N11610
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS  431 OF 2024

BETWEEN:
SASHA PAGLAU ON HER BEHALF AND AS REPRESENTATIVE OF 15 FAMILIES OF THE TIRANOFI CLAN OF KAINANTU, EASTERN HIGHLANDS PROVINCE
Plaintiffs

AND:
METALLURGICAL CORPORATION OF CHINA LIMITED
First Defendant

AND:
JURADAYA JV PHOENIX LIMITED
Second Defendant

AND:
168 ENTERPRISE LIMITED
Third Defendant

WAIGANI: KANDAKASI DCJ
13, 25 NOVEMBER 2025

ENVIRONMENTAL LAW – Alleged environmental harm and pollution– confirmation of alleged harm and damage by Conservation and Environment Protection Authority – No appearance and contest by the defendants despite being served and aware – Relevant principles of law and the provisions of the Environment Act 2000 considered – Protection of the environment is priority - Cleanup and restoration orders issued  - warning that injunctive orders would be issued against the defendants unless they turn up on next return date and show cause as to why that should not happen.

Facts

The Defendants carried out roadworks on the Highlands Highway pursuant to a contract with the Independent State of Papua New Guinea. The First Defendant was the main contractor which subcontracted the works to the Second and Third Defendants. The Defendants based their operations on land near the plaintiffs’ village through a lease agreement with the landowners. The plaintiffs alleged the Defendants improperly disposed of hazardous waste, including septic/sewage, oil, and workshop grease, into a nearby creek, which was a vital water source for the Plaintiffs. This disposal practice involved filling forty-four (44) gallon drums with waste and placing them near the Plaintiffs’ village, leading to contamination and health hazards for the community. Further, the continuous operation of crusher machines by the Second and Third Defendants resulted in relentless noise pollution, disrupting the lives of residents. After completing their operations, the Defendants moved to another part of the same highway and were allegedly carrying on the same kind of environmental harm and damage. Pursuant to a Court order, the Conservation and Protection Authority (CEPA) investigated and provided a report. The report confirmed the presence of hazardous material and substances including human waste, automative fluids, Oil (hydraulic fluid), and general workshop refuse openly discarded or dumped within the site. It also reported evidence of spilling over with visible oil seen, and noticeable odours emanating from a nearby creek indicating creek contamination. The report also reported, given the site’s proximity and connection with the community parameter, residents are potentially exposed to health, environmental, and livelihood risks.  The First Defendant was granted an Environmental Permit (EP) but was not clear if the other Defendants were covered by that and in any case if the operations and the leaving of the hazardous substances and material were within the terms of the EP.

Held:

1.	Applying the well settled environmental principles of law, namely:

•	each state, public or private entity, and individual have an obligation to protect nature;
•	the right of each human and other living being to the conservation, protection, and restoration of the health and integrity of ecosystems; and the inherent right of nature to exist, thrive, and evolve;
•	the right of each human, present and future, to a safe, clean, healthy, and sustainable environment;
•	the duty to take legal and other measures to protect and restore ecosystem integrity and to sustain and enhance the resilience of social-ecological systems; and
•	the principle of in dubio pro natura (i.e., in cases of doubt, all matters before courts, administrative agencies, and other decision makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment),
there was a need for immediate clean-up and restoration orders for the protection of the environment with the biodiversity and ecosystems within the area including people living there. 
2.	In the absence of any step taken in terms of a clean-up order or any other measures under the Environment Act 2000 by CEPA, the Court has the powers under ss155(4) and 57 of the Constitution, to make appropriate clean-up and restoration orders as well as orders aimed at preventing further harm and damage and it made orders aimed at achieving those objectives.
3.	Applying the “polluter pays principle” the Defendants as the polluters were ordered to meet the costs related to the clean-up and restoration orders, including of CEPA’s costs of supervision and ensuring the clean-up and restoration orders were complied with and for CEPA to provide quarterly reports. 

