N4033

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 225 OF 2010

EDDIE TARSIE FOR HIMSELF AND IN HIS CAPACITY AS WARD 
COUNCILLOR OF WARD 3, SAIDOR LOCAL-LEVEL GOVERNMENT
First Plaintiff

FARINA SIGA, FOR HIMSELF AND IN HIS CAPACITY AS WARD 
SECRETARY OF WARD 3, SAIDOR LOCAL-LEVEL GOVERNMENT
Second Plaintiff

PETER SEL
Third Plaintiff

POMMERN INCORPORATED LAND GROUP NO 12591
Fourth Plaintiff

SAMA MELAMBO FOR HIMSELF AND 
AS CHAIRMAN OF POMMERN INCORPORATED LAND GROUP NO 12591
Fifth Plaintiff

V

DR WARI IAMO IN HIS CAPACITY 
AS DIRECTOR OF ENVIRONMENT
First Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Second Defendant

MINERAL RESOURCES AUTHORITY
Third Defendant

RAMU NICO MANAGEMENT (MCC) LIMITED
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2010: 21, 27 May

JUDICIAL REVIEW – application for leave to seek review of decisions of Director of Environment to grant amendment to environment permit – Environment Act, Section 71 – requirements for granting of leave – whether an arguable case exists – whether there has been undue delay.

The plaintiffs applied for leave to seek judicial review of the decision of the Director of Environment to grant an amendment under Section 71 of the Environment Act to an environment permit. The State opposed the granting of leave on two grounds: that there was no arguable case for judicial review and that the application for leave was delayed and failed to meet the requirements of Order 16, Rule 4 of the National Court Rules. 

Held:

(1)	There are five requirements for granting of leave to seek judicial review: (a) locus standi; (b) decision must be of a public body; (c) arguable case; (d) exhaustion of administrative remedies; (e) no undue delay.

(2)	One of the requirements was not met: (e) no undue delay. Leave was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Leto Darius v Commissioner of Police (2001) N2046
Louis Medaing v Minister for Lands and Physical Planning (2010) N3917

Counsel

T Nonggorr, for the plaintiffs
I Molloy & W Mapiso, for the fifth defendant

27 May, 2010. CANNINGS J: The plaintiffs are seeking leave for judicial review of decisions of the Director of Environment made in November 2007 to grant an amendment to the environment permit for the Ramu Nickel project. The amendment allowed construction to commence on the deep sea tailings placement system.

2. The plaintiffs want the Director’s decision to allow the amendment, and associated decisions made under the Environment Act 2000, quashed. They want to argue that the decisions were made unlawfully, in breach of various provisions of the Environment Act. They require the leave of the court under Order 16, Rule 3 of the National Court Rules to argue this sort of case; and this is a ruling on their application for leave. 

3. As I recently stated in Louis Medaing v Minister for Lands and Physical Planning (2010) N3917, when the National Court deals with applications for leave to seek judicial review, five requirements must be met. These were neatly summarised by Kandakasi J in Leto Darius v Commissioner of Police (2001) N2046:

1.	He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;

2.	The decision sought to be reviewed is that of a public body or authority;

3.	The applicant has an arguable case on the merits;

4.	All other available remedies have been exhausted; and

5.	The application is being made promptly without undue delay.

4. The State has been joined as a defendant to these proceedings and has exercised its right under Section 8 of the Claims By and Against the State Act to be heard on the application for leave, and indicated that leave is opposed on two grounds. First, as to requirement No (3) of the above list, that there is no arguable case for judicial review. Secondly as to requirement No (5), that the application for leave has been delayed and fails to meet the requirements of Order 16, Rule 4 of the National Court Rules.

5. The State did not concede that the other requirements had been met and made no submissions, so I must first address those three matters and then consider the arguable case and delay issues. 

1	DO THE PLAINTIFFS SATISFY THE FIRST, SECOND AND FOURTH REQUIREMENTS?

6. As to locus standi, the plaintiffs say that they are customary landowners or land groups in the Rai Coast area of Madang Province who are concerned about the environmental impact of the Ramu Nickel Project. In particular they are concerned about the proposed method of tailings disposal, known as a deep sea tailings placement system. I consider that the plaintiffs have amply demonstrated in the affidavits that have been filed that they have a genuine and legally recognisable interest in the subject matter of the decisions they want reviewed. They have standing.

