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Legal action for the environment and Environmental Education: the case of the Fly river

2002, by David J. WILLIAMS, Kuntala LAHIRI-DUTT

While dealing with EE, we shall also have to consider the laws related to the environment. In most countries, a set of legal net or legal framework already exists to protect the ordinary citizen and provide her/him with a cleaner environment. These laws range from ordinary health and safety laws to elaborate laws preventing the individual person’s or factory/business’ economic activity from having a disruptive/degrading effect on other people’s well-being. In some countries, the ‘right to breathe’ clean air is accepted constitutionally as one of the fundamental rights. In the United Nations Charter of Human Rights, the rights of an individual for food and shelter indirectly accepts the provision of a clean and healthy environment as a human right for citizens.

However, in some countries, such environmental laws do not exist yet. In other cases, environmental laws do exist in name, but in reality they are hardly ever put into practice.

Laws with regard to the environment have a two-way relevance to Environmental Education.

First, is the enforcement of these laws where present, and enactment where such laws are not in existence. The environmental educators have the responsibility of handling the issues arising out of the need for economic development and environmental protection. In many democratic countries, the implementation or enforcement of such laws has been initiated with varying degrees of success by the environmental educators and NGOs. Educators can act through the media, and the media itself can be a major actor in such cases.
Finally, environmental educators, while building an aware and responsible citizenry, must look for loop-holes and gaps in the existing legal framework and try to create popular opinion for review of such laws from time to time to make them more suitable to current situations.

Second, use of these laws by an aware citizenry to achieve democratically the environmental objectives. Public Interest Litigation is one such instrument for legal action for the environment. It is the task of an aware citizen group to build up strong lobbies and pressure groups to influence public opinion, and eventually bring about political actions.

The case of the Fly river in Papua New Guinea (PNG) provides an example of legal action on environment and how it can educate in citizenry as well as how aware citizens can take recourse to law for protecting their interest.

Major ore deposits were discovered in the 1970’s in Papua New Guinea (PNG). This country, barely out of the stone-age in many of its regions, wished to ‘develop’ through exploitation of its resources. In 1980, the PNG government allowed a consortium led by an Australian mining company, BHP, to exploit a major copper/gold deposit in difficult terrain at Ok Tedi. The project was described by the then PNG Prime Minister as ‘a pot of gold at the end of the rainbow’. Gold production began in 1984 and copper in 1987. The copper concentrate was conveyed in slurry form via a 180 km pipeline for further processing on the banks of the Fly River before being carried by barge 850 km to the coast.

The difficulty in mining in remote, seismically active mountainous terrain in one of the wettest places on earth was seriously underestimated with major cost blow-outs. Plans for a tailings (waste left behind after concentrating the ore) dam, stipulated under the agreement, were abandoned after a major landslide wiped out the initial construction site. Some political wheeling and dealing allowed the dumping of large quantities of tailings into the Ok Tedi river and then the Fly. It is thought that over 50,000 tones per day were disposed of in this way for several years. The tailings contained copper (highly poisonous) and, spasmodically, high levels of cyanide (used to treat the ore), one being a disastrous loss of a container of pure cyanide.

The Fly River rose 5 – 10 m due to the tailings causing the river to flood over productive land covering it with gray ooze.

The mining company denied any major damage and said that cyanide levels were within agreed limits – true but these had been set at10 times the normally acceptable environmental levels and the monitoring site was 100 km downstream of the discharge point!

In 1992 the affected villagers laid their complaints at the Rio summit and also approached an Australian law firm, Slater and Gordon, to initiate a ‘class action’ on their behalf. BHP denied any wrong-doing and emphasized the economic benefits to those involved. In 1994, the case, asking for $A2 billion damages and $2 billion in compensation, was heard before the Supreme Court in the state of Victoria, Australia. It caused great embarrassment to BHP who eventually settled out of court for $150 million compensation, an undertaking to rehabilitate affected land and pay the law firm’s costs ( $A8 million). Also the PNG government, who was 10% of the consortium, handed over its share to a trust.

This is a prominent example of how access to legal redress (through, if necessary, reform of the legal process to allow poor people a chance of having their voice heard in court), can bring gross breaches of environmental behavior to book. In this case a large mining company, who operates under tough environmental legislation in its home country, and a complicit government were forced by an aware citizenry to compensate for environmental damages. Such examples show that legal action can indeed be a major instrument of environmental action in a democratic framework.