Environment (Amendment) Act 2010 ….What it means;

Environment Act 2000

The original Environmental Act 2000 was an excellent piece of state-of-the-art legislation. It came into force and was law on 1 January 2004. It states it is an Act to give effect to the National Goals and Directive Principles, in particular the 4th goal which deals with Natural Resources and Environment and to regulate the environmental impacts of development activities in order to promote sustainable development of the environment and the economic, social and physical well-being of people by safeguarding the life-supporting capacity of air, water, soil and ecosystems for present and future generations and avoiding, remedying and mitigating any adverse effects of activities on the environment; and to provide for the protection of the environment from environmental harm.

The Environment Act 2000 achieves this by requiring developers such as mining or oil and gas companies to apply for an Environmental Permit if their development is likely to cause environmental harm.

Environmental Permits

The process for an Environmental Permit is lengthy and it is intended to ensure that all stakeholders in development, including landowners, are informed about the activity that the developer proposes to do and its effect on the environment (sections 41 to 73).

So in the case of a proposed large mine, the miner gives notice of the preparatory work for the mine and then the Director (the Secretary of the Department of Environment) gives a notice requiring the miner to undertake an Environmental Impact Assessment (EIA) and such assessment must include environmental and social impacts and details of public review of the Environmental Impact Statement(EIS) and the approval in principle of the Minister for Environment and Conservation for the proposed activity. Before submitting the EIS, the miner must give an Inception Report to the Director which is a plan for the EIA and the Director if happy with the Inception report, approves it and the miner can proceed with compiling the EIS and then gives it to the Director.

When the Director receives the Environmental Impact Statement (EIS) he must assess it and he may call conferences or seek advice on it but then he must make the EIS available for public review.

When the Director is satisfied that the EIS describes the social and environmental impacts adequately and steps have been taken to minimize environmental harm, he may accept the EIS.

The Director then refers the EIS to the Environment Council along with his report and the public submissions.

When Council receives the EIS it has to consider the EIS , having regard to many matters including objects of the Environmental Act, any environmental harm, public submissions, best practice for the activity, any international treaties etc . If accepted the Environment Council will then make a recommendation to the Minister that approval in principle for the proposed activity be given and they must give written reasons why.
The Minister may then approve or refuse to approve the activity but he must give written reasons for his decision.

Once that approval has been given, the miner can now lodge an application for an Environmental Permit and will submit it along with the Environmental Impact Assessment.

The Director may then grant the permit if he is satisfied that environmental risk has been minimized, the activity will be carried out in accordance with environmental policies and that the activity does not contravene any international treaty, and he shall have regard to a long list of matters including the objects of the Environment Act, the general duty not to cause environmental harm, any public submission, best practice, public interest etc.

The Director can then grant the permit on conditions.

If a person is unhappy with the Director’s decision to grant the Permit, he may apply for a Review of the decision by the Environmental Council, and if he is unhappy with the decision of the Environment Council, he may appeal to the National Court.

Compensation under Environment Act 2000

A permit holder is liable in respect of entry on the land or occupation of the land by the permit holder, to pay compensation for environmental damage he causes as a result of carrying on the acts approved under the permit. Landowners on areas adjourning the land occupied can also get compensation and that is usually drawn up at the beginning as the harm is predicted by the EIS and the EIA. It is done by agreement, and if the parties fail to agree, the Director can make the determination which is appealable to the national Court.

The Environment (Amendment) Act 2010

The amendments introduced by the Environment (Amendment) Act 2010 effectively reverse the protections under the Environment Act 2000 and protect the developer at the expense of the landowners and the environment.

The amendments provide the Director with the power to issue in his sole unfettered discretion authorizations and 4 different types of certificates, which can
1) authorize the miner to do new environmentally hazardous acts not envisaged in the original Permit,
2) exempt the miner from liability from acts done outside the terms of the permit,
3) certify that the miner has somehow complied with the permit by doing certain actions not set out in the permit
4) certify that otherwise preventable environmental harm is “necessary or inevitable” harm and excuse the miner for liability and
5) Certify that what the miner is doing is the best practice environmental practice for the activity.