Cases cited
Fishermen and Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37 (27 November 2017)
Hon. Ginson Saonu & Or v. Wera Mori & Ors (2021) N9170
Mayur Renewables Ltd v Mirisim & Ors (2024) N10649
Susupie v. Tambua (2025) N11258

Counsel
Ms. K. Henson for the plaintiffs
No Appearance for the defendants

INTERLOCUTORY DECISION

1.	KANDAKASI DCJ: The Plaintiff’s claim environmental harm and damage caused by the Defendants. To assist the parties to have this matter settled by their direct negotiations or failing that by mediation, the Court had earlier ordered the Conservation and Environment Protection Authority (CEPA) to investigate and provide a report to the parties and the Court.  That report is now before the Court. It confirms the Plaintiffs’ allegations and reports hazardous substances, waste and other harmful material are still on the relevant site.  

Issue for determination

2.	Pending a hearing and determination of the substantive matter, an issue has arisen as to whether a Clean-up order should be made against the Defendants to prevent further harm and damage from occurring. 

3.	Despite being made aware of the return date of 12 November 2025, the Defendants failed to turn up. After having heard the learned Counsel briefly for the Defendants I adjourned the matter to next return on 13 November 2025.  Despite the Defendants being informed of the adjourned, they continued to fail to appear.   I thus heard the Plaintiffs ex parte the Defendants and adjourned to consider the evidence, submissions of Counsel, the relevant law on point and come to a decision   This is now the Court’s decision.

The relevant facts

4.	The relevant facts for the purpose of this decision are straightforward.  The Plaintiffs are claiming environmental harm and damage done by the Defendants arising out of operating construction related activity on their land known as Tiungak Village (the land) along the Eastern Highlands portion of the Highlands Highway, two kilometres west of Kainantu, Eastern Highlands Province.  

5.	The Defendants are involved in the Sustainable Highlands Highway Investment Program (SHHIP).  They were permitted onto the land through a lease agreement between them and the landowners to enter and conduct their road construction related laydown activities. The SHHIP programme entails construction and rehabilitation of 71 bridges and incorporation of road safety features and logistics services for agriculture along the Highlands Highway. It covers the distance from Nadzap Airport Junction (Nadzap) in the Morobe Province to the Kagamuga Airport Junction in the Western Highlands Province. The program is jointly funded by the Asian Development Bank (ADB) and the Independent State of Papua New Guinea. 

6.	The first phase of the SHHIP is categorised as Civil Works 1 (CW1). It covers 210 kilometres between Nadzap to Henganofi Station, Eastern Highlands Province. The First Defendant was awarded the contract for this part of the program for a duration of 60 months. The Second Defendant then subcontracted the Second and Third Defendants to carry out the works under CW1. 

7.	The Second Defendant commenced operations from 2019 to 2021. The Third Defendant commenced operations toward the end of 2022 and as at the time of filing of the writ on 17 October 2024, those Defendants were carrying out the works.  Both these Defendants used the land for the purposes of crushing and storage of sand aggregate materials, bitumen-asphalt preparation, machinery service and maintenance workshop, site office and accommodation for labourers and the employees.

8.	In their statement of claim, the Plaintiffs alleged relevantly at paragraphs 16 – 23 environmental and health violations committed by the Second and Third Defendants, who improperly disposed of hazardous substances and waste, including septic/sewage, oil, and workshop grease, into Izuno Creek, a vital water source for the Plaintiffs. This disposal practice involved filling forty-four (44) gallon drums with waste and placing them near the Plaintiffs’ village, leading to contamination and health hazards for the community. Further, the continuous operation of crusher machines by both defendants resulted in relentless noise pollution, disrupting the lives of local residents.

9.	Furthermore, the First Defendant failed to comply or uphold environmental management and safety standards and neglected to monitor or enforce compliance among its subcontractors. Over 5 years, the First Defendant allowed waste disposal practices that violated safety protocols, including subcontracting to an unregistered company, Soar Limited, which engaged in similar illegal disposal methods. The overall negligence from the First Defendant has exacerbated the adverse effects on the community, leading to significant environmental degradation and health risks for the local population.

10.	Additionally, the Plaintiffs allege that the First Defendant generally failed in his duty to ensure itself and that of its subcontractors operated in accordance with the environmental laws and principles. That included a failure to develop policies to guide itself and its subcontractors as to how itself and its subcontractors deal with the environment to ensure its operations come within the confines of the law, to ensure no harm or damage was done or is minimized and kept within acceptable limits.

