Louis Medaingon his own behalf and on behalf of the Medaing families of the Tong Clan and the Sawang Families that make up the Ongeg Clan and the further 272 persons listed in schedule 1 of the writ of summons and Terry Kunning on his own behalf and on behalf of the further 152 persons listed in Schedule 2 of the Writ Of Summons and Martin D Yagau and Paul Kamang on his own behalf and on behalf of the further 17 persons listed in Schedule 3 of the Writ Of Summons and Bill Koi and Tamlong Tab on his own behalf and on behalf of the further 191 persons listed in Schedule 4 of the Writ Of Summons and Kamanang Namur on his own behalf and on behalf of the further 20 persons listed in Schedule 5 of the Writ Of Summons and Simon Sil and James Sungai on his own behalf and on behalf of the further 323 persons listed in Schedule 6 of the Writ Of Summons and Casper Angua on his own behalf and on behalf of the further 23 persons listed in Schedule 7 of the Writ Of Summons v Ramu Nico Management (MCC) Limited and the Indep

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 26 July 2011
• Citation: (2011) N4340
• Docket Number: WS NO 1192 OF 2010
• Year: 2011

Full Title: WS NO 1192 OF 2010; Louis Medaingon his own behalf and on behalf of the Medaing families of the Tong Clan and the Sawang Families that make up the Ongeg Clan and the further 272 persons listed in schedule 1 of the writ of summons and Terry Kunning on his own behalf and on behalf of the further 152 persons listed in Schedule 2 of the Writ Of Summons and Martin D Yagau and Paul Kamang on his own behalf and on behalf of the further 17 persons listed in Schedule 3 of the Writ Of Summons and Bill Koi and Tamlong Tab on his own behalf and on behalf of the further 191 persons listed in Schedule 4 of the Writ Of Summons and Kamanang Namur on his own behalf and on behalf of the further 20 persons listed in Schedule 5 of the Writ Of Summons and Simon Sil and James Sungai on his own behalf and on behalf of the further 323 persons listed in Schedule 6 of the Writ Of Summons and Casper Angua on his own behalf and on behalf of the further 23 persons listed in Schedule 7 of the Writ Of Summons v Ramu Nico Management (MCC) Limited and the Independent State of Papua New Guinea and Dr Wari Iamo in his capacity as Director of Environment (2011) N4340

National Court: Cannings, J.

Judgment Delivered: 26 July 2011

TORTS—nuisance—whether action for common law tort of nuisance excluded by Environment Act 2000—standing of plaintiffs: whether sufficient connection with land—whether anticipated effect of first defendant’s activity amounts to a nuisance—whether defence of statutory authorisation applies.

STATUTES—Environment Act 2000—whether first defendant’s proposed activity would be unlawful under the Act—whether a person is entitled to carry out an activity under an approval granted under the repealed Environmental Planning Act Chapter No 370 if the activity was not being carried out before the coming into operation of the Environment Act 2000—Environment Act 2000, s136.

CONSTITUTION—National Goals and Directive Principles—National Goal No 4 (natural resources and environment)—whether a claim that a defendant’s proposed activity is contrary to National Goal No 4 is justiciable—whether National Court authorised to make orders regarding proposed activities that are contrary to a National Goal under Constitution s23 (sanctions) or 25 (implementation of the National Goals and Directive Principles).

INJUNCTIONS—quia timet injunction—permanent injunction—considerations to take into account in exercise of discretion whether to grant relief sought.

The plaintiffs, who claim to have an interest in customary land areas including seawaters affected by a nickel project constructed by the first defendant, commenced proceedings by writ of summons seeking a permanent injunction to restrain the first defendant from operating a deep-sea tailings placement (DSTP) system. The plaintiffs’ claim for relief was based on three causes of action: (a) the common law tort of nuisance, (b) breach of the Environment Act 2000 and (c) breach of National Goal No 4 of the Constitution. The defendants argued (a) as to the common law claim, that it was excluded by the Environment Act 2000, which now provides a code for prosecution of alleged environmental harm, but if it is held that such a claim can be made, there was no environmental harm likely to occur and if it is held that such harm is likely, it is authorised by the approvals already given to the first defendant for operation of the DSTP, which provides a complete defence to an action in nuisance; (b) as to the alleged breach of the Environment Act, that there was no breach in view of the approval given under the repealed Act, which is saved under s136 of the 2000 Act, and the amended permits granted since the coming into operation of the 2000 Act; (c) as to the constitutional claim, that it was baseless in view of Constitution, s25(1), which provides that the National Goals and Directive Principles are non-justiciable; and, generally, that the plaintiffs lacked standing to prosecute their grievances as some were not genuine landowners and that in the event that any one or more of their causes of action were sustained the court should decline to grant an injunction as they were guilty of undue delay and would suffer no substantial prejudice if an injunction were not granted whereas the first defendant and others whose livelihood depends on the mine commencing operation soon would be seriously and adversely affected.

