BY BOB BURTON
In an extraordinary move the Papua New Guinea government has passed legislation that prevents any government agency from taking or supporting "in any way" proceedings against BHP-Billiton "in respect of an environmental claim" over damage caused by the Ok Tedi mine.
In mid-December the Ok Tedi Mine Continuation (Ninth Supplementary) Act was tabled in parliament and rammed through in a vote later the same day. Central to the legislation will allow BHP to offload its 52% share of the mine — which is scheduled to close in 2010 — into a development trust in return for BHP being insulated from future liabilities for environmental damage.
A BHP commissioned report warned that up to 2000 square kilometres of forest could be killed by the tailings and "a total collapse of the fishery" was a possibility.
The legislation also gives effect to the Community Mine Continuation Agreement (CMCA) which negates a claim for damages by 30,000 landowners against BHP before the Supreme Court of Victoria. In 1996 BHP made an out-of-court settlement that included payment of approximately $40 million in compensation as well as the dredging of tailings from the river in an attempt to limit further damage.
The legal action was reinstated in April 2000 when two landowner leaders claimed that BHP had breached the terms of the settlement. In particular, they claimed that the provision requiring investigation of a tailings dam to prevent further tailings entering the river system had not been complied with.
However, the CMCA agreement seeks to bypass the class action by expressly exempting BHP "from all and any demands and claims arising directly or indirectly from the operation of the mine...".
Former PNG prime minister Sir Michael Somare is challenging the constitutional validity of the legislation before the PNG Supreme Court.
[Abridged from Mining Monitor, newsletter of the Mining Policy Institute. Visit <http://www.mpi.org.au>.]
From Green Left Weekly, February 13, 2002.
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