Data source
Date of text
26 Jul 2011
Seat of court
Original language


Type of text
National - higher court
Reference number
[2011] PGNC 95
Court name
National Court of Papua New Guinea
coastal ecosystem, constitutional law, ecosystem approach, ecosystem management, ecosystem preservation, Ecosystem restoration, ecosystem service, environmental security, hazardous waste, Land-based marine pollution, licence, Marine debris, Marine pollution, mining

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 theDSTP, 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(b) as to the alleged breach of the Environment Act, that there was no breach in view of the approval given under the repealed Act, which is saved under Section 136 of the 2000 Act, and the amended permits granted since the coming into operation of the 2000 Act; (c) as to the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, Section 25(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.
The Court held 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.
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.
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. 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.
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.
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.