11.	By a detailed frontloading set of timetabling orders made on the 12 November 2024, the Court ordered the parties to have the matter settled by their direct negotiations and failing that, by mediation and should they fail there also, then by litigation. Pursuant to those orders, parties were to file and serve affidavits of all the evidence they relied upon, along with the taking of other steps. By term four of those orders, the managing director of CEPA Mr. Jude Tukuliya was directed to carry out an investigation into the alleged environmental harm and damage and provide a report to the Court with copies provided to the parties by 20 December 2024. Then in term 5 of the orders, the Court ordered the parties to enter into settlement negotiations based on any report CEPA provides and have this matter settled unless an issue of the type under Order 2, r 2 (3)(b) of the ADR Rules 2022 is presented.

12.	When the matter returned before the Court on 17 February 2025 and thereafter on 04 August 2025, the order for CEPA to investigate and report was not yet complied with.  Those orders were thus extended for full compliance with the matter further adjourned to return in Waigani before me on 28 November 2025, thinking I was not returning to Goroka before than, but I did return and was in Goroka from 11 – 14 November 2025. Following notice of my circuiting back to Goroka on those dates, the parties were notified of the same, and this matter was listed before me on 12 November 2025 with notice to all parties. Counsel for the Plaintiffs have also informed the Defendants. Despite the notices, only the Plaintiffs appeared through their learned Counsel Ms. Henson. 

13.	Counsel drew the Court’s attention to an Affidavit filed on 11 November 2025, in which, she alludes to CEPA having provided a report in September 2025, which is annexure “D” to that affidavit.  Going by the executive summary and first page of the report, the report confirms environmental harm and damage as alleged by the Plaintiffs having occurred.  Under the heading “Key findings” the report states:

•	“Open dumping of hazardous and general waste: Observations revealed human waste, automative fluids, Oil (hydraulic fluid), and general workshop refuse openly discarded or dumped within the site.

•	Site contamination: Evidence of spill over was apparent with visible oil seen, and noticeable odours emanating from a nearby creek indicating creek contamination. 

•	Community exposure risks: Given the site’s proximity and connection with the community parameter, residents are potentially exposed to health, environmental, and livelihood risks.” 

14.	The report then states under the heading “Implications”. 

“These findings clearly demonstrate improper waste management practises that have led to the off-site environmental contamination and pose risks to the health and well-being of adjacent communities.” 

15.	Learned Counsel for the Plaintiffs also informed the Court that, an Environmental Permit (EP) was issued to the First Defendant but was not clear if it was transferrable to the Second and Third Defendants who carried out the works and did the harm and damages alleged.  The report from CEPA does not make any reference to the EP and whether the Defendants have kept within the terms and conditions of that permit. She then referred to terms 14 – 18.  Omitting the headings, these terms read as follows:

“14.	The Permit [Holder] shall construct septic tanks with soak-away trenches for treatment and disposal of domestic wastewater at the work site.

15.	The Permit Holder shall construct sediment pond (s) more than 200 metres from the nearest surface water for discharge from the premises.

16. The Permit Holder shall undertake regular checks and maintenance of gravel wastewater treatment and management facilities (Condition 14 and 15) to maintain their treatment and management efficiency.

17. The Permit Holder shall submit a Waste Management Plan with the revised EMP [Environment Management Plan] referred to in condition 9 for the work to the Director for approval within three (3) months from the date of commencement of the permit.

18. The Permit Holder shall incorporate and implement the waste minimalization strategy (reduce, reuse, recycle, treatment, disposal) in its Waste Management Plan (refer to in condition 17).”

16.	Learned Counsel for the Plaintiffs further informed the Court that, the operations and the environmental harm and damage are now not continuing, as the construction works shifted to another location along the same Highlands Highway. As far as the Plaintiffs know, the Defendants appear to continue to carry out the same kind of activities as against the environment which would constitute possibly breaches of their EP.  Counsel also informed the Court that, the harm and damage done to the environment as described in their pleadings, remains and there is an urgent need for a Clean-up.

17.	Having seen the report, the Court adjourned the matter to return 13 November 2025 and directed the Plaintiffs to serve by whatever prompt mode of communication they might have, be it Facebook, email, WhatsApp, or personal delivery to the Defendants, a copy of the report and the orders made on 11 November 2025. In paragraph 3 and 4 of the orders, the Court ordered:

“3.	The court will consider making interim restraining orders in the interest of protecting the environment or nature based on the key findings of the office of Conservation and Protection Authority (CEPA) which is in the Court file.
 
