Last fall we shared the twists and turns of a David and Goliath lawsuit in Papua New Guinea to prevent a Chinese mining company (MCC) and its Australian partner (Highlands Pacific) from discharging millions of tons of toxic mining waste near community fishing grounds off the country’s northeastern coast.    After a long and complicated trial early this year, in which noted marine and environmental scientists described the devastating environmental impacts of the company’s plan to pump a slurry of mine waste into Basamuk Bay, the National Court announced that it would issue its decision on May 23.  Over 1,000 landowners are plaintiffs in the case.  Along with their lawyer, Tiffany Nonggorr, they spent several months anxiously awaiting the judge’s verdict.  Everyone’s patience was tested when the Court postponed judgment day — twice.  Finally, July 27 arrived.

With the significant time difference between the U.S. and PNG, I knew that news would be breaking just about the time I’d be going to sleep.  I had my laptop open on the bedside table and periodically checked for news while nervously reading an article (that I now can’t remember) in The New Yorker.  I could barely stand it.  Soon, I started seeing updates from Effrey Dademo, an ELAW partner and attorney with Act Now! PNG.

At first, the ruling sounded as though there would be a clear victory for the landowners.  Effrey continued to report intermittently for over two hours, as the 67-page opinion was read aloud.  The Court rejected the mining company’s assurances that the waste would be “benign” and agreed with the plaintiffs that the waste would not stay deep below the water’s surface, but would likely be brought towards the surface by upwelling.  Turning to the legal issues, Justice Cannings concluded that the toxic mine waste would cause a private and public nuisance.  He also declared that the government’s decision to approve the mine waste disposal plan:

“amounts to an abuse and depletion of Papua New Guinea’s natural resources and environment – not their conservation – for the collective benefit of the People of Papua New Guinea and for the benefit of future generations, to discharge into a near-pristine sea (a widely recognised hotspot of biodiversity), mine tailings at a rate of 5 million tonnes of solids and 58.9 million cubic metres of tailings liquor per year. It constitutes unwise use of our natural resources and environment, particularly in and on the seabed and in the sea. It amounts to a breach of our duty of trust for future generations for this to happen.”

And then, the devastating news came.  Justice Cannings refused to permanently stop the mine waste disposal in part because the company had spent a considerable amount of money to build the system.  The decision had many people scratching their heads in shock and dismay at the final outcome of the case. (You can hear a Radio Australia  interview with Tiffany Nonggorr immediately following the judgment here).

The landowners were not deterred.  They immediately asked Tiffany to file an appeal with the country’s Supreme Court, which she promptly did.  On Monday, the Supreme Court blocked MCC from discharging mine waste into the bay until it could hear the appeal later this month!

The determination of communities along the Rai coast to protect their coastal environment is inspiring.  During the trial, several landowners described the sea as a “garden” that their daily lives depend on.  Their fight has prompted Green party legislators in Australia to push for legislation that would prevent Australian mining companies from engaging in practices, like deep sea mine waste disposal, in foreign countries that are illegal at home.

Liz Mitchell
ELAW Staff Attorney