Environmental litigation typically tests a lawyer’s patience and commitment through long, drawn-out proceedings that can take years to reach any resolution. It is not the stuff of popular fiction or television plot lines. Last week, however, one particular case in Papua New Guinea (PNG) reached “Law and Order” level drama with missing plaintiffs, a mysterious fax, and a cliffhanger ending.
ELAW partners in Papua New Guinea (PNG) have spent many months challenging their government’s decision to permit a Chinese mining company, Metallurgical Corporation of China (MCC), to dump millions of tons of nickel mining waste into Basamuk Bay off the country’s Rai coast. (Australian mining company Highlands Pacific Ltd. is a minority stakeholder in the project). This practice is known as “deep sea tailings placement” (DSTP), and is banned in China and Australia (among other countries).
Indigenous landowners along the coast oppose this waste disposal project because it will destroy the marine environment — affecting coral reefs, water quality, and fisheries. Thousands of landowners have signed a petition opposing the project. Earlier this year, PNG lawyer Tiffany Nonggorr filed a suit on behalf of several landowners. She faces a well-funded team representing the government and MCC, that has filed reams of documents and expert affidavits. Armed with technical support from regional scientists, ELAW staff scientist Mark Chernaik, and ELAW board member Professor Glenn Miller, Tiffany was able to counter MCC’s arguments that the mine waste would be harmless and obtained an injunction temporarily halting construction of the pipeline that would carry the waste out to sea. Lawyers for the mining company appealed the decision multiple times, including to the country’s Supreme Court, only to be turned back. At each step, ELAW’s staff attorneys worked with Tiffany to defeat the government’s and mining company’s attempts to lift the injunction.
Last week marked what was to be the start of a trial to determine whether the injunction should stay in place while the court decides the legal issues in the case. News reports described that the landowner plaintiffs were being threatened and harassed. Attempts to safely escort the plaintiffs by boat into the town of Madang for the proceedings were thwarted by gun-toting thugs. Then news broke that the plaintiffs were missing. After not being able to contact the landowners for several days, and on the eve of the trial, a fax came into Tiffany’s office from another law firm stating that the firm had instructions to represent the three landowner plaintiffs — and that the plaintiffs would be withdrawing from the case. This came as a shock and surprised even the judge, who stated that the circumstances surrounding the plaintiffs’ decision were “suspicious.” When questioned by Judge Cannings about their intentions, the landowners indicated that they still opposed DSTP, and were happy with how the case had proceeded so far, but were concerned about their personal safety and wanted to case to be discontinued.
Each day of the proceedings last week was incredibly dramatic. Would the three original plaintiffs appear in court? Would the court accept their decision to withdraw from the case? Would the court discontinue the proceedings after months of preparation, or would the judge allow a new plaintiff to continue? Each morning I would rush to my laptop and check for regional news reports and Facebook posts from ELAW partner Effrey Dademo, an attorney with Act Now! PNG who has been working with Tiffany on the case.
Finally the judge’s decision came last Friday. The case would be discontinued and the injunction lifted. Defeat. Heartbreak. But wait! Judge Cannings later declared that he would consider fresh proceedings filed by new plaintiffs and an application for an injunction. Many landowners have bravely stepped forward to be involved with the case despite considerable personal risk. Reprieve!
So as you go about your day, please send your thoughts of solidarity and support to the lawyers and local landowners who are valiantly pursuing this case on behalf of PNG’s coastal communities. We hope to be able to report good news soon.
ELAW Staff Attorney