Absolute power to Govt
This was a letter to the Minister for Environment & Conservation…
The passing of the Environment Bill has not gone down well with many... NCD Governor Powes Parkop stands to tell the nation his deepest concerns on the new law... Read on
Absolute power to Govt
As a parliamentarian, a lawyer by profession and as a person who has advocated for the rights of landowners and protection of our natural environment for the best part of my professional life before entering Parliament, I write to express my objection and deepest concerns at the passing of the Environment Act amendments last Friday, May 28.
As you would have probably noticed, I was not in the Chamber when the vote was taken last Friday. I had left the Chamber to obtain and peruse a copy of the proposed Bill to appreciate it before I could cast my vote as I was not aware of your intention to move for the passing of the Bill that day and did not bring my copy. While in the process of locating a copy, Parliament voted on the bill and passed it by a majority of 73 to 10.
Having perused the proposed Bill (now law) and appreciated its content, I would have no doubt voted against the Bill had I remained in Chamber when the vote was taken.
My objection to this law is based on the following observations:
* The law effectively places almost absolute power in the Government to decide as to environmental permits, approvals, licences and the standards required of permit holders while removing rights of landowners and others to challenge such decisions either under civil law, statute and even customary law.
It also allows applicants to bypass due process and obtain from the director a certificate that upon its granting is an absolute proof of compliance of all environmental laws, process and standards. This in effect is absolute powers vested in one person and is a big concern as the law also attempts to remove the powers of the court to review the exercise of such powers.
* While this power is vested by the new law in the director, as you are aware the director is none other than the Secretary of your department and this therefore magnifies the concerns about objective exercise of almost absolute powers provided in the new law that cannot be challenged by anyone
* The removal of the rights to a cause of action under new section 69B and the right to challenge the granting of a permit, approval or licence etc over environmental use or discharge etc is of particular concerns given the fact that the majority of our people rely heavily on the natural environment, including the sea, waterways, rivers etc for their subsistence and survival.
Given the experience of Bougainville too, this is a piece of legislation that flies against our recent history that ignorance of environmental concerns can serve as a basis for major conflict.
* The powers provided to holder or a permit under s.87B (4) and s.87C (4) also make a total mockery of the impartiality or objectivity of the whole law. These provisions provide that there can not be any review of a Certificate of Necessity once granted by the director except if the permit holder makes a request for review. How can we pass a law that takes away our rights and powers while at the same time it vests powers on developers? How can we justify such a clause?
* While the amendment is specifically about the Ramu Nickel-Basimuk Bay situation and that maybe the Government’s hands were forced by the decision of the court, it is a bad legislation in that it is not restricted to the circumstances in Ramu Nickel-Basimuk Bay environmental issues.
By this law the Government has completely changed the process, powers and granting of environmental plans, permits, licences etc without undertaking a proper review of existing laws and the application of such laws.
This law therefore is not based on any policy review but more a reaction to one specific circumstance to change the goal posts completely for all projects past, present and into the future.
* The passing of the amendments flies in the face of the Government’s claims to be serious about protecting our natural environment, especially at the global level. While the Government can claim that it will use the powers sparingly or objectively, there is no guarantee that it will use such powers in such manner. In any event, in the future such powers can be used and misused, if not now.
* The use of “national interest” to pass the law is a poor or lame excuse because national interest also includes protecting our national environment as pronounced in the National Goals and Directive Principles and protecting the way of life of our people, many of whom rely on the natural environment for their survival.
This is of critical concern given that the global systems are experiencing many crises such as financial criss, food crisis, energy crisis, environmental crisis/climatic changes.
The global situation warrants that we protect our traditional means of survival more instead of putting our people’s survival at risk by adopting such regimes that can allow the Government of the day to by pass due process, scrutiny of the public and the courts to decide such critical issues.
* I do not accept the argument that since developed countries such as Canada, USA and those in Europe had done the same, we should follow suit or not be morally disturbed by such laws.
In most of these countries now, they have put in place a strict environmental regime to protect their natural environment due to the mistakes they made in the past.
In almost all of these countries now it is illegal to dump mining waste and tailings into river and water systems and in the sea. We should be learning from and seeking to avoid their mistakes instead of merely following their mistakes.
* In any case Minister, you are aware that the report by the Scottish Association of Marine Scientists has confirmed that there continues to be environmental impact being faced by the marine life and villages in Misima five years after closure of the mine there. You are also aware that CSIRO have released two reports which confirm that the disposal of waste and sediments into the sea in Lihir by Lihir gold mine is also affecting deep sea fish and marine life and the coral sea in the Lihir area so people in Basimuk Bay have legitimate reasons to be concerned about the disposal of waste or tailings into their bay.