The Director doesn’t have to consult with anyone (let alone landowners or provincial governments) consider any reports, treaties, the Environment Act 2000 or anything in his decision.

Worse – each of these decisions is specifically spelt out to not be challengeable or reviewable in a court or tribunal.

But worst of all, the amendments state that these decisions and the activities they allow do not form a cause of action in tort or otherwise, or an offence and are not unlawful.

Why is that bad ?

What is a Tort ?

In legal speak, a tort is a civil wrong, as opposed to a criminal wrong. Instead of the perpetrator going to jail, the perpetrator has to pay compensation or is stopped from doing whatever the wrong is. So if a man hits a woman, she can sue him in the tort of battery and seek compensation. Or is a man constantly jumps over another man’s fence and crosses his land without permission, the owner can sue the man for trespass and get an injunction to stop the man from coming onto his land.

So what is a tort in this sense, in the new amendments ? If an activity was conducted under any of these new authorizations or certificates and it caused environmental harm, the landowners could not go to Court and sue to stop the miner from doing the activity. They wouldn’t have any say on the authorization or certificate, would have been kept in the dark until the activity was being performed and then they would be powerless to stop it – however harmful it may be.

The compensation provisions in S87 cover compensation pursuant to the activities under the Permit on land occupied by the permit holder or adjoining such land, but not these new activities under the authorizations. Landowners' rights to compensation for environmental harm which is caused under these authorizations and certificates has been removed.

Factual example: - if Miner A has been dumping mine tailings into a river no 1 under a Permit but decides to start dumping into river no 2 which is not approved under the Permit, and then after 3 years, the landowners along river no 2, 50km from the mine start complaining that their water is always dirty and the fish have disappeared, Miner A could write to the Director to
a) Authorize the activity of dumping into river no 2 for the last 3 years
b) Grant an exemption certificate that Miner A has not been operating outside the now new permit, and
c) Grant a certificate that the dirty river and the disappeared fish are a “necessary or inevitable consequence” of the activity of dumping,

And the Director could issue the authorization and certificates and the landowners couldn’t appeal it, challenge it and they couldn’t sue in nuisance (tort) for an injunction to stop it or for compensation.

It would leave the landowners completely powerless with a dead river.

What specific sections take away landowners’ rights ?

There are 8 new sections which specifically take away everyone’s rights (including landowners’ rights to seek a review of the director’s decision and to sue in tort to protect their land from future or continuing harm and compensation. They are as follows:-

Section 69A. DIRECTOR MAY AUTHORISE ASSOCIATED ACTS

(3) The Director’s decision to grant an authorization is final and may not be challenged or reviewed in any court or tribunal.

Section 69B. ACTIVITY DOES NOT CONSTITUTE A CIVIL CAUSE OF ACTION OR AN OFFENCE

If the Director grants an authorization under Section 69A, the holder of the permit for the associated activity is entitled to carry out that act, or work and the carrying out of that act, work or activity does not constitute a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful.

Section 87A. DIRECTOR MAY GRANT AN EXEMPTION CERTIFICATE

(4) The Director’s decision to issue the Exemption Certificate is final and may not be challenged or reviewed in any court or tribunal.

Section 87B. DIRECTOR MAY ISSUE BEST PRACTICE CERTIFICATE

(4) The Director’s decision to issue the Best Practice Certificate is final and may not be challenged or reviewed in any court or tribunal, except at the instigation of any aggrieved holder of an Authorization Instrument.

Section 87C. DIRECTOR MAY ISSUE CERTIFICATE OF NECESSARY CONSEQUENCE

(4) The Director’s decision to issue the Certificate of Necessary Consequence is final and may not be challenged or reviewed by any court or tribunal, except all the instigation of an aggrieved holder of any Authorization Instrument.

