Law creates problem for the future
National Editorial
PARLIAMENT passed an important law pertaining to the environment last week.
The amendment to the Environment Act effectively bars all third party lawsuits of the kind presently being pursued against the Ramu nickel cobalt mine. It will affect all future projects, the PNG liquefied natural gas (LNG) project among them. The national government action is understandable enough. It alone approves resource projects. Such approvals are given after due process, or should be.
Due process involves requirements where the developer satisfies various state instrumentalities relating to labour and immigration laws and regulations, taxation and finance laws and regulations, company registry requirements, attorney-general, the Organic Law on provincial and local level governments and, of course, environment and conservation among others.
Each one of these government instrumentalities have strong laws which operate quite independently; the flouting of which could land a developer in serious trouble.
It is presumed, therefore, that if a developer proceeds to that stage where it is granted a development licence, it is seen to have satisfied all the requirements of all the laws of PNG in so far as is applicable and relevant at that point in time. Provisions are made for regular reviews of resource development contracts so, should any legitimate matter arise in future, it can be addressed at such reviews. So when government sees a company, such as the operator of the Ramu nickel mine stop construction work every few months by order of the court by an action which is seen largely driven by non-governmental organisations, it sees this as the work of interest groups which have no concern for the welfare of PNG.
And, so, the government uses its powers – through Parliament – to plug that hole. That is as it should be – in an ideal situation. An ideal situation would be if due process is followed to the letter. An ideal situation would be if all processes were checked against the over-riding guiding legal principle – the provisions of the Constitution. For, it is the Constitution which states at the preamble that one of PNG’s national goals is to protect our environment. And, it must be checked against that other universal guiding principle – whether the government has ensured that the human right, both now and in future, to the benefits of an environment which has not been degraded by resource harvesting is secure.
That the law was passed by a vote of 73-10 tells us that three quarters of our elected representatives are sure that all is well. We caution that history tells us, both here and elsewhere, that the environment is never totally protected in any resource development.
The Ministry of Environment and Conservation should only be concerned with changing the law to strengthen it, not to weaken it. In this instance, the act has been significantly weakened in that no other party with an interest in conservation and preservation can now speak out or take action where it sees a certain environment in danger of being destroyed by resource developments. Environment and Conservation Minister Benny Allan can well argue that concerned parties, which include the government, can always take up issue if it sees any developer stepping out of bounds where the environment is concerned.
That is all very well but, when the government is moving ahead at full steam with getting resource developments off the ground, it seems, with an “at all costs” mentality, we doubt that there is going to be too much emphasis placed on the environment. That is the danger. When the government is pro-resource development, the environment has no protector. The other concerned party – the landowning group – is quite easy to please if money is put in the right hands and in the right places. In the end, it is always dangerous to tamper with the legal framework just to get around one problem today. Unwittingly, we might be creating a mountain of a problem for the future.
The amendment to the Environment Act effectively bars all third party lawsuits of the kind presently being pursued against the Ramu nickel cobalt mine. It will affect all future projects, the PNG liquefied natural gas (LNG) project among them. The national government action is understandable enough. It alone approves resource projects. Such approvals are given after due process, or should be.
Due process involves requirements where the developer satisfies various state instrumentalities relating to labour and immigration laws and regulations, taxation and finance laws and regulations, company registry requirements, attorney-general, the Organic Law on provincial and local level governments and, of course, environment and conservation among others.
Each one of these government instrumentalities have strong laws which operate quite independently; the flouting of which could land a developer in serious trouble.
It is presumed, therefore, that if a developer proceeds to that stage where it is granted a development licence, it is seen to have satisfied all the requirements of all the laws of PNG in so far as is applicable and relevant at that point in time. Provisions are made for regular reviews of resource development contracts so, should any legitimate matter arise in future, it can be addressed at such reviews. So when government sees a company, such as the operator of the Ramu nickel mine stop construction work every few months by order of the court by an action which is seen largely driven by non-governmental organisations, it sees this as the work of interest groups which have no concern for the welfare of PNG.
And, so, the government uses its powers – through Parliament – to plug that hole. That is as it should be – in an ideal situation. An ideal situation would be if due process is followed to the letter. An ideal situation would be if all processes were checked against the over-riding guiding legal principle – the provisions of the Constitution. For, it is the Constitution which states at the preamble that one of PNG’s national goals is to protect our environment. And, it must be checked against that other universal guiding principle – whether the government has ensured that the human right, both now and in future, to the benefits of an environment which has not been degraded by resource harvesting is secure.
That the law was passed by a vote of 73-10 tells us that three quarters of our elected representatives are sure that all is well. We caution that history tells us, both here and elsewhere, that the environment is never totally protected in any resource development.
The Ministry of Environment and Conservation should only be concerned with changing the law to strengthen it, not to weaken it. In this instance, the act has been significantly weakened in that no other party with an interest in conservation and preservation can now speak out or take action where it sees a certain environment in danger of being destroyed by resource developments. Environment and Conservation Minister Benny Allan can well argue that concerned parties, which include the government, can always take up issue if it sees any developer stepping out of bounds where the environment is concerned.
That is all very well but, when the government is moving ahead at full steam with getting resource developments off the ground, it seems, with an “at all costs” mentality, we doubt that there is going to be too much emphasis placed on the environment. That is the danger. When the government is pro-resource development, the environment has no protector. The other concerned party – the landowning group – is quite easy to please if money is put in the right hands and in the right places. In the end, it is always dangerous to tamper with the legal framework just to get around one problem today. Unwittingly, we might be creating a mountain of a problem for the future.
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