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Below we describe one case of very important and over paid litigants finding themselves caught short in the pressure of a Supreme Court Appeal.
(Images here are of stakeholders in court dress and traditional bilas)
I quote an unimpeachable source on the 4th and 5th Appeals in the Ramu Nicko case that just wrapped this week. Clearly people in the heat of a trial are no less able to take notes than the rest of us watching from the sidelines.
We learn that:
The Appeal commenced on the morning of Tuesday 4th October and the Bench was 10 minutes late. No penalty for them though – and it was two of the three judges who had penalised Tiffany last time. The Judges were Justice Davani (President), Justice Sawong and Justice Hartshorn.
These were the three Judges who sat on the earlier unsuccessful appeal by MCC against the first injunction – in July 2010. You will recall Davani and Sawong JJ decided in our favour and refused the Appeal – but Hartshorn found for MCC – so our side won by a 2/1 majority. Judge Hartshorn has been on every single one of the decisions in the past month on procedural matters – and he has found against the Plaintiffs every time. Hmmmmm....The day was started with an application by MCC to include some fresh evidence – that was the FINAL APPROVED Operational Environmental Monitoring Plan – it was the last admin approval needed by MCC before they are able to start dumping and it appears it was approved in early September 2011.
Tiffany consented to its inclusion as it was highly relevant. She then commenced the Appeal.
It was agreed that she would go first with the Appeal – against the refusal to grant the permanent injunction, then MCC at the State would respectively respond to our Appeal and then move their Cross Appeals against the factual findings of Cannings that there was likely serious environmental harm, that they were found in breach of Private and Public Nuisance and that their conduct was contrary to National Goal and Directive Principle no 4 - and that they were Not protected by their permit to dump as the permit did not authorise the extent of the damage that the Judge found.
She would then reply to their response to her Appeal and she would respond to their Cross Appeal.
Tiffany spoke on our appeal for about two hours – the Judges seemed to be following well aided by the written submissions in front of them and asked a few questions. It flowed well.
Scerri started just before lunch – but didn’t have his submissions finished – so he was making the judges work hard to concentrate – which they did not appreciate. His submissions were actually against the factual findings by Cannings and so he was saying
1) that their “experts” had said “x” and that there was no damage and in fact the overwhelming evidence was that there would be no damage – and
2) that Cannings conducted a superficial overview of the evidence and gave scant reasons for his finding of serious environmental damage – and as Cannings was required by law to give reasons – this was an error of law that warranted overturning by the Supreme Court
3) that our experts gave little evidence
4) that his experts were experts and Cannings should have considered their evidence as superior
5) that in any event – nothing below 100m has any interactions with humans, and that the bottom of the sea was like a moonscape.
This all involved hopping through the evidence and the decision – and without it written out in front of them – the Judges were finding this hard going and a lot confusing.
About mid afternoon Scerri finished, and Molloy addressed on the legal issues in response to our appeal – and again no submissions – so after about 20 mins Judge Sawong told Molloy it was very hard going.
Molloy made submissions on all our grounds of appeal. He said to the Court also on the first ground that we had made up the common law principle that if nuisance was proven, the person injured was ENTITLED to an injunction, save only in special circumstances. He was saying the law was the opposite – that just the normal law on injunctions applied.
(We later learned that Tiff was so pissed off by this – as she had provided ALL the case law and a chapter of a recognised text on nuisance – that when it came time to respond to Molloy –she also filed another page of submissions and also handed up another article that had recognised the principle – he was just LYING and she caught him out).
At the end of the first day, everyone at Twivey Co. felt that Tiff had put all they had wanted to put before the court on our appeal – and that they had arguments with which to respond the next day to the other side’s arguments. On Tuesday night Tiff finalised her submissions on the cross-appeal for the next day.
Molloy continued with his submissions on their grounds of appeal on Wednesday morning but this time they had their written submissions ready. He finished about 10.30am and Tanuvasa for the State started. He spent a long time trying to make submissions that customary landowners in PNG cannot have customary ownership or user rights over any part of the sea or sea bed or reefs – over any salt water at all. That it all belonged to the State. WTF ????? He said that to have standing in nuisance one had to have proprietary rights. He then traced the meaning of “proprietary rights” in the English legal system back to the Magna fucking Carta and said that the customary landowners’ interests were not sufficient to be proprietary rights – so we couldn’t sue in nuisance.
