Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo In His Capacity as the Director of the Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea v Eddie Tarsie for himself and in his capacity as Ward Councillor of Ward 3, Sidor LLG and Farina Siga for himself and in his capacity as Ward Secretary of Ward 3, Sidor, LLG and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for himself and as Chairman of Pommern Incorporated Land Group (2010) SC1075

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 16 July 2010
• Citation: (2010) SC1075
• Docket Number: SCA 40 OF 2010
• Year: 2010

Full Title: SCA 40 OF 2010; Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo In His Capacity as the Director of the Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea v Eddie Tarsie for himself and in his capacity as Ward Councillor of Ward 3, Sidor LLG and Farina Siga for himself and in his capacity as Ward Secretary of Ward 3, Sidor, LLG and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for himself and as Chairman of Pommern Incorporated Land Group (2010) SC1075

Supreme Court: Davani, Hartshorn and Sawong JJ

Judgment Delivered: 16 July 2010

APPEAL against exercise of discretion, principles to disturb - Standing to sue

ENVIRONMENT ACT 2000 s136(1) & s136(3)—whether environmental approval lawful—interpretation - - Regulation - gazettal notice, whether adequate notice to villagers—

PUBLIC OR PRIVATE NUISANCE—whether action for law of Papua New Guinea—defence of statutory authority to action for nuisance—

UNDERTAKING AS TO DAMAGES (value thereof)

NATIONAL GOALS AND DIRECTIVE PRINCIPLES, whether give rise to serious issue to be tried -

INJUNCTIVE ORDERS—arguable case—balance of convenience - delay

Facts

The appellants are the owner of a nickel mine in Madang Province now under construction and due for completion this year 2010. The other appellants are the State and the State regulatory bodies concerned with the construction and operation of the mine. The Respondents claim to be landowners affected by the proposed activities of the first appellant. Pursuant to legislation now repealed the first appellant obtained approval of the Ramu Nickel Environmental Plan 1999. The repealed legislation was replaced by the Environmental Act 2000 which contained a saving provision for approvals granted prior to that Act coming into force. The Ramu Nickel Environmental Plan 1999 provides for approximately 100,000,000 tonnes of tailings waste plus other waste material to be deposited into Basamuk and Astrolabe Bays over the life of the mine. In the National Court the Respondents obtained an interim injunction preventing construction of any undersea part of the tailings disposal system, arguing that (1) the activity proposed by the Ramu Nickel Environmental Plan 1999 is unlawful, the approval of the Plan is unlawful, and (2) because the mine was not operating on the coming into force of the Environmental Act 2000 the Ramu Nickel Environment Plan 1999 was not saved by the saving provision in s136(3) of the Act and the proposed undersea tailings disposal is unlawful under the Environmental Act 2000.

Held:

Davani and Sawong JJ, (Hartshorn J dissenting):

1. The Respondents are entitled to bring the proceedings for themselves, they do not necessarily represent other landowners at [10]. The trial judge did not err in finding the Respondents had standing; per Davani J at [11];

2. Serious questions are raised in relation to the law of nuisance & whether serious environmental damage will be caused; Davani J at [21]; If the undersea tailings disposal is allowed to proceed the potential environmental harm far outweighs the lifting of the injunction; Sawong J at [128];

3. The Appellants submission that the trial judge misinterpreted s136(3) of the Environment Act must be argued after defences are filed and evidence is tested; Davani J at [31];

4. An appellate court will be very cautious in reviewing interlocutory decisions; Davani J at [38];

5. The trial judge did not exercise his decision upon a wrong principle, take extraneous or irrelevant matters into account, mistake the facts or not take some matter into consideration; Davani J at [40]-[41];

6. The very serious issues raised relating to possible environmental damage are exceptional, the balance of convenience lies in maintaining the injunction and for the issues to go to trial; Davani J at [46]; . One of the key issues is whether the environmental harm that is likely to occur once the pipe line is constructed and the tailings are discharged, is authorized; per Sawong J at [118]; The Court should not brush aside the concerns of the landowners on a narrow basis; Sawong J at [125];

