Yet another claim
p. 25 · Read in the full issue
LANDOWNERS downstream from the giant Ok Tedi copper mine in Papua New Guinea have launched one of Australia’s biggest ever
damages case seeking an unspecified
sum of money from the mine’s major stakeholder, BHP, for environmental
damage.
The case, which has the potential to set a history making environmental
precedent, has sparked a flurry of
activity at the highest political levels in Canberra and Port Moresby and even prompted claims that it is threatening the future of mining in PNG. The Ok Tedi mine is set high in the remote Star Mountains in PNG’s Western Province.
Each day it dumps a staggering 100,000 tonnes of waster water, rocks and sediment into the Ok Tedi river.
Rex Dagi, a landowner from the
Miripiki clan, whose village of Yogi lies 60 kilometres downstream, says the damage caused by waste dumping has ruined his people’s way of life. Before mining the river was the centre of the villagers’ life. It provided water for drinking and washing, fish and other marine life for eating and a highway for canoes visiting other villages and the port of Kiunga. Village gardens were planted on its rich flood plain.
Now, according to Dagi, all that is gone. Gardens on the flood plain have been silted up forcing people to move them to less fertile ground in the mountains.
Streams have choked with sediment turning them into swamps, fish are no longer able to survive in the river; nor are crocodiles, which used to provide a good income from the sale of skins. The river has risen up to five metres since mining began in 1984 and in places is so silted it is not always navigable by canoe. “People are living in fear,” said Dagi.
In the fast flowing parts “canoes have overturned and people have lost their properties”, he said. A report prepared by the Australian Conservation Foundation last year found sediment from the mine contained heavy metals such as cadmium, lead, zinc and copper.
It said high sediment loads and metal contamination had rendered the first 70 kilometres of the Ok Tedi “almost
biologically dead” and “dramatically reduced species
biodiversity over the next 130 kilometres”. Research by Ok Tedi Mining Limited (OTML), the company which operates the mine, shows there have also been significant reductions in fish stock in the Fly river which carries water from the Ok Tedi to the sea. Behind this devastating environmental damage is OTML’s failure to build a tailings dam to hold the waste.
The landowner’s Melbourne-based lawyer Nick Styant- Browne says he doesn’t know of any similar mine built in the 70s or 80s which does not have a tailings dam or similar containment system. Back in 1983, before the mine began operation, the PNG government insisted a dam be built but after a landslide collapsed the dam while it was still under construction the government bowed to OTML’s claim that building a dam in such steep terrain was not economic.
The 7500 landowners who have joined the case so far are seeking damages and an injunction to force OTML to build a tailings dam. BHP says it will vigorously defend the action and points out the Ok Tedi mine “operates in compliance
with PNG law and with the full support of the PNG government”. Already the case is causing a storm.
Ok Tedi, which is 50 per cent owned by BHP and 30 per cent owned by the PNG government, is a mainstay of the PNG economy. OTML’s deputy general manager Kipling Uari says the legal action is insulting to the PNG government and the land owners. He told Radio Australia the Austra lian lawyers involved “seem to think that the government of Papua New Guinea cannot handle the business of making sure that the
mining companies comply with its require
ments in terms of managing its environ ment” and he accused them of having “purely mercenary interests”.
Styant-Browne rejects the claim. He says action has been taken in Melbourne because it was at BHP’s Melbourne headquarters
that most of the crucial decisions have been made. Landowner Dagi says he wanted the case to be heard in Melbourne, as well as in PNG, so it would attract international attention.
Before taking the case to court, Dagi says he spent five years trying to get people in Port Moresby to respond to his grievances. “Everytime we tried to talk to the government or Ok Tedi (OTML) they never had time for us so that is what led us to take proceedings,” Dagi said.
Back in the villages along the Ok Tedi, Dagi says people are so frustrated they want the mine closed but he stresses this is not his objective. He wants the mine to stay open and for landowners problems to be addressed before they get any worse. The company' has made some moves setting up a 2.5 million Kina Ok Tedi Development Trust. Dagi says it is not enough. “They set up two water tanks in each village plus community halls but what I am concerned about is basic needs. We don’t need a community hall, we need something to live on,” said Dagi. The most interesting aspect of the case is not whether OTML has breached a particular statute but whether it had a common law duty not to damage other
people’s land.
Former PNG judge Brian Brunton, now director of the Port
Moresby-based Individual Community' Rights Advocacy
Forum, says if the case goes to court it will deliver a major precedent. Mining companies "6an’t do in Australia what they have been doing in PNG", Brqnton said.
“The politicians have sold the country short by agreeing to lax environmental standards,”, he said. Brunton rejects claims that the case could jeopardise the future of mining. “I think mining will go ahead in PNG but the government will have to take into account the true environmental and social cost,” he said. “These large scale open pit projects which use the natural resources of this country, namely the river systems, for waste disposal will just have to reconsider their methods of operation.” There is no doubt the stakes are high.
If the Ok Tedi landowners win, landowners affected by mines at Porgera and Bougainville are also likely to lodge claims. If the court were to decide the landowners have the right to sue in Melbourne, rather than PNG, Australian mining companies could face suits from disgruntled land owners all around the world. More than that, any decision based on common law is likely to have applicability in all countries with a British legal tradition. □