7. The requirement that the decisions sought to be reviewed are those of a public body is self-evidently satisfied.

8. As to the exhaustion of administrative remedies I am satisfied that the plaintiffs have no readily available method available to them of seeking review of the Director’s decisions, under either the Environment Act or any other law. This requirement is satisfied.

9. The first, second and fourth requirements have been met. 

2	DO THE PLAINTIFFS HAVE AN ARGUABLE CASE?

10. The plaintiffs’ Order 16, Rule 3(2)(a) statement sets out seven proposed grounds of judicial review:

1 The Decisions were made when no Environmental Impact Assessment had been conducted by the Department of Environment and Conservation and no reasonable decision maker ought to have made the decisions.

2 The Decisions were made when no Environmental Impact Assessment had been required to be performed by the miner by way of notice from the Director of the Environment and the Director ought to have required Ramu Nico Management (MCC) Ltd to conduct an environmental impact assessment of 5 million tonnes of mine tailings annually into Astrolabe Bay ought to have made the decisions, and no reasonable decision maker ought to have made the decisions. [sic]

3 The Decisions were made when no and/or no proper assessment and consideration of the environmental impacts of the mine tailings disposal plan had been done by the Department of Environment and Conservation and no reasonable decision maker ought to have made the decisions.

4 The decisions were made in breach of Section 6 of the Environment Act 2000 in that the Environmental Permit allowing the mine tailing disposal was given when the requirements of Section 6(2)(d) of the Environment Act 2000 had not been complied with.

5 The decision to grant an Amended Environmental Permit to allow construction and operation of the mine tailings disposal system should be quashed as they allow an activity to proceed that is contrary to and unlawful pursuant to the Environment Act 2000. 

6 The Decisions were made contrary to the mandatory requirements of 
 Section 25(3) of the Constitution and ought to be quashed.

7 Dr Wari Iamo the Director of the Environment erred as he failed to take into account relevant considerations.

11. All of these grounds call into question directly or indirectly the exercise of discretion by the Director under Section 71 of the Environment Act, which states:

Where a permit holder makes application to amend a permit the Director shall determine whether the proposed amendment is a major amendment or a minor amendment and—

(a)	where he determines that the amendment is a major amendment—may issue a notice to undertake an environmental impact assessment in accordance with Section 50; and

(b)	in any case—having regard to the criteria set out in Section 65(3), may grant an amendment of the permit where he is satisfied of the matters set out in Section 65(1).

12. In this case it appears that the Director determined that the proposed amendment was not a major amendment and proceeded to grant the amendment under Section 71(b). That being the case he was obliged to be satisfied of the matters set out in Section 65(1), which states:

Subject to this section and Section 66, the Director may grant a permit where he is satisfied that—

(a)	the activity which is the subject of the permit will be carried out in a manner which is consistent with all relevant Environmental Policies and the Regulations; and

(b)	all reasonable steps will be taken to minimise any risk of environmental harm as a result of the activity; and

(c)	the activity will not contravene any relevant environmental obligation under any international treaty, convention or instrument to which Papua New Guinea is a party and which has been ratified by the Parliament or any law of Papua New Guinea; and

(d)	the applicant will abide by the conditions of the permit.

13. To be properly satisfied of the matters set out in Section 65(1) the Director must have regard to the criteria in Section 65(3), which states:

In determining—

(a)	whether or not to grant a permit; and

(b)	the conditions to attach to the permit,

the Director shall have regard to—

(c)	the objects of this Act; and

(d)	the matters of national importance; and

(e)	the general environmental duty; and

(f)	any relevant Environment Policy; and

(g)	any relevant environmental impact statement, assessment, report, public submission or other information in relation to the proposed activity; and

(h)	any information provided with the application; and

(i)	where relevant, the Minister's approval in principle; and

(j)	any public submission made, or views expressed at a presentation, hearing or conference; and

(k)	the suitability of the applicant to hold a permit; and

(l)	the character, resilience and beneficial values of the receiving environment; and

(m)	best practice environmental management for the activity in question; and

(n)	public interest in the proposed activities.