7. The principles upon which a court may grant an interlocutory injunction are well-established, namely, whether there is a serious question to be tried (Hartshorn J concurring at [53]), and discretionary matters such as where the balance of convenience lies and delay, and the provision of an appropriate undertaking as to damages; Sawong at [90] Davani J concurring at [1];

8. The consideration or application of the National Goals and Directive Principles in the Constitution is a serious issue to be tried; Sawong at [121];

9. Whether the common law principles relating to the statutory defence (to the common law action for nuisance) is or are appropriate and applicable to the circumstances of this case in particular and circumstances of PNG in general, is a serious issue to be tried; Davani J at [21], Sawong J at [124];

10. Per Davani and Sawong JJ the appeal is dismissed;

11. Per Hartshorn J (dissenting) [56] A serious question to be tried is not an arguable case that cannot be described as a strong case and which does not have a real possibility of ultimate success; at [61] There is no serious question to be tried, the appellants operated under approvals given under statute; the interpretation of s136(3) of the Environment Act as contended by the respondents is wrong and has no application to the facts, s136(1) is the principle saving provision; the evidence and arguments before the primary judge did not give rise to a serious as opposed to a speculative case; at [71] the lack of evidence of the first appellant’s behavior did not entitle the primary judge to find that there was a serious case that the anticipated environmental damage was not an inevitable consequence of the approved plan, thus not giving rise to a statutory defence to a claim in nuisance.

DECISION

Cases Cited

Papua New Guinea Cases

Andrew Ariako v Mahuyu Singoa [1995] PNGLR 38; Avia Aihi v The State (No 3) [1982] PNGLR 92; Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853; Sir Julius Chan v The Ombudsman Commission of Papua New Guinea [1999] PNGLR 240; Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572; Curtain Bros (PNG) Ltd v UPNG (2005) SC788; Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878; Gideon Barereba v Margaret Elias (2002) N2197; Gobe Hongu Ltd v NEC (1999) N1920; Golobadana No 35 Ltd v Bank of South Pacific Ltd (2002) N2309; Grand Chief Sir Michael Somare v Ila Geno (2008) N3406; Albert Kuluah v UPNG [1993] PNGLR 494; Markscal Ltd v MRDC [1996] PNGLR 419; MAS International Ltd v David Sode (2008) SC944; In Re Moresby Northeast Election Petition; Patterson Lowa v Goasa Damena [1977] PNGLR 429; Ron Napitalai v Casper Wallace (2010) SC1016; New Britain Oil Palm Ltd v Vitus Sukuramu (2008) SC946; NHC v Yama Security Services Pty Ltd (2000] PNGLR 69; Independent State of Papua New Guinea v Colbert [1988] PNGLR 138; Pacific Equities and Investment Ltd v Melanesian Trustee Services Ltd (2007) N3122; Public Employees Association of PNG v Napoleon Biyuwo Liosi [1988–89] PNGLR 585; Robinson v National Airlines Commission [1983] PNGLR 476; Brigadier General Jerry Singirok MBE v National Executive Council, Attorney–General of Papua New Guinea, The Independent State of Papua New Guinea and Brigadier Leo Nuia OBE; Brigadier General Jerry Singirok MBE v NEC (1997) N1590; The State v Central Provincial Government (2009) SC977; Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd (1995) SC488; Southern Highlands Provincial Government v NHC (2001) N2110; The Government of Papua New Guinea and Richard Harold Davis v Stanley Barker [1977] PNGLR 386

Overseas Cases

American Cyanide Company v Ethicon Limited (1975) 1 All ER 594; Caledonian Railway Co v North British Railway Co (1881) 6 App cases 114; Marriage v East Norfolk Rivers Catchment Board [1949] 2 All ER 1021; Will of Gilbert 1946 (NSW) LR 318

16th July, 2010

1. DAVANI J: The background of this matter is set out by my brother, Sawong J. Additionally, he has also set out in full the grounds of appeal and the law on the review of exercise of discretion by the primary judge in relation to the grant of interlocutory injunctive orders. I discuss the grounds of appeal and the manner in which the Trial Judge exercised his discretion, in the Court below. But briefly, this is an appeal...