(5) The carrying out of a conduct or proposed conduct, or the occurring of consequences, referred to in a Certificate of Necessary Consequence do not constitute wholly or partly a civil cause of action, whether in torts or otherwise, or an offence and are not unlawful.

Section 87D.DIRECTOR MAY ISSUE A CERTFICATE OF COMPLIANCE

(4) The Director’s decision to issue a Certificate of Compliance is final and may not be challenged or reviewed in any court or tribunal, except at the instigation of an aggrieved holder of any Authorization Instrument.

(5) If carrying out of any act, work or activity that is the subject of a Certificate of Compliance does not constitute wholly or partly a civil cause of action, whether in torts or otherwise, or an offence and is not unlawful.

How do these sections take away landowners’ rights?

These Sections clearly bar access to review by the court and take away an INTERESTED party’s right to sue in tort for compensation for environmental harm or for an injunction to prevent such present or future harm, should the Director in his sole unfettered discretion allow the developer to do an activity that causes environmental harm under his new absolute powers.

It affects “interested parties” as a third party with no interest would have no standing to sue in any event, so the claim by Minister for the Environment Benny Allen that the new amendment Act prevents third parties from interfering in projects is utter nonsense.

The amendments prevent INTERESTED parties from exercising their rights to protect their land.

Landowners are clearly such interested parties. Who else would be suing in tort for prevention for environmental harm ?

MPF Taking the Lead

The Madang People's Forum (MPF) has taken the lead in raising the awareness against the unpopular Environmental Act amendments in Madang. They are expanding the awareness through out all the districts in Madang as a build up to the public stakeholder forum on the 19th of June and the National Protest Day on the 23rd of June 2010.

MPF which is the people's forum in Madang that facilitates and coordinates discussions and action plans on issues affecting landowners, feels that, the changes to the Environmental Act was a direct response to the court challenges and the Bongu petition against the DSTP. Therefore it is taking the lead in raising the awareness in all the districts in Madang.

The 23rd of June will go down in the history books of PNG as the peaceful Madang people will protest against the bill. All ready, the Oro, Morobe, Port Moresby and New Ireland are also preparing for the National Protests which may not fall on the same day as Madang but on days organized by their organizers. 

The Prime Minister is Lying

The Prime Minister Sir Michael Somare expressed disappointment that the amendment to the Environment Act has been confused and misinterpreted.

Sir Michael said, “No landowner rights have been curtailed by the introduction of this recent amendment to the Environment Act of 2000.

“Project developers must still comply with PNG’s strict environment regulations before permits can be issued by the Department of Environment.

“This rigorous process of compliance safeguards in the first instance the interest of landowners, their land and the environment.

“Having said this, it would be irresponsible of government not to also protect the interest of project developers that have complied with our environment regulations and therefore been issued permits.

“There is a section in the Environment Act of 2000 that allows companies that have already been issued permits to proceed with their developments even though some Acts were repealed as a result of the amendment of 2000.

“The Bill recently introduced by Parliament merely gives clarity and erases doubts on the application and the saving and transition provisions in the Environment Act of 2000.

“The amendment does not mean we have lowered our standards of environmental protection.

“I urge the media and the public to find out the facts and importantly to read and understand legislation in general before issuing misleading statements that cause unnecessary anxiety,” said Sir Michael.

The Prime Minister is NOT telling the Truth!

1 The Prime Minister is LYING when he says that no landowner rights have been removed.

2 The permitting process is still there BUT the changes have been put in there to protect the companies and the government if they make mistakes - either if the government is negligent in permitting something that causes great harm, they can escape liability - and also the companies - if they initially said they wouldn"t cause harm and then do cause harm - they can get out of liability to the landowners.

3 The Act gives sole and absolute power to the Director of the Environment to approve past, present or future environmental harm - no matter how great or small - and get the developers out of liability.