4. 	If the defendants wish to be heard on the matter before the Court they shall appear in Court to address the Court.”
 
18.	Learned Counsel for the Plaintiffs informed the Court, that she notified the Defendants of those orders. Despite notice being given to them of the matter returning on 13 November 2025, there was still no appearance for or by the Defendants.  They have also not filed any affidavit evidence in their defence of the claim or explaining their nonappearance. In the circumstances, the Court decided to proceed ex parte the Defendants.

19.	 In the light of the fact that the Defendants have closed operations on the land, it will be inappropriate to make any interim restraining orders against their causing any further harm or damage to the land and environment, the subject of this proceeding.  However, given that the harm and damage they have done is remaining, it will be necessary to make orders for the Defendants to Clean-up the harm and damages. 

Relevant Law

20.	In a couple of my decisions, such as the one in Mayur Renewables Ltd v Mirisim & Ors (2024) N10649, I emphasised the fact that Papua New Guinea is a signatory to various international conventions and agreements concerning the environment especially to protect what we have left in the light of climate change and its impact and the triple planetary crises facing humanity today.  I pointed to that most of these body of international law were domesticated into PNG by the Environment Act 2000 (EA2000).  At [35] to [39] of the judgement I said:
“35.	Given the serious existential risk and challenges posed by the Climate Change Emergency caused mainly by human activity including, deforestation, both the executive and judicial arms of government in PNG have been and are continuing to address the challenges and have taken several steps. Through the executive arm of government, PNG has at the highest, signed up to several important international conventions, agreements and or protocols dealing with the environment, its sound and sustainable use, management, and preservation for future generations.
36.	The key international treaties or conventions include the United Nations Framework Convention on Climate Change (UNFCCC), with 197 countries signing up to it, including PNG, as of October 2020. That convention entered into force on 21st March 1994. The convention is a framework treaty for intergovernmental efforts to address Climate Change. It aims to curb the average global temperature increase and its impacts which, by the time the treaty was adopted, were already inevitable.
37.	The other key convention is the Paris Agreement on Climate Change reached at the UN Climate Change Conference (COP21) in Paris, France, on 12th December 2015. That agreement came within the UNFCCC framework. It was negotiated, adopted by consensus and went into force on 4th November 2016. As of October 2020, it had 195 signatories and 189 parties. That includes PNG and the European Union. That convention is:
‘... the pinnacle of international law on climate change. It orchestrates global climate action over the coming decades. Countries agreed to limit global warming to well below 2ºC above preindustrial times, closer to 1.5ºC.’ 
38.	Some of the international treaty or convention obligations have now been domesticated in several legislations in PNG. The principle one is the Environment Act 2000 as amended. As I noted in Ginson Saonu v. Wera Mori & Ors (2021) N9170:
‘... these international developments influenced the legislature in PNG to enact the EA2000. It follows therefore that, as a sensible and responsible global citizen, PNG through the Minister and the MD of CEPA, should stay guided by the objects and purpose of the EA2000 and ensure that their decisions in respect of any EIS [Environment Impact Statement] or EIA [Environment Impact Assessment] or responding to any activity that has an impact on the environment, deliver on the stated objects and purposes of the EA2000 as outline in its preamble and ss. 4 - 6. This is necessitated and or dictated by the challenge that are facing our country and the world today due to climate change and its many adverse consequences.’
39.	On the judiciary’s part, are its published decisions like the ones in Kula Oil Palm Ltd v. Tieba (2021) N9559, Saonu v. Mori (2021) N9170 and Morua v. China Harbour Engineering Co (PNG) Ltd (2020) N8188. Additionally, given the pressing need to preserve and maintain what is remaining of the country’s and hence the world’s rainforests, the National Court made orders restraining and prohibiting the grant of any further timber permits for logging, or clearing of any forest areas and other permits or licenses until the PNGFA properly accounts for the operation of the current permits, authorities, or licenses meeting the requirements under the Environment Act 2000 as amended as well as global or international requirements, based on the relevant and applicable international conventions and agreements such as the Paris Climate Agreement.”
21.	To this, I now add, long before the international conventions, agreements and treaties came into existence as well as the enactment of the EA2000, PNG’s founding fathers had the foresight to provide for a protection and proper management of our environment and the various biodiversity and ecosystems in it in the preamble to the country’s Constitution in the National Goals and Directive Principles.  They are found in Goal 4 in these terms:

“4. Natural resources and environment 
We declare our fourth goal to be for Papua Guinea’s natural resources and environment to be conserved.

