How Does the Environment Act Fit With Mining, Petroleum and Forestry Law?

The Environment Act 2000 does not stand alone. Mining, petroleum, forestry, fisheries and planning each have their own approvals. This article deals with how they fit together.

Section 3 — the Act binds the State

Subsection (1) puts State agencies, statutory authorities and State-owned enterprises inside the Act. Subsection (2) deals with the major project agreement statutes: this Act applies to those projects only to the extent that the agreement Acts themselves provide — so the starting point for such a project is the agreement legislation. The agreement Acts are available in the PacLII 1986 Revised Edition, including the Mining (Bougainville Copper Agreement) Act and the Mining (Ok Tedi Agreement) Act, together with the several Ok Tedi supplemental agreement Acts.

Section 46 — the restraint on other approvals

Section 36 — Environment Policies bind all approving authorities

So the objectives set under Part IV run through the whole approvals system, not just this Act. And section 5 requires all persons exercising powers and functions under this Act to recognise and provide for the matters of national importance — including the role of landowners in decision-making about the development of the resources on their land.

The Mining Act 1992

The Mining Act 1992 vests all minerals in the State and creates the tenement system — exploration licences, mining leases, special mining leases and the rest. The Environment Act operates alongside it:

• Exploration and mining are activities within section 41(1)(c) — extracting or harvesting natural resources — and typically involve works, plant and contaminant releases as well.
• A large mine will be a level 3 activity, requiring full environmental impact assessment and the Minister’s approval in principle before a permit application can even be accepted.
• Under section 46(3) a tenement application must be referred to the Director.
• Compensation under section 87 runs in parallel with mining compensation, and covers rights to water customarily associated with the land, flora and fauna, and damage to neighbouring land.
• Under the Employment Act (Chapter 373), an authorised officer may not enter a mine unless accompanied by an inspector or mining engineer appointed under the Mining Act — a reminder that mine safety is a separate regime, with the Mining (Safety) Act (Chapter 195A).

Forestry, land and planning

• Forestry. Logging involves land clearance and harvesting natural resources under section 41(1)(a) and (c). A forestry approval for a level 2 or 3 activity is caught by section 46, and applying for one is preparatory work under section 47(d).
• Land. Acquisition for the purposes in section 85 is declared a public purpose for section 53 of the Constitution and the Land Act 1996. Lease conditions under the Land Act and customary land rights continue to apply.
• Provincial and local government. Provincial Environment Policies may be made on noise, litter, hygiene and sanitation, and on other matters within provincial law-making capacity — but are invalid to the extent they are inconsistent with the Act or a national Policy, or set less stringent standards (s 39(4)).

The Forestry Act 1991 (the principal Act) is not carried in the PacLII Papua New Guinea legislation databases; a number of amending Acts are. It is named here rather than linked, so that no unverified link is given.

Sections 134 to 136 — what the Act replaced

Three separate regimes — planning, contaminants and water — were consolidated into one Act. That is why Part VII deals with water rights in a statute otherwise about environmental protection.

Sections 137 to 140 complete the transition — recovery of fees, compensation, the continuation of actions, and a power to make regulations to resolve transitional difficulties. Note too that a Clean-up Order may be issued for harm caused by a contravention of any of the repealed Acts (s 103(1)(a)).

Sequencing a resource project

1. Identify the level of every activity in the project under the Regulation.
2. Register the intention with the Director at least one month before any preparatory work — including before applying for a tenement or an Investment Promotion Act approval.
3. Expect a section 50 notice for a level 3 activity, and plan the assessment timetable.
4. Prepare the inception report carefully; it fixes the scope of the impact statement.
5. Build in social impact and landowner consultation from the start — sections 5(d), 4(i) and 51(1)(b).
6. Expect other authorities to refer applications to the Director under section 46(3).
7. Do not assume a tenement authorises the works; the environment permit and its conditions are separate.
8. Deal with compensation early — unpaid compensation is a ground to cancel the permit.
9. Arrange the bond and the rehabilitation plan before operations begin.