4 That power and his decision is NOT reviewable or challengeable in a Court of Law and the landowners cannot sue for compensation for the past harm or to to prevent any future harm.

5 The landowners have been stripped of their common law and customary rights to go to Court to seek protection from or compensation from such harm AND THAT IS THE PLAIN FACT.

6 A constitutional reference has been filed by the Rai Coast landowners to challenge the new Act for breaches of human rights and for breaching the national goals and directive principles.

7 It is clear either the Prime Minister has received bad advice and should sack whoever is advising him or is deliberately lying to the people on this issue and we suggest he reads the Act for himself.

Removing the buffer on the eve of the World Environment Day

 The core strength to environmental protection in PNG is the customary land tenure system and the fact that the environmental act before the amendments considered landowners traditional rights and protected it under the law. That has been my view every since I watched a film (forgot the title) in my environmental science class at the university of PNG as a final year student.

That video was about a medical scientist doing research on traditional medicine somewhere in the Amazon forest. The medical scientist spent 10 years of research with an indigenous tribe that lives in that forest area. The research involved traditional and indigenous knowledge of various plants, barks, roots and leaves.

One day the government decided to sell the land to a company who decide to clear fell the forest and build a cattle ranch. Without warning or negotiation with the indigenous tribe who lives in that forest area, the company dispatched heavy machinery clear fell the forest and burn it at the same time. It was the fire that destroyed the indigenous village and the research centre. The forest people lost their homes and everything while the medical research work for 10 years was completely destroyed.

Two things came to my mind as I was watching the film in my class.

1.       Firstly, that indigenous forest community did not have their traditional rights protected under the law of their country and therefore their government did whatever it pleased and it was non-negotiable. There was no consultation and there was no free prior informed consent. Therefore, that forest community was forced to evacuate their traditional village without any form of compensation or relocation plans from their government.

2.       Secondly, the 10 years of medical research based on traditional and indigenous knowledge of forest people which would have resulted in the cure for various diseases we have today was destroyed in the furnace.

That film inspired me to be a strong advocate of customary land protection in PNG and I have always referred to many times especially in discussions on environmental protection and customary lands.

The fact that the government and the companies in PNG had to go through a lot of hassles to deliberate on landowners’ issues which is in fact an impediment to their progress, but from the landowners’ perspective, it is a ‘buffer’. That buffer provides for the avenue for all negotiations with consent landowners with regard to any project development and that includes issues relating to environment. By removing the traditional land rights of landowners from taking legal action on environmental damage will escalate environmental impacts by project developers.  

I feel it is not wise to remove this important buffer by changing the Environmental Act. The government should be representing the interest of its people and not foreign investors. Given the fact that the number one crisis affecting and threatening both the rich and poor nation in the world is directly related to environmental issues now resulting in global warming and climate change. Therefore it is the last thing; we want to see our government going down the track of environmental irresponsibility especially on the eve of June 5 –the World Environment Day.  

Our Environment is Connected to our Life

As I watched the "Uprooted" a documentary about the communities affected by the Ramu Nickel Mine in the Madang Province of Papua New Guinea, Michael Kasuk's statement about the connection of the environment and people caught my attention.  This is a community leader from Ramu very articulate in making the connection the government and many educated Papua New Guineans cannot.

"We are concerned about our environment - our bush, land and river is connected to our life" says Mr. Kasuk. Unfortunately, the Government of PNG does not see these important connections when deliberating on major development projects like mining, logging and industrial agriculture. It's main focus is on economic development without much consideration on the social and ecological aspects.

The communities within major project development areas have little to show in terms of social improvements and ecological sustainability. The rate of environmental destruction is as if we are leaving tomorrow for another planet. There is no sense of responsibility.

There is a lot of experiences both in PNG and around the world for the Government to learn from and make wise decisions. However, the trend now is easy access for foreign multinational  companies to exploit our resources without any social and ecological responsibility or accountability.