Held:

(1) The Environment Act does not exclude common law actions for nuisance. Though difficult to predict with exactitude there is a high likelihood that serious environmental harm over and above that predicted and authorised by the environment permit granted to the first defendant will be caused by operation of the DSTP. The defence of statutory authorisation failed. The plaintiffs established a cause of action in private nuisance and in public nuisance.

(2) Operation of the DSTP will not be unlawful under the Environment Act 2000 as that is an activity that is permitted to be done under the approval given under the repealed Act, which has been saved by the 2000 Act, and under conditions attached to permits that have been granted under the 2000 Act.

(3) The plaintiffs established to the satisfaction of the court that approval for and operation of the DSTP are actions that are contrary to National Goal No 4 of the Constitution.

(4) Each of the plaintiffs amply demonstrated that they are from coastal areas and have a genuine concern for the environmental effects of the DSTP. They all have standing to prosecute the action in nuisance.

(5) Despite the plaintiffs having established a cause of action in private nuisance and in public nuisance and that the proposed activity is contrary to National Goal No 4, the court declined to grant the injunction sought as (a) there had been some delay by the plaintiffs in commencing the proceedings; (b) the first defendant had been led to believe by the conduct of the second and third defendants that it had approval to operate the DSTP and the prospects of it facing these sorts of proceedings would not have been reasonably foreseeable; (c) the interests of the first defendant and many people whose livelihood depends on imminent commencement of the DSTP and the mine could be adversely affected; (d) all defendants appeared to be making genuine efforts to put in place effective monitoring protocols to ensure that any problems with operation of the DSTP will be quickly remedied; and (e) if environmental harm of the type reasonably apprehended by the plaintiffs does actually occur they will be able to commence fresh proceedings at short notice and seek the type of relief being denied them in these proceedings.

(6) All other relief sought by the plaintiffs except for the requirement for consultation was refused. As to consultation, the court ordered that the plaintiffs must be consulted and kept informed on a three-monthly basis on tailings and waste disposal issues concerning the mine, for the life of the mine.

(7) The parties were ordered to pay their own costs.

Cases cited

The following cases are cited in the judgment:

Allen v Gulf Oil Refining [1981] AC1001

Eddie Tarsie v Dr Wari Iamo (2010) N4033; Salamo Elema, Insurance Commissioner v Pacific MMI Insurance Limited (2011) SC1114; Lakunda Plantation Pty Ltd v Ian Maluvil [1981] PNGLR 252; Manchester Corporation v Farnworth [1930] AC 171; Louis Medaing v Ramu Nico Management (MCC) Ltd (2010) N4127; Louis Medaing v Ramu Nico Management (MCC) Ltd (2010) N4158; Pastor Johnson Pyawa v CR Andake Nunwa (2010) N4143; Pen Rumints v The State and Western Highlands Provincial Government [1993] PNGLR 94;Ramu Nico Management (MCC) Ltd v Eddie Tarsie (2010) SC1075; Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8; Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N3960; Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N3987; Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4005; Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4097; Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4141; Tarsie v Ramu Nico Management (MCC) Ltd (2010) N4142; The Independent State of Papua New Guinea v Lohia Sisia [1987] PNGLR 102

Abbreviations

The following abbreviations appear in the judgment:

CSIRO—Commonwealth Scientific & Industrial Research Organisation

DEC—Department of Environment and Conservation

DSTP—Deep Sea Tailings Placement

EP—Environment Plan (or Permit)

EU—European Union...