In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, Section 57 Re circumstances of ban on harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of Madang Province (“The Fish Ban”) (2020) N8221

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 February 2020
• Citation: (2020) N8221
• Docket Number: HROI No1 of 2020
• Court: National Court
• Year: 2020
• Judgement Number: N8221

Full Title: HROI No1 of 2020; In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, Section 57 Re circumstances of ban on harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of Madang Province (“The Fish Ban”) (2020) N8221

National Court: Cannings J

Judgment Delivered: 19 February 2020

N8221

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HROI NO 1 OF 2020

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS

UNDER THE CONSTITUTION

OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

RE CIRCUMSTANCES OF BAN

ON HARVESTING, SALE, PURCHASE AND MARKETING OF FISH AND OTHER MARINE PRODUCE FROM

THE MARITIME WATERS OF MADANG PROVINCE

(“THE FISH BAN”)

Madang: Cannings J

2020: 31st January, 14th, 18th, 19th February

HUMAN RIGHTS – Constitution, s 57 (enforcement of guaranteed rights and freedoms) – power and duty of National Court to inquire into, protect and enforce guaranteed rights and freedoms – own initiative inquiry into ban imposed by provincial government on harvesting, sale, purchase and marketing of fish – determination of who imposed the ban – whether ban imposed under any law – whether good and sound reasons for continuing ban –whether human rights of any persons will be infringed by continuation of ban.

The National Court took judicial notice of a ban imposed by or on behalf of a provincial government on the harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of the province (the “Fish Ban”) and its apparent adverse effect on various persons and communities in the province. The Court invoked the power and duty in s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution to protect and enforce the human rights of those persons who appeared to have been adversely affected by the ban, by commencing proceedings on its own initiative that were in the nature of an inquiry into four questions: (1) Who imposed the Fish Ban? (2) Under what law was the Fish Ban imposed? (3) Are there good and sound legal and factual, especially scientific, reasons for continuing the Fish Ban? (4) Will any person’s human rights be infringed by continuation of the Fish Ban?

Held:

(1) The decision to impose the ban was made by a group of managers in the provincial administration, headed by the provincial administrator, with the tacit approval of the Governor, on behalf of the provincial government.

(2) The provincial government and its officers involved in the decision to impose the ban did not purport to rely on any law that gave them authority to make the decision. The decision was motivated by a concern for public health and safety arising from a spillage in the sea of tailings and slurry from a mine and refinery. However, there is no law that supports the decision, which was made ultra vires.

(3) There are no good and sound legal or factual reasons, including scientific reasons, to continue the ban.

(4) Continuation of the ban will infringe the human rights of all persons in the province who harvest, sell, purchase, market and/or consume fish or other marine produce, especially those who rely on fish and other marine produce for their livelihood, namely freedom based on law under s 32(2) of the Constitution, the full protection of the law under s 37(1) of the Constitution and freedom from harsh or oppressive or other proscribed acts under s 41(1) of the Constitution.

(5) Declared and ordered that: The decision to impose the ban was made ultra vires (without power) and contrary to law, and is null and void, unenforceable and of no effect. The ban is annulled. All persons who would in the absence of the ban be able to lawfully harvest, sell, purchase or market fish and other marine produce from the maritime waters of the province are permitted to resume such lawful activities.

Cases Cited

The following cases are cited in the judgment:

Buni Morua & 79 Others v China Harbour Engineering Company Ltd (2020) N8188

Nail Lamon v Snr Const Zakang Bumai (2008) N3468

Namah v Pato (2014) SC1304

Re Alleged Brutal Treatment of Suspects (2014) N5512

Re Circumstances of Alleged Detention of Asylum Seekers (2014) N5529

Re Conditions of Detention at Buka Police Lock-Up (2006) N4478

Re Conditions of Detention at Buka Police Lock-Up (2006) N4976

Re Conditions of Detention at Kimbe Police Lock-Up (2006) N3918

Re Conditions of Detention at Lakiemata Correctional Institution (2006) N5007

Re Human Rights of prisoners sentenced to death (2017) N6939

Re Release of Prisoners on Licence (2008) N3421

The State v Transferees (2015) SC1451

INQUIRY

This was an inquiry by the National Court under Section 57 of the Constitution into the human rights implications of a fish ban.

