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
| Mining Act 1992 | Environment Act 2000 | |
|---|---|---|
| Instrument | A tenement | An environment permit |
| Decision-maker | The Minister, or the Head of State acting on advice, on the Mining Advisory Council’s recommendation | The Director of Environment; for a level 3 activity, the Minister’s approval in principle on the Environment Council’s recommendation |
| Public participation | Objection and Warden’s hearing; development forum for a special mining lease | Public review of the impact statement and submissions |
| Compensation | Part VII, ss 154–160 | Section 87 |
| Security | Section 150 security for compliance | Section 99 environmental bond |
| Review | No general merits appeal on grant; appeal on compensation under s 158 | Council review within 21 days; appeal to the National Court on a question of law |
Section 46 — the environment permit comes first
(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.
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
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 s 154 | Environment Act s 87 | |
|---|---|---|
| Who is liable | The holder of a tenement | The holder of a permit |
| Who is entitled | Landholders | Owners, occupiers and any person with customary rights, in relation to their several interests |
| Distinctive heads | Social disruption; loss of earnings from cultivated land; severance | Rights to water customarily associated with the land; damage to flora and fauna |
| Neighbouring land | s 154(6) — injured or depreciated in value | s 87(3) — damaged or depreciated in value, adjoining or in the vicinity |
| If not agreed | A Warden determines, with appeal to the National Court | The Director determines within 90 days, with appeal to the National Court |
| If not paid | Breach of a tenement condition; deducted from the security; blocks extension | A ground to suspend or cancel the permit, on application by the person entitled |
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
- Register the intention with the Director of Environment at least one month before any preparatory work — including before applying for a tenement.
- Expect a section 50 notice for a level 3 activity, and plan the assessment timetable.
- Get the inception report right; it fixes the scope of the impact statement.
- Run the mining and environment processes in parallel, remembering section 46 restrains other approvals until the environment permit issues.
- Deal with both compensation regimes, and with the section 155 bar on entry.
- Arrange both securities — the section 150 security and the section 99 environmental bond.
- Plan closure from the start — rehabilitation conditions under both Acts, and section 152 on plant, tailings and ore.
Sources
- Mining Act 1992 — ss 5A, 11, 23, 41, 51, 69, 150, 152, 154–160, 167
- Environment Act 2000 — ss 42, 44–50, 66, 79, 87, 99, 101, 103, 105, 116, 129–135
- Mining (Safety) Act (Chapter 195A)
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.