* The amendment is a poor piece of legislation too because while it seeks to remove powers of the court to review any decisions made or reached under the new law, you should note that under Section 155 of the Constitution, the National and Supreme Court have inherent powers to review any exercise of judicial, quasi-judicial and administrative powers such as that now vested with the director under the new law. Such powers can never be removed by Parliament because it is bestowed on the National and Supreme Courts by the Constitution. As seen in the case of the Organic Law on National and Provincial Election where the Supreme Court still allows review of National Court decisions to take place even through the said Organic Law states that the National Court decision in cases of election petitions is final and not subject to appeal or review.
Far from solving the matter once and for all as you or the Government intended, this legislation will only allow more litigation in challenging the legality and constitutionality of the said law. It could also see the National and Supreme Court allowing its inherent powers under s.155 of the Constitution even more over decisions made by the director. So instead of the new law settling all litigations, it could invite more litigation.
* Far from resolving the issues in respect of Ramu nickel and Basimuk Bay, this legislation will probably prolong the dispute and put in jeopardy the future of the mine because litigation would now probably move to the Supreme Court to challenge the legality of this law while the original issues before the parties remain unresolved and the mine will remain closed or in suspense. Instead of saving the Ramu nickel project, this legislation will probably kill the project
Given the above therefore I propose that you delay the implementation of the law with a view to repeal it or amending it so that the powers of the director are not as absolute as in the present form. You can recommit the Bill to Parliament under s.130 of the Constitution to make alterations or amendments so that a fair law is passed rather than the current one. Alternatively, that you can have the current law repealed and pass a law specific to Ramu nickel-Basimuk Bay situation and not changing the laws entirely as you have done by this law.
In respect of the issue over Ramu Nickel-Basimuk Bay situation, while I am not very familiar with the legal proceedings to date, I believe the State and the developer company have been let down.
Knowing the laws on granting and maintenance of injunction and stay orders, I cannot understand how an injunction or stay order could be granted and maintained over a project that involves million of kina in investment and that the continuation of an injunction or stay orders would incurr huge cost and loss for the State and the developer company.
I am also advised that the judge who presided over the case, wanted the trial of the substantive case heard in the beginning of May and had the trial proceeded, the issues would have been resolved.
In any case, I believe the Government should pursue a different approach to resolving that dispute than resorting to such tactics as completely changing the goal posts and rules for all.
There are many ways in which tailings could be disposed of or stored so that they are safe and not harmful to the environment rather than dumping them in the sea.
I look forward to your response and further dialogue on the same. I advise however that due to the public interest in this matter, I will be releasing copies of this letter to the media.
Powers Parkop
NCD Governor
As you would have probably noticed, I was not in the Chamber when the vote was taken last Friday. I had left the Chamber to obtain and peruse a copy of the proposed Bill to appreciate it before I could cast my vote as I was not aware of your intention to move for the passing of the Bill that day and did not bring my copy. While in the process of locating a copy, Parliament voted on the bill and passed it by a majority of 73 to 10.
Having perused the proposed Bill (now law) and appreciated its content, I would have no doubt voted against the Bill had I remained in Chamber when the vote was taken.
My objection to this law is based on the following observations:
* The law effectively places almost absolute power in the Government to decide as to environmental permits, approvals, licences and the standards required of permit holders while removing rights of landowners and others to challenge such decisions either under civil law, statute and even customary law.
It also allows applicants to bypass due process and obtain from the director a certificate that upon its granting is an absolute proof of compliance of all environmental laws, process and standards. This in effect is absolute powers vested in one person and is a big concern as the law also attempts to remove the powers of the court to review the exercise of such powers.
* While this power is vested by the new law in the director, as you are aware the director is none other than the Secretary of your department and this therefore magnifies the concerns about objective exercise of almost absolute powers provided in the new law that cannot be challenged by anyone
* The removal of the rights to a cause of action under new section 69B and the right to challenge the granting of a permit, approval or licence etc over environmental use or discharge etc is of particular concerns given the fact that the majority of our people rely heavily on the natural environment, including the sea, waterways, rivers etc for their subsistence and survival.
Given the experience of Bougainville too, this is a piece of legislation that flies against our recent history that ignorance of environmental concerns can serve as a basis for major conflict.
* The powers provided to holder or a permit under s.87B (4) and s.87C (4) also make a total mockery of the impartiality or objectivity of the whole law. These provisions provide that there can not be any review of a Certificate of Necessity once granted by the director except if the permit holder makes a request for review. How can we pass a law that takes away our rights and powers while at the same time it vests powers on developers? How can we justify such a clause?
* While the amendment is specifically about the Ramu Nickel-Basimuk Bay situation and that maybe the Government’s hands were forced by the decision of the court, it is a bad legislation in that it is not restricted to the circumstances in Ramu Nickel-Basimuk Bay environmental issues.