HELLO ?????
Customary Landowners do not rely on English common law for their rights to land or sea or trees – they rely on CUSTON – PNG CUSTOM – which has as much force in law here as the English Common Law – well probably MORE. All his submissions were so irrelevant it was embarrassing – obviously written by some Ausaid funded ECP consultant who hasn’t done the PNG customary law, land law or constitutional law exams to know the difference !!!!
He referred to the National Seas Act and said that as PNG had sovereignty over the territorial seas and the internal waters of PNG – the landowners could not have any proprietary rights over the sea. Hello ???? PNG Govt has sovereignty over the whole of PNG but people still own land !!!!!
Worse for him, the Environment Act specifically recognises customary ownership and user rights and protects them – defines customary land and ownership and also recognises customary rights over water – and then defines water as not only rivers and streams but also internal waters and territorial sea.
Sawong also asked if he had raised this in the lower court – or in the pleadings. He said he had no idea ‘cause a different lawyer was representing the state then !!! Tiff was then able to show the court that nowhere in the pleadings did they refer to this and indeed it was NOT raised in the National Court.
He also made submissions about the NGDP being non-justiciable. Molloy then said that the NGDPs were merely aspirational and unenforceable. Oh god.
Tiff then replied to their response and also gave the team’s official response to their appeal –and went thru the evidence and showed where all the evidence of likely harm came from. She went thru the qualifications of the defendants “experts” and then thru ours – and showed why Cannings was right to have regarded our experts as experts and theirs as generalists.
And then it was over.
Onwards and upwards
And I now add the entry from our Court Scribe, Martyn Namarong, who always gets it right:
Parties disputing Ramu Mine Site to file injunction today
The NAMARONG REPORT
http://medicmangi.blogspot.com/
If you’ve been brainwashed (like me for example) by the Churchies, you may recall the story of King Solomon and the two women who fought over a baby.
The story goes that two women who weren’t lesbians or perhaps they were, errr… where I was... Oh yes, two women had babies and they slept in the same room. One night, woman A rolled over and smothered her baby. She then picked up her dead baby and swapped it for the live baby. Anyway, next day em bikpela kros kirap na ol go lukim King Solomon long stretim!
The biological mum of the live baby stood before Solomon carrying the dead infant while woman A held the live baby. King Solomon em tingting igo.... and he said, “Bring the live child to me”. And the Child was handed over by woman A. King Solomon asked, “em pikinini blong husait?” And both women claimed ownership of the baby.
He picked up a sword and told the women that ‘em bai katim pikinini long half na serim wantaim tupela’. Now the evil woman A said ‘em wanbel’ while the biological mother said ‘maski larim em kisim bebi.’
King Solomon then gave the baby to its biological mother because he knew by the fact that she was willing to give up her baby to spare its life.
Moral of the Story: people who don’t own customary land are willing to exploit resources very easily at the expense of those who really own the land!
On the 14th of September 2011, Papua New Guinea Mine Watch, published The National newspaper’s editorial (dated the same) that highlighted a threat from four so called landowner groups to close the mine if the MOA with the government wasn’t signed. The editorial read:
“However obscure these clans might have been in the past, they will create ripples on a national and international level in the not-too-distant future if they carry out their threat to stop the commissioning of Ramu Nico over what they claim are unsatisfactory benefits sharing agreements.
It is incumbent upon the government to prevent that from happening, not by strong arm tactics but by the simple, least costly and most effective way – talking.”
In those few lines of the editorial we can figure the motives of these four so called landowner groups: the Pagazi, Nokombi, Imurumba and Maure clans.
You see folks, the claim of customary ownership over land at Ramu Mine, by these four clans, is being challenged by around twenty other clans, in Court. So around the same time that the other clans file proceedings in Court, the four clans decided to up the ante to get the MOA reviewed and signed with the State. In other words, these four clans are keen on slicing the baby into pieces.
The State wants to negotiate with these four clans next Monday (17th) regardless of the Court Proceedings instituted by the disputing parties.
Today the lawyer representing the disputing parties, yep you guess who, none other than Miss Twivvey, will make an urgent application to the Court to restrain the State and the four clans from negotiating the MOA.
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