Counsel:

T M Ilaisa, for the First Respondent

H Kila & N Taka, for the Second Respondent

J Bakaman for the Third Respondent

Sir Arnold Amet, the Fourth Respondent, in person

SMellombo, the Fifth Respondent, in person

B B Wak, for the Sixth Respondent

F Duadak, the Seventh Respondent, in person

S I Asivo, the Eighth Respondent, in person

A Kintau, the Ninth Respondent, in person

N Sawau, the Tenth Respondent, in person

E Utu, the Eleventh Respondent, in person

R Bosli, the Twelfth Respondent, in person

M Ronny, the Thirteenth Respondent, in person

M Lalu, the Fourteenth Respondent, in person

19th February, 2020

1. CANNINGS J: On 24 August 2019 there was a slurry spill into the sea at Basamuk Bay, Madang Province, apparently caused by a malfunction of the deep-sea tailings placement system of the Ramu Nickel-Cobalt Project. The spill was given wide media attention. Photos of the sea turning red and dead fish found floating in the sea were published. There was a great deal of public disquiet. People were concerned about the effect of the spill on the environment and on the fish stocks and on public health and safety. Questions were raised about whether it was safe to eat fish from the local area. Within a week or so of the spill it became public knowledge that Madang Provincial Government imposed a ban on the harvesting, sale, purchase and marketing of fish and other marine produce from the maritime waters of the province. This has become known as the “Fish Ban”.

2. In the period from September to December 2019 the Madang Provincial Government and a number of other governmental bodies including the National Fisheries Authority, the Conservation and Environment Protection Authority and the Mineral Resources Authority conducted investigations into the causes and the effect of the spill. The National Executive Council decided that the matter was of great public importance and directed the governmental bodies to inquire into the matter and report back on what action was required.

3. I am the Judge Administrator of Madang Province. I live in the community. As the weeks and months passed in the latter part of 2019 I took judicial notice of concerns expressed in the local community about the Fish Ban and the effect it was having on many people. The famous Madang Fish Market was closed. Madang’s restaurants were showing in their menus that fish was “Off Stock”. Fishermen were not going out to sea. It was general knowledge that the Fish Ban was being adhered to. Its effect seemed to spread the length of the coastline from Rai Coast District in the east (the border with Morobe Province) to Bogia District in the west (the border with East Sepik Province). Madang was the maritime province without fish.

4. No one challenged the Fish Ban in Court so on 8 January 2020 I decided on the own initiative of the National Court to commence proceedings under s 57(1) (enforcement of guaranteed rights and freedoms) of the Constitution, centred on the human rights implications of the Fish Ban. I conducted an inquiry into the matter and this judgment is the product of that inquiry. It is set out as follows:

A the Court’s jurisdiction is outlined;

B the procedures adopted by the Court are explained;

C the four main issues are outlined;

D evidence given by the parties is summarised;

E the four main issues are determined;

F orders and declarations are considered.

A JURISDICTION

5. Papua New Guinea’s Constitution enshrines a number of human rights, also known as Basic Rights and constitutional rights. They are principally drawn from the United Nations Universal Declaration of Human Rights. They are conferred by the following sections of the Constitution:

· right to freedom (s 32);

· right to life (s 35);

· protection from inhuman treatment (s 36);

· protection of the law (s 37);

· proscribed acts (s 41);

· liberty of the person (s 42);

· freedom from forced labour (s 43);

· freedom from arbitrary search and entry (s 44);

· freedom of conscience, thought and religion (s 45);

· freedom of expression (s 46);

· freedom of assembly and association (s 47);

· freedom of employment (s 48);

· right to privacy (s 49);

· right to vote and stand for public office (s 50);

· right to freedom of information (s...