WE ACCORDINGLY CALL FOR – 
(1)	wise use to be made of a natural resources and environment in and on the land or seabed, in the sea, under the land, and in the air, in the interests of our development and in trust for future generations; and 
(2)	the conservation and replenishment, for the benefit of ourselves and prosperity, of the environment and its sacred, scenic, and historical qualities; and
(3)	all necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees.”

22.	 The EA2000 was enacted amongst others, to implement this important National Goal and Directive Principle.  This is apparent from a reading of the Act’s preamble which reads:

“Being an Act to provide for and give effect to the National Goals and Directive Principles and in particular – 
(a) 	to provide for protection of the environment in accordance with the Fourth National Goal and Directive Principle (National Resources and Environment) of the Constitution; and 
(b) 	to regulate the environment impacts of development activities in order to promote sustainable development of the environment and the economic, social and physical well-being of people by safeguarding the life-supporting capacity of air, water, soil and ecosystems for present and future generations and avoiding, remedying and mitigating any adverse effects of activities on the environment; and
 (c) 	to provide for the protection of the environment from environmental harm; and 
(d) 	to provide for the management of national water resources and the responsibility for their management...”
(Emphasis supplied)

23.	Section 4 of the EA2000, strengthens what is stated in the National Goals and Directive Principles and the preamble to the Act itself.  That provision in relevant parts stipulate: 
“(f)	to require persons engaged in activities which have a harmful effect on the environment progressively to reduce or mitigate the impact of those effects as such reductions and mitigation become practicable through technology and economic developments; and 
(g) 	to allocate the costs of environmental protection and restoration equitably and in a manner that encourages responsible use of, and reduced harm to, the environment; and 
(h) 	to apply a precautionary approach to the assessment of risk of environmental harm and ensure that all aspects of environmental quality affected by environmental harm are considered in decisions relating to the environment...”
(Emphasis supplied)

24.	In my decision in Hon. Ginson Saonu & Or v. Wera Mori & Ors (2021) N9170, I commented on the objectives in s.4 in these terms:
“The intend and or purpose of these provisions are obvious. They are consistent with current global best practices for the protection of what is left in our environment as broadly defined by the EA2000 itself from further harm or damage. In my humble view, our global village is facing the next possible pandemic, namely climate change and its many associated adverse consequences caused mainly by global warming due to increased levels of greenhouse emissions, unless all countries and all persons meaningfully take mitigation and adaptation measures in earnest. Human activity since the industrial revolution in 1770s which has and is continuing to adversely impact upon the environment is contributing substantially to greenhouse gas emissions. Serious global concern over this likely next pandemic has given rise to several international protocols such as the Kyoto Protocol which operationalises the United Nations Framework Convention on Climate Change by committing industrialized countries and economies in transition to limit and reduce greenhouse gases emissions in accordance with agreed individual targets. I am thus, of the view that, these international developments influenced the legislature in PNG to enact the EA2000. It follows therefore that, as a sensible and responsible global citizen, PNG through the Minister and the MD of CEPA, should stay guided by the objects and purpose of the EA2000 and ensure that their decisions in respect of any EIS [Environment Impact Statement] or EIA [Environment Impact Assessment] or responding to any activity that has an impact on the environment deliver on the stated objects and purposes of the EA2000 as outline in its preamble and ss. 4 - 6. This is necessitated and or dictated by the challenge that are facing our country and the world today due to climate change and its many adverse consequences.”