14. The plaintiffs have presented affidavits which tend to suggest that the Director did not consider those matters or, if he did consider them, he did not give them sufficient attention. In particicular the plaintiffs argue that the Director had in his possession a desktop review of the risks involved in the deep sea tailings placement system, which recommended that a further and detailed assessment was necessary to determine whether the risks of operation of such a system were acceptable.

15. I am satisfied that the facts alleged in the affidavits, if accepted, would provide the basis to argue that as a matter of law the Director made a decision so unreasonable that no reasonable decision maker in his position could have made it and to argue that the Director’s exercise of discretion was unlawful. I conclude that all seven grounds of review – most of which overlap – are arguable, including ground No 6 that seeks to invoke the National Goals and Directive Principles, in particular Goal No 4: Natural resources and environment (which are to a limited extent justiciable under Section 25 of the Constitution).

16. The arguable case requirement has been met. 

3	HAS THE APPLICATION FOR LEAVE BEEN MADE PROMPTLY, WITHOUT UNDUE DELAY?

17. Mr Molloy, for the State, properly pointed out that this requirement must be precisely addressed in the manner prescribed by Order 16, Rule 4 of the National Court Rules, which states:

(1)	Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant—

(a)	leave for the making of the application; or

(b)	any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(2)	In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.

(3)	Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

18. As the plaintiffs are seeking leave to apply for an order in the nature of certiorari to quash the Director’s decisions of November 2007 the "relevant period" for the purposes of this Rule is four months after "the proceeding", ie March 2008. As this application was not made until May 2010, the court is obliged to consider the matters set out in Rule 4(1). It must consider whether the granting of the relief sought (ie quashing the amended environment permit):

•	would be likely to cause substantial hardship to any person;

•	would be likely to substantially prejudice the rights of any person; or 

•	would be detrimental to good administration.

19. Having regard to the lapse of two and a half years since the amendment was granted and the steps that have been taken by the developer of the project since November 2007, I am of the opinion that quashing the permit now would be likely to cause substantial hardship to the developer (the fourth defendant in these proceedings, Ramu Nico Management (MCC) Ltd). I am not satisfied as to the other two matters, ie I am not satisfied that quashing the amended environment permit would be likely to substantially prejudice the rights of any person or would be detrimental to good administration. However, I do not have to be satisfied of all three matters. One is sufficient. 

20. This means that I have a discretion to exercise. I am not obliged to refuse leave, having formed the opinion as to substantial hardship. But nor am I obliged to grant leave. 

21. At this point it is relevant to consider the question of delay. Mrs Nonggorr, for the plaintiffs, has emphasised that the plaintiffs have only recently become aware of the material which, she argues, provides them with the facts necessary to establish their grounds of review. The plaintiffs and other local people have been kept in the dark over a number of years about the full impact of the deep sea tailings placement system. So the apparent delay ought not be used as a reason for refusing delay, Mrs Nonggorr submitted. 

22. I have earnestly considered those submissions. This is a borderline case. However, ultimately I consider that there has been a substantial delay in commencing these proceedings. I do not think it is an outrageous delay, as Mr Molloy contended. It is, however, a significant delay. I consider that the plaintiffs should have been more diligent in pursuing the issues that they now want judicially reviewed. They should perhaps have exercised their right to freedom of information under Section 51 of the Constitution, to obtain access to the documents that they now wish to use to mount their case for judicial review. The application has been too long delayed, however. 

23. The requirement that there be no undue delay has not been satisfied and in my opinion this is a sufficient and proper reason to refuse leave for judicial review. 

CONCLUSION

24. One of the five criteria for granting leave has not been satisfied so I will refuse the application for this reason: granting the relief sought by the plaintiffs would be likely to cause substantial hardship to a person and there has been undue delay in filing the application for leave.

ORDER

(1)	The application for leave to seek judicial review of decisions of the Director of Environment in November 2007 to grant an amendment to the environment permit, referred to in the originating summons filed on 7 May 2010, is refused.

(2)	The parties shall bear their own costs.

(3)	Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.

___________________________
Nonggorr William Lawyers: Lawyers for the Plaintiffs
Solicitor-General: Lawyer for the 5th Defendant