By this law the Government has completely changed the process, powers and granting of environmental plans, permits, licences etc without undertaking a proper review of existing laws and the application of such laws.
This law therefore is not based on any policy review but more a reaction to one specific circumstance to change the goal posts completely for all projects past, present and into the future.
* The passing of the amendments flies in the face of the Government’s claims to be serious about protecting our natural environment, especially at the global level. While the Government can claim that it will use the powers sparingly or objectively, there is no guarantee that it will use such powers in such manner. In any event, in the future such powers can be used and misused, if not now.
* The use of “national interest” to pass the law is a poor or lame excuse because national interest also includes protecting our national environment as pronounced in the National Goals and Directive Principles and protecting the way of life of our people, many of whom rely on the natural environment for their survival.
This is of critical concern given that the global systems are experiencing many crises such as financial criss, food crisis, energy crisis, environmental crisis/climatic changes.
The global situation warrants that we protect our traditional means of survival more instead of putting our people’s survival at risk by adopting such regimes that can allow the Government of the day to by pass due process, scrutiny of the public and the courts to decide such critical issues.
* I do not accept the argument that since developed countries such as Canada, USA and those in Europe had done the same, we should follow suit or not be morally disturbed by such laws.
In most of these countries now, they have put in place a strict environmental regime to protect their natural environment due to the mistakes they made in the past.
In almost all of these countries now it is illegal to dump mining waste and tailings into river and water systems and in the sea. We should be learning from and seeking to avoid their mistakes instead of merely following their mistakes.
* In any case Minister, you are aware that the report by the Scottish Association of Marine Scientists has confirmed that there continues to be environmental impact being faced by the marine life and villages in Misima five years after closure of the mine there. You are also aware that CSIRO have released two reports which confirm that the disposal of waste and sediments into the sea in Lihir by Lihir gold mine is also affecting deep sea fish and marine life and the coral sea in the Lihir area so people in Basimuk Bay have legitimate reasons to be concerned about the disposal of waste or tailings into their bay.
* The amendment is a poor piece of legislation too because while it seeks to remove powers of the court to review any decisions made or reached under the new law, you should note that under Section 155 of the Constitution, the National and Supreme Court have inherent powers to review any exercise of judicial, quasi-judicial and administrative powers such as that now vested with the director under the new law. Such powers can never be removed by Parliament because it is bestowed on the National and Supreme Courts by the Constitution. As seen in the case of the Organic Law on National and Provincial Election where the Supreme Court still allows review of National Court decisions to take place even through the said Organic Law states that the National Court decision in cases of election petitions is final and not subject to appeal or review.
Far from solving the matter once and for all as you or the Government intended, this legislation will only allow more litigation in challenging the legality and constitutionality of the said law. It could also see the National and Supreme Court allowing its inherent powers under s.155 of the Constitution even more over decisions made by the director. So instead of the new law settling all litigations, it could invite more litigation.
* Far from resolving the issues in respect of Ramu nickel and Basimuk Bay, this legislation will probably prolong the dispute and put in jeopardy the future of the mine because litigation would now probably move to the Supreme Court to challenge the legality of this law while the original issues before the parties remain unresolved and the mine will remain closed or in suspense. Instead of saving the Ramu nickel project, this legislation will probably kill the project
Given the above therefore I propose that you delay the implementation of the law with a view to repeal it or amending it so that the powers of the director are not as absolute as in the present form. You can recommit the Bill to Parliament under s.130 of the Constitution to make alterations or amendments so that a fair law is passed rather than the current one. Alternatively, that you can have the current law repealed and pass a law specific to Ramu nickel-Basimuk Bay situation and not changing the laws entirely as you have done by this law.
In respect of the issue over Ramu Nickel-Basimuk Bay situation, while I am not very familiar with the legal proceedings to date, I believe the State and the developer company have been let down.
Knowing the laws on granting and maintenance of injunction and stay orders, I cannot understand how an injunction or stay order could be granted and maintained over a project that involves million of kina in investment and that the continuation of an injunction or stay orders would incurr huge cost and loss for the State and the developer company.
I am also advised that the judge who presided over the case, wanted the trial of the substantive case heard in the beginning of May and had the trial proceeded, the issues would have been resolved.
In any case, I believe the Government should pursue a different approach to resolving that dispute than resorting to such tactics as completely changing the goal posts and rules for all.
There are many ways in which tailings could be disposed of or stored so that they are safe and not harmful to the environment rather than dumping them in the sea.
I look forward to your response and further dialogue on the same. I advise however that due to the public interest in this matter, I will be releasing copies of this letter to the media.
Powers Parkop
NCD Governor
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