25.	The objectives stated in s.4 of the EA2000 also reflect now established international environmental law principles which have been adopted and applied in our jurisdiction. In Mayur Renewables Ltd v. Mirisim & Ors (supra) I cited the principles in these terms: 
“121.	In the Climate Change related emergency, we are fortunate to have a whole body of law that is being developed and crystalized into accepted and settled principles of law under the broad heading of Environmental Rule of Law internationally and domestically by many countries. These principles are succinctly state in the International Union for Conservation of Nature World Declaration on the Environmental Rule of Law (World Declaration). That World Declaration was made by a group of experts from the World Commission on Environmental Law at the International Union for Conservation of Nature World Environmental Law Congress in April 2016. The declaration establishes 13 principles. The first 5 principles are relevant for our purposes. They are:
“Principle 1 - the obligation of each state, public or private entity, and individual to protect nature.
Principle 2 - the right of each human and other living being to the conservation, protection, and restoration of the health and integrity of ecosystems; and the inherent right of nature to exist, thrive, and evolve.
Principle 3 - 	the right of each human, present and future, to a safe, clean, healthy, and sustainable environment.
Principle 4 - taking legal and other measures to protect and restore ecosystem integrity and to sustain and enhance the resilience of social-ecological systems.
Principle 5 - 	the principle of in dubio pro natura (i.e., in cases of doubt, all matters before courts, administrative agencies, and other decision makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment).”
26.	Another well accepted international environmental law principle as well as an economic one is the principle of “polluter pays principle”.   The Privy Council, per Lord Carnwarth, described that principle in Fishermen and Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) (2017) UKPC 37 (27 November 2017) in these terms:

“The Polluter Pays Principle (“PPP” or “the Principle”) is now firmly established as a basic principle of international and domestic environmental laws. It is designed to achieve the “internalization of environmental costs”, by ensuring that the costs of pollution control and remediation are borne by those who cause the pollution and thus reflected in the costs of their goods and services, rather than borne by the community at large. (see eg OECD Council 1972 Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies; Rio Declaration 1992 Principle 16).

Present case
 
27.	In the present case, all these principles are applicable.  Based on the evidence before the Court thus far, environmental harm and damage as alleged by the Plaintiffs have already occurred. Some of the hazardous and harmful substances responsible for the alleged environmental harm and damage to the environment are still there even after the Second and Third Defendants have left the site or land.  The most relevant remedial action to take in the circumstances in addition to any compensation in the damages for the harm caused, is cleaning up of the hazardous and harmful material that have been left behind and a restoration of the land and the health of the environment to the state they were at prior to the alleged harm and damages to the extent that is possible.

28.	The duty to clean-up any environmental harm or damage is a critical component of legislative frameworks worldwide.  In our case is the EA2000 which establishes the legal framework in PNG. This duty emphasizes the responsibility of individuals, corporations, and government authorities to restore and rehabilitate environments that have been damaged or contaminated due to their activities. This is necessary to restore ecosystems to their natural state consistent with the objectives stated in s. 4 of the EA2000.  Cleaning up and restoration measures ensures that, the interrupted, damaged or destroyed flora and fauna can recover, which is necessary to maintain biodiversity and ecological balances in the area. Clean-ups and restoration come with the potential of restoring the health of the disrupted or destroyed ecosystems which is vital to provide essential services, such as clean air and water, which are critical for human survival.

29.	Undoubtedly, environmental damage or harm often leads to public health risks, including exposure to hazardous substances, water contamination, and air pollution. By enforcing clean-up and restoration duties, authorities can mitigate these risks and protect the health and safety of communities.  Such enforcement can encourage responsible practices and foster a culture of environmental stewardship.

30.	A failure to clean up any environmental harm or damage comes at the risk of significant legal repercussions, including fines and penalties. It also places financial burdens on communities and governments that may need to intervene to address the harm and damage and have them cleaned up and restored.

31.	Under the EA2000 legal framework, the Managing Director of CEPA is tasked with overseeing and ensure sound management and protection of the environment.  He is also tasked to enforce compliance with our environmental laws. This includes the duty to issue Clean-Up Orders that are inclusive of restoration orders when environmental harm occurs. The relevant provision in this context is s.103 of EA2000. That provision reads:

“103. CLEAN-UP ORDER. 

(1) Where the Director is satisfied that a person has caused environmental harm by a contravention of – 
(a) this Act or any of the repealed Acts; or
(b) an Environment Policy; or 
(c) an Environment Protection Order; or
(d) an Emergency Direction; or 
(e) the Regulation; or 
(f) a condition of an environment permit, he may issue a Clean-up Order under which officers or other persons authorized by the Director may take specified action to minimise or restore any resulting environmental damage. 
(2) A Clean-up Order shall –
(a) be in writing; and 
(b) specify the person alleged to have caused the environmental harm; and 
(c) specify the contravention alleged to have caused the environmental harm; and 
(d) include authorization for action to be taken to prevent or mitigate further environmental harm. 
(3) A Clean-up Order must be served on the person alleged to have caused the environmental harm, as soon as practicable after it has been issued. 
(4) A person served with a Clean-up Order shall take all reasonable steps to comply with the requirements of the Order. 
(5) The Director may, by notice in writing, vary or revoke a Clean-up Order.
(6) A Clean-up Order may authorize an authorized officer to – 
(a) enter premises, other than a residence, without a warrant; and 
(b) seize evidence of the commission of an offence.”

