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How Does the Mining Act Work With Environment Law?

They are separate approvals. A mine needs a tenement and an environment permit — and under section 46 of the Environment Act other authorities are restrained from issuing approvals for a level 2 or 3 activity until the environment permit is granted.

The mining law series, no. 43 · Safety, environment and disputes · 6 min read

Mining in Papua New Guinea is licensed twice: once under the Mining Act 1992, and once under the Environment Act 2000.

The two approval streams

The two approval streams compared
Mining Act 1992Environment Act 2000
InstrumentA tenementAn environment permit
Decision-makerThe Minister, or the Head of State acting on advice, on the Mining Advisory Council’s recommendationThe Director of Environment; for a level 3 activity, the Minister’s approval in principle on the Environment Council’s recommendation
Public participationObjection and Warden’s hearing; development forum for a special mining leasePublic review of the impact statement and submissions
CompensationPart VII, ss 154–160Section 87
SecuritySection 150 security for complianceSection 99 environmental bond
ReviewNo general merits appeal on grant; appeal on compensation under s 158Council review within 21 days; appeal to the National Court on a question of law

Section 46 — the environment permit comes first

Section 46 of the Environment Act 2000

(1) Other governmental authorities shall be restrained from issuing permits or licences for level 2 or level 3 activities (other than existing activities) that would authorise conduct causing environmental harm in breach of that Act, until an environment permit has been granted.

(3) Where a person applies for another kind of approval for a level 2 or 3 activity under other legislation, the other authority shall refer the application to the Director.

A mine will ordinarily be a level 3 activity — section 42(2) of the Environment Act allows activities that involve matters of national importance or may result in serious environmental harm to be prescribed as level 3. That means full environmental impact assessment, and section 50(4) provides that a permit application may not be accepted until the assessment is completed and the Minister has given approval in principle.

Applying for a tenement is itself “preparatory work”

Under section 47(d) of the Environment Act, applying for an approval, permit or licence under another Act is preparatory work. Section 48 then requires the intention to be registered in writing with the Director at least one month beforehand for a level 2 or 3 activity — and section 49 makes carrying out preparatory work without registering an offence carrying up to K20,000 for a corporation.

So the environmental process starts before the tenement application, not after the tenement is granted.

The institutional link

The connection is not only procedural. Under section 11(2)(b) of the Mining Act, the Director of the Department of Environment and Conservation (or his nominee) sits ex officio on the Mining Advisory Council — the body that recommends every grant, extension and transfer of a tenement.

The environment regulator is therefore in the room when mining decisions are recommended, and the mining regulator must wait for the environment permit before the activity may lawfully proceed.

Water — where the two Acts meet directly

The Water Resources Act is gone

Sections 23(1)(c), 41(1)(d), 51(1)(c) and 69(1)(c) of the Mining Act each confer a right to take and divert water “subject to and in accordance with the Water Resources Act (Chapter 205)”.

That Act was repealed by section 134(d) of the Environment Act 2000. Under section 135 of that Act, a reference to a repealed Act is to be read as a reference to the Environment Act or its corresponding provision — so those rights are now governed by Part VII of the Environment Act, under which the right to the use, flow and control of water is vested in the State and damming, diverting, taking, using or discharging into water requires a permit.

Section 79(2) of that Act separately preserves customary rights to the use of water by citizens resident in the area where they are exercised.

Two compensation regimes, side by side

Mining Act and Environment Act compensation compared
Mining Act s 154Environment Act s 87
Who is liableThe holder of a tenementThe holder of a permit
Who is entitledLandholdersOwners, occupiers and any person with customary rights, in relation to their several interests
Distinctive headsSocial disruption; loss of earnings from cultivated land; severanceRights to water customarily associated with the land; damage to flora and fauna
Neighbouring lands 154(6) — injured or depreciated in values 87(3) — damaged or depreciated in value, adjoining or in the vicinity
If not agreedA Warden determines, with appeal to the National CourtThe Director determines within 90 days, with appeal to the National Court
If not paidBreach of a tenement condition; deducted from the security; blocks extensionA ground to suspend or cancel the permit, on application by the person entitled
Pursue both

They are not alternatives. A group affected by a mine should be advancing a Part VII claim under the Mining Act and considering section 87 of the Environment Act — particularly where water, downstream land, or flora and fauna are affected.

Enforcement compared

  • Mining Act. Section 167 — up to K10,000 or four years, with a court power to order rehabilitation and, on failure, to require payment of the cost as a debt to the State. Section 5A carries up to K1,000,000.
  • Environment Act. Serious environmental harm — up to K250,000 for a corporation, with daily additional penalties under section 116, uncapped clean-up cost recovery under section 105, and court powers to order damages, compensation and rehabilitation under sections 129 and 130.
  • Orders. The Director of Environment may issue an Environment Protection Order, a Clean-up Order or an Emergency Direction — but not against a person acting in accordance with the terms and conditions of a permit (ss 101(6), 103(7)).

Sequencing a project

  1. Register the intention with the Director of Environment at least one month before any preparatory work — including before applying for a tenement.
  2. Expect a section 50 notice for a level 3 activity, and plan the assessment timetable.
  3. Get the inception report right; it fixes the scope of the impact statement.
  4. Run the mining and environment processes in parallel, remembering section 46 restrains other approvals until the environment permit issues.
  5. Deal with both compensation regimes, and with the section 155 bar on entry.
  6. Arrange both securities — the section 150 security and the section 99 environmental bond.
  7. Plan closure from the start — rehabilitation conditions under both Acts, and section 152 on plant, tailings and ore.

Sources

Check the section yourself

Before relying on anything here, read the current text of the Mining Act 1992 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.