The National – Tuesday, June 21, 2011
By JAYNE SAFIHAO
THE highly entertaining courtroom drama between Tiffany Nonggorr for the plaintiffs and Queen’s Counsel Charles Scherri for the Chinese mining developer, Ramu NiCo, in the deep sea tailings placement (DSTP) saga will have its finale tomorrow when Judge David Cannings make his ruling on whether or not there will be a final injunction.
The substantive issue being raised by 1,081 individuals from Basamuk and the coastline villages as far as Karkar is whether the Department of Environment and Conservation approved permit (for the tailings disposal) allows for the environmental harm that will be caused them.
The current plaintiffs are Louis Medaing and the Medaing families of the Tong clan; the Sawang families of the Ongeg clan and another 272 people; Terry Kunning and 152 others; Martin D Yagau, Paul Kamang and 17 others; Bill Koi, Tamlong Tab and 191 others; Kamang Namur and 20 others; Simon Sil, James Sungai and 323 others; and Caspar Angua on behalf of 23 others.
Issues raised during the 10-month long case have been whether a proper prior Environmental Impact Assessment had been done before a permit was issued; that nil monitoring reports with very little scientific report have been submitted by the Department of Environment and Conservation (DEC); that sum baseline studies, study of ocean currents, marine species and corals, sedimentation and upwelling and the turbidity and toxic level of the tailings were not done; no erosion control was in place before construction; low rate of sedimentation in the bay; the lack of information on how smothering of marine life within the 150 square kilometre of ocean floor will have on the marine ecology; that PNG will encroach the UN Convention on Biological Diversity of which it is a party to; the levels of toxins in waste and the inadequate contingency plan in the event of any disasters.
The Scottish Association of Marine Scientist (SAMS) headed by Dr Tracy Schimmield, was engaged by the government to do an independent report.
Schimmield swore on affidavit relied upon by state parties in the proceedings that the government funded report amongst others was not designed to determine whether upwellings were occurring and, therefore, recommended that a further 12-month study period for studies to be done.
Whether this study will commence will hinge on the decision tomorrow.
Simple village people and some of the world’s renowned scientist from various fields took the stand arguing with equally qualified persons from the defence.
Scientist that took the stand were Dr Schimmield, an oceanographer and the lead scientist retained on contract; Dr John Luick, an oceanographer; Dr Phil Shearman, an ecologist responsible for the Lutheran church report; Gavin Mudd, a mine waste specialist (environment engineer), who argued that on-land tailings disposal be best for monitoring purposes; Philip Tower, a marine chemist; Stuart Jones, a specialist in environment and monitoring purposes with wide experience in coastal morphology; and Ian Hargraves, marine scientist and oceanographer.
The defence team made up of Steven Davis for the state; Scherri, Ian Malloy and Goiye Gileng for Ramu NiCo submitted to the court that Ramu NiCo did have statutory approvals for construction and operation of the DSTP system and, therefore, the DSTP activity could not be unlawful, that evidence shows that there is no real risk of damage, that the relief for injunction is pre-emptive and that it will cause substantial injustice if a permanent injunction is granted at this stage of the project when all major components of the project is substantially completed at a cost of about US$1.3 billion.
Davis submitted that evidence did not support the plaintiff’s allegations of harm and, therefore, there should be no cause of action.
Whatever the decision, Cannings will be deliberating on the bigger picture of whether the tailings waste dropped at a depth of 150m, 400m from shore down a gradual slope through canyons and eventually coming to rest at a depth of 850m-1,200m, covering 150sqkm of sea floor will be detrimental to lives of humans and marine life.
On the one side are the plaintiffs, simple villagers who feel they were frustrated at every turn by government entities meant to regulate the system for their benefit.
Their registered land disputes have been delayed for the last 11 years with the special Lands Titles Commission yet to convene.
The only place these plaintiffs have turned to is the courts to be heard and to protect them, their rights, their families and their future.
On the other side is a multi-million Chinese investment which has received all the statutory approvals required for it to operate.
Billions of kina have been spent on the project and a stoppage now will have major repercussions generally on the country as an investment destination and specifically affect a multi-billion project that has been supported by Prime Minister Sir Michael Somare.
Whichever way Cannings decides, the words of counsel for the plaintiffs, Nonggorr, rings true: “This has been a hard case.”