32.	Over the years, there has been a total absence or only isolated instances of steps taken to enforce our environmental conservation and protection laws provided for in the EA2000.  Similarly, there has been a total lack (or only isolated instances) of CEPA and its Managing Director acting promptly or effectively in response to environmental harm and damage, leading to prolonged harm and degradation.  The decisions of the National Court in Mayur Renewables Limited v. Mirisim & Ors (supra); Susupie v. Tambua (2025) N11258 and Saonu v. Mori (supra) highlight and confirm this position, evidence by a lack of proper environmental monitoring and evaluation of activities in the country and timely interventions. Some of these activities such as logging, mining, oil and gas extractions, large scale agriculture projects, building and road constructions have had serious impacts on the health of our environment, ecosystems and biodiversity even in cases where environmental permits have been issued. There has been almost nil stop work and Clean-up orders. 

33.	Only a few people or parties affected by the activities of others resulting in environmental harm and damage have come to the Court mainly seeking redress in the absence of any meaningful intervention and action by the Managing Director of CEPA. The judiciary certainly has the power to intervene and issue the appropriate orders, relief or remedy, including Clean-up Orders pursuant to s155(4) and s57 of the Constitution. Through such orders, the Courts have the inherent power to compel persons responsible for any environmental harm or damage and or the introduction of hazardous and harmful substances into the environment to take appropriate Clean-up and remediation actions. 

34.	Courts often consider the broader implications of environmental harm and damage on the public health, welfare, their safety and more so the fundamental human right of the right to life which requires a right to a clean, safe and healthy environment when issuing Clean-Up Orders. Through the Clean-up Orders, the Courts can mandate specific actions to remediate environmental harm or damage as provided for in s.103 of the EA2000.  This reinforces the principle that, environmental protection is not solely the responsibility of the Managing Director of CEPA and or the government, but a collective societal obligation as expressly provided for in the object of the EA2000 per s4 and the international environmental principles of law.  This is necessary to protect our environment, the rights of the people to a clean and healthy environment to sustain the most fundamental right, the right to life.  Hence, the involvement of the judiciary as the protector of the people’s rights necessarily and most importantly serves as a deterrent against negligence, violation or non-compliance of our environmental laws. Knowing that courts can impose clean-up and restoration or remediation responsibilities, encourages corporations and individuals to adhere to environmental regulations proactively.

35.	In summary, the duty to clean up environmental harm and or damage is a fundamental principle of environmental law, emphasizing the importance of restoration, public health, and accountability. While the Managing Director of CEPA plays a crucial role in enforcing this duty, the Courts provide an essential mechanism for ensuring compliance and protecting the environment when administrative actions fall short. Upholding this duty is vital for safeguarding our natural resources, biodiversity, ecosystems and a safe, clean and healthy environment to secure a sustainable future for all.

Applying the law to the facts 

36.	Turning to an application of the law to the facts in this case, there is no evidence before this Court of CEPA which has the primary duty and responsibility to protect the environment having carried out any monitoring and investigations, if any, on how the First Defendant was discharging its duties and obligations under the Environmental Permit issued to it. If such inspections and monitoring were carried out, CEPA could have come across the alleged harm and damage in this case and could have issued the relevant orders under the EA2000 to prevent the harms and damages from occurring and could also have issued Clean-up Orders. None of these kinds of action or steps has been taken, even after the Court ordered investigation into the allegations and the CEPA’s own report now before the Court confirms the alleged harm and damage.  

37.	This calls for an exercise of the inherent powers the Court has under s. 155 (4) and 57 of the Constitution, in the light of no meaningful action taken by CEPA under s.103 and other provisions of the EA2000.  The Court can step in and make the kind of Clean-up Orders CEPA should have made in the interest of protecting the environment and the human lives dependant on the environment.  This as of necessity requires an application of the “polluter pays principle” for the costs involved in Clean-up and restoration orders.  It will also be necessary to apply the precautionary and dubio pro natura principles to protect against any further harm and damage by the Defendants.

