placement system that involves directly or indirectly damage or disturbance to the offshore environment – including, without limiting the generality of the foregoing, all coral blasting or popping of dead or live coral and laying of pipes – and shall not carry out directly or indirectly any such work, pending determination of the substantive proceedings.

MCC’S POSITION

6. MCC want the effect of the 19 March injunction clarified. They want to start preparatory work on the 1 kilometre pipeline immediately as this will mitigate the losses they say that they are incurring on a daily basis because of the 19 March injunction. They say that the preparatory work will involve no damage or disturbance to the offshore environment; thus they will not breach the court order by undertaking this activity.

7. MCC has applied by a motion filed on 29 March 2010 for an order that the proposed work, referred to in an affidavit by the project manager of the deep sea tailings placement system, Dr George Shou, “does not contravene the interim injunction granted on 19 March 2010”.

8. Dr Shou says that the pipeline will consist of 12-metre individual lengths welded together. MCC wants to start fabrication of the pipeline, using a welding machine stationed on shore, 24 metres above the high-water-mark. As the weld is completed concrete ballast will be attached to the pipe on shore at about 6 metres above the high-water-mark. When a weld is completed the pipe will be lifted by crane to clear the ground and a boat will pull the pipe out to sea. The pipe including the ballast will then float. Dr Shou says that the pipes and ballast will be clearly visible during the day. Flashing lights will be attached to warn boats in darkness.

9. As to the composition of the pipes and ballast, Dr Shou deposes:

The pipe is made of plastic. The ballast is constructed of concrete. They have no toxicity. Neither individually nor in combination will the pipe and ballast cause any damage or disturbance to the offshore environment. Their presence floating on the water will have no greater impact on the offshore environment than any other object floating on the surface of the sea.

10. Dr Shou says that what MCC is proposing does not involve laying the pipeline, only its fabrication.

OTHER DEFENDANTS’ POSITION

11. Mr Kandi and Ms Gwaibo, representing all defendants other than MCC, indicated that the other defendants – all State agencies or the State itself – generally support MCC’s position.

THE PLAINTIFFS’ POSITION

12. The plaintiffs oppose the motion. They say there is no good reason for this sort of order to be made. The 19 March injunction is clear and unambiguous and what MCC is doing is inviting the court to do the work of State agencies whose job it is to allow or prohibit the sort of activities it proposes to undertake. Mr William, for the plaintiffs, also argued that the sort of activity proposed to be undertaken is inherently risky. The welding work, though proposed to be carried out onshore, may have a flow-on effect on the offshore environment. The floating of pipes on the sea will inevitably be an environmental hazard. Further, MCC is really seeking a variation of the 19 March injunction in the guise of a clarification and this should not be allowed to happen as MCC has already filed a motion, which has been set down for hearing in Madang on 12 April 2010, asking the court to discharge or vary the injunction.

ISSUES

1 Does the Court have jurisdiction to clarify its own orders?

2 Would the Court be exceeding its jurisdiction by making the order sought?

3 Are there too many risks involved in the proposed activity?

4 Is MCC seeking a variation of the 19 March injunction?

5 Should an order be made?

1 CAN THE COURT MAKE AN ORDER CLARIFYING AN EARLIER ORDER?

13. The National Court has no specific or express power to make the sort of order that MCC is seeking. Mr Gileng, for MCC, refers to the general provisions of Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution. I consider that they are sufficient sources of authority.

14. The court has recognised in previous cases that it is appropriate for a party affected by a court order to come back to the court seeking clarification of the order before engaging in conduct or undertaking an activity that may be perceived as a breach of the order (Ome Ome Forests Ltd v Ray Cheong (2002) N2289, Newsat Ltd v Telikom PNG Ltd (2008) N3673).

15. I consider that MCC is taking a proper approach and acting in good faith by seeking an order clarifying the effect of the 19 March injunction.

2 WOULD THE COURT EXCEED ITS JURISDICTION BY MAKING THE ORDER SOUGHT?

16. Mr William contended that MCC, by asking for this sort of order, appears to be asking the National...