Former Secretary for Mining
TODAY we know who leaders work for. Leaders work for worthless money. Money of miners made from people's land and resources. Very truth I warned PNG leaders and people since 2006.
Money is the reason for the creation of Mineral Resources Authority (MRA). If not for illegal tax in illegal production levy MRA would not have seen light of day.
At present MRA is unconstitutional and is operating illegally. Only reason is money.
Other weak policies like land reform and customary land registration are driven by money.
Ramu Nickel mine is very exposed. Hearing Basamuk leaders waking up leaders I breathed sigh of relief. MRA is the culprit in the midst. It is a Trojan horse.
Puka Temu cuddled it and took it in as National Alliance (NA) Government baby after 2007 National Election. I warned against it but Puka Temu saw me as a villain. Now I have the pleasure of being proven right. NA Government will pay.
When MRA brought in the lawyers who drafted the law that created it I knew landowners of Basamuk will be shut out. Swinging out litigation on environment, MRA works for money. Till landowners take on MRA they will not win.
The Environment (Amendment) Act 2010 is a very tyrannical law. It makes our Government of the people now for the miners.
Let us look at the legal implications of the Environment (Amendment) Act 2010 (EAA).
1. Property right [s.1(2) EAA]
Landowners of Basamuk and other areas of PNG have customary land ownership, possession, use of land and can do transaction within the same customary group. This property is protected by the Constitution.
By merely stating this right is compulsorily acquired for public purpose without providing for just compensation the law amounts to expropriation of property.
This makes the Environment (Amendment) Act 2010 unconstitutional as it contravenes Section 53 of the Constitution.
2. Public purpose [s.1(2) EAA]
Mines are money business. No money no mine.
Private investors will invest if the investment will yield certain financial rate of return.
If taxes were collected then mines would be of economic importance to a nation.
I do not agree mines are public purpose business activities.
Public purposes are service oriented. Transport infrastructure, recreation, accommodation and towns are clear examples of public purpose.
Utilities like telecommunication, power, water and sanitation can be public or private depending on object. Profit will mean private and service, public.
Mining is a private business for profit. It is not a public purpose activity.
3. Encroachment on other laws [s.69A EAA]
Mining is a regulated activity. Law on mining lays foundation for other laws. A mining lease is a precondition for mining business for instance. Environmental regulation will regulate this mining business.
The Environment (Amendment) Act 2010 will correct any defect in mining lease approval process and non compliance with condition of lease.
Apart from this, statutory discretions of officials under the Mining Act 1992 will be overridden by the Director of the Environment Act 2000. This is absolutely absurd.
4. Extinguishing cause of action [s.69B EAA]
PNG is a Western democracy. An important principle is checks and balances for excesses of power and authority by any person. The rule of law and due process are to give effect to checks and balances. The Environment (Amendment) Act 2010 gives more powers to one person without checks and balances.
The law also outlaws any legal suit against rogue mines. Ramu mine is very vulnerable without this law.
Ramu mine proceeded with construction phase on unlawful approval of the Chief Inspector of Mines of the MRA in June 2007. The Environment (Amendment) Act 2010 will legitimise this unlawful action by the Director of the Act under an Authorisation Instrument.
5. No regulation of mines [s.87A EAA]
After I was removed as Secretary for Mining in December 2006 and the Department of Mining was smothered in 2007 the mining industry has been unregulated since.
Under the Environment (Amendment) Act 2010 the Director may exempt Ramu mine from any requirement of the Mining Act 1992 and the Mining (Safety) Act Chapter 195A. This will leave lot of very frustrated people.
6. Smelting and tailings disposal [s.87B EAA]
Refinery and processing at Basamuk will produce tailings. It was proposed that tailings will be placed in deep canyons in the Basamuk bay.
Deep Sea Tailings Placement (DSTP) was the subject of recent litigation. There are good arguments on both sides.
Lihir mine is the best practice as it has more information on DSTP than any other mine in the world. Problems there would be surface plume dispersal and tsunami caused by tailings in case of undersea landslips.
Under the Environment (Amendment) Act 2010 the Director may use Lihir experience as best practice.
7. Environment and development [s.87C EAA]
Mining in essence is a dirty business. It is about moving dirt for money. Environment will be harmed.
The law on compensation is provided for in the Mining Act 1992. The process there is compensation by agreement between the licence holder and landholder. And Warden would only make a determination if no agreement is reached.
Under the Environment (Amendment) Act 2010 the Director can issue a certificate of necessary consequence and in effect remove right to compensation.
8. Liability for damage [s.87D EAA]
The general legal position in both common law and civil law jurisdictions is polluter pays. This was legally in PNG until now.
It means polluter will not be liable. A certificate of compliance will bar any claim for damages.
Summary
The Environment (Amendment) Act 2010 was intended to legitimise and outlaw any claim for damages which would have been legitimate had mines been properly legally regulated.
MRA is the culprit PNG must remove at once. It is only interested in money. Money in illegal tax in illegal production levy.
..........Poem..........
Shock and shame for money
By James Wanjik, Port Moresby, June 3, 2010
People and money are not same,
Resource abundance and
development poverty are paradoxes,
Leaders of PNG have lost worth,
Leaving people shocked
and shamed for money.
Well educated politicians
and tribal leaders of PNG,
Telling arrogance of lawyers
working for money,
Making so much noise of gong,
Moving true lawyers
and leaders to act.
Bold and brave so many people are,
Voicing truth and pondering most,
Letting leaders' arrogance laid bare,
Shocking and ashamed
for miners' money
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