38.	Based on all the foregoing and applying the international principles of environmental law as adopted into PNG by the EA2000 and judgments of the Courts I make the following orders:

1.	The Defendants shall immediately undertake a complete and thorough Clean-up of the hazardous and harmful material and substances which include septic/sewerage, oil, bitumen, workshop grease and other waste material left along Izuno Creek and their laydown site, as confirmed by the investigation report by the Conservation and Environment Protection Authority (CEPA) a copy of which is annexed to the affidavit of Ms. Karen Henson, sworn and filed on 11 November 2025, which process shall commence forthwith and concluded by 05 January 2025.

2.	The Clean-up must be carried out in due compliance of all and any relevant and applicable environmental protection regulations under the Environment Act 2000 and any other legislation.

3.	The Defendants are also required to take appropriate remedial action to fully restore any physical harm or damage done to the environment again in due compliance with all prevailing environmental protection regulations either under the Environment Act 2000 and any other legislation. 

4.	The Managing Director of CEPA, Mr Jude Tkululiya, shall supervise the compliance of the foregoing orders and provide a report to this Court of the Defendants compliance of the orders with recommendations for further action, if need be, until the hazardous and waste material have been completely cleaned up and the environmental harm and damage have been fully restored. 

5.	The First Defendant with assistances from the Second and Third Defendant (if need be), shall fully fund both the Clean-up and restoration works as well as the full costs of the supervision and reporting requirements under term 4 of these orders.

6.	Unless they have already done so, the Defendants shall establish and implement a safe and environmentally compliant waste disposal system for all their current and future construction related activities, inclusive of regular monitoring and reporting of waste disposal practices to ensure no further environmental harm occurs within fifteen (15) days from the date of this order and have that submitted to CEPA for approval. 

7.	Within 30 days of upon receiving a submission under term 6 from the Defendants, CEPA shall consider the proposal and approve the same forthwith, if all is in order. 

8.	The Defendants are required to implement within 14 days of service of these orders on them, noise mitigation measures to reduce the impact of their operations in all their construction work on the surrounding community which shall include limiting the operation of crusher and other machines to reasonable hours and employ sound dampening technologies to minimize disturbances and noise pollution.

9.	The Defendants are required to appear in court on the next return date with evidence disclosing how they have complied with the relevant Environmental Permit issued to the First Defendant in relation to the various activities they were and are carrying on as alleged in this proceeding and all other construction work, they have and are or will be undertaking. 

10.	Unless the Defendants are able to demonstrate to the satisfaction of this Court that they are fully complying with the requirements of the Environment Act 2000 and other relevant and applicable legislation and are operating within acceptable national and international requirements with minimal or no harm and damage to the environment, orders restraining them from engaging in any further construction work or any activity that will have an impact on the environment shall be issued against them. 

11.	For clarity it is further ordered that, terms 6 – 8 and 10 of these orders shall apply to all work being currently undertaken along the Highlands Highway, as suggested in the Plaintiffs’ statement of claim and elsewhere in the country for all construction and other activities that have an impact on the environment. 

12.	Unless the First Defendant, as the primary contractor is already doing so, it shall be ordered to forthwith ensure that ongoing compliance with environmental management standards for the conservation, protection and the health of the environment is maintained by all subcontractors, the First Defendant is required to conduct regular audits of the Second and Third Defendants’ operations or any other subcontractors it engages, with the findings reported to the Court and the CEPA every three (3) months for the next two years.

13.	In relation to the damages claim by the Plaintiffs per their statement of claim and the report from CEPA, the Defendants are required to have this matter settled in accordance with the directions initially issued on 12 November 2024 and repeatedly extended with the latest on 4 August 2025.

 14.	The previous orders, in so far as they remain outstanding, are further extended for the parties’ full compliance for which purpose, they shall have the various the time frames per the orders of 12 November 2024 as extended, by the mutual agreement of the parties, but such extension shall not exceed the end of January 2026. 

15.	These orders and the substantive matter are now adjourned to next return on the 13 February 2026 at 9:30am or soon.

16.	The time for the entry of these orders is abridged to take place forthwith upon the court, signing the orders.
35.	Judgment and orders accordingly.

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Lawyer for the petitioner: Public Solicitor