Part VI of the Environment Act 2000 contains the tools for improving performance without prosecuting anyone.
Section 74 — environmental audits and investigations
(a) engage a person to conduct; or
(b) direct a person to commission, in relation to an activity that person is carrying out,
an environmental audit or investigation, and report on it to the Director within a specified time.
(a) an audit of compliance with an Environment Policy, an environmental improvement plan, or the conditions of a permit;
(b) a review of the design and conduct of an environmental monitoring programme; and
(c) identification of the cause of any actual or potential risk of serious or material environmental harm, and the steps that must be taken to prevent, minimise or mitigate it.
The Environment Council shall approve the terms of reference for the audit or investigation, and shall approve the auditor or investigator. That is a real safeguard: neither the Director alone nor the operator chooses the scope or the person.
It is also one of the Council’s express functions, under section 19(1)(f).
Section 74(4) — the statutory declaration
the permit holder, or, where the holder is a corporation, the most senior officer of the corporation resident in Papua New Guinea,
certifying whether, in that person’s opinion, the audit or investigation (c) has been completed in accordance with the terms of reference, or (d) has not, and the reasons.
The declaration must be signed by a named senior individual who is resident in Papua New Guinea — not by a foreign parent or an external consultant. A false statutory declaration carries its own consequences, and section 114 makes knowingly giving false or misleading information in connection with an environmental audit or investigation an offence carrying up to K100,000 for a corporation.
Section 74(6) and (7) — the penalty, and the protection
A corporation up to K100,000.00; another person up to K50,000.00 or two years’ imprisonment, or both. Default penalty K10,000.00.
The contents of an audit report are not admissible in any proceedings as evidence against the person in respect of whom the audit was conducted.
An audit is meant to find problems. If the report could be used to prosecute the operator, no one would commission a candid one. Section 74(7) makes the report inadmissible against that person — which is what allows an audit to be genuinely searching.
Note the limits, though. The protection is for the contents of the report against that person. Compare section 8(4) and (5), where a notification is inadmissible but evidence obtained because of it is not.
Section 74(5) allows the Regulation to prescribe, among other things, the circumstances in which the public should have access to the results of an audit.
Section 75 — environmental improvement plans
The Director may require a person to submit an environmental improvement plan setting out the steps by which an activity will achieve compliance with an Environment Policy, the Regulations, or a standard or requirement imposed under the Act.
He may approve the plan, subject to conditions, where satisfied that (a) it will, if carried out, achieve compliance within a reasonable time; and (b) the person submitting it will carry it out.
| Step | What happens |
|---|---|
| 75(3) | Where the Director is not satisfied, he and the permit holder shall meet and discuss the terms, considering the relevant Environment Policy or Regulation |
| 75(4) | If they cannot agree within 60 days of the start of discussions, the Director is deemed to have rejected the plan — and the proponent may apply for review under section 68 |
| 75(5) | On rejection, the Director shall allow a further 28 days to submit a revised plan — running from the date of rejection, or from dismissal of a section 68 appeal |
Section 75(6) allows the Regulation to prescribe when a plan may be required (whether or not from a permit holder), the approval procedure, annual reports on implementation, fees, and offences with penalties up to K25,000 and default penalties up to K2,500.
Section 75(7) preserves the power to require a plan as a permit condition under section 66, or in relation to a permit saved under section 136.
Section 75(8) — protection against later policies
Where an Environment Policy or Regulation is made after the grant of an environment permit, nothing in it shall be taken to limit or restrict the carrying out of any activity in accordance with that permit, or to amend the permit’s terms and conditions, unless:
(a) the Policy or Regulation was made in accordance with section 33;
(b) the permit holder is first required to submit an environmental improvement plan; and
(c) the process of consideration, discussion, approval or rejection of that plan is completed in accordance with section 75.
This is the Act’s balance between regulatory certainty and progressive improvement. A new standard does not automatically override an existing permit — but the holder can be brought up to it through a negotiated plan, with the section 33 procedure and the section 75 process as the safeguards. It should be read with the object in section 4(f): to require those causing harmful effects to progressively reduce or mitigate them as technology and economics make it practicable.
Section 76 — Emergency Authorizations
(a) it is necessary and reasonable to take the action because of an emergency; and
(b) it is justified to protect life, property or the environment; and
(c) there is no other practicable alternative.
The Authorization shall be in writing, subject to such terms and conditions as the Director considers appropriate (s 76(2)).
All three conditions must be satisfied. An Emergency Authorization is one of the six sources of lawfulness in section 10(1), so harm caused within it is not unlawful. It is distinct from an Emergency Direction under section 106, which requires action rather than permitting it, may be given orally, and lasts 72 hours.
Section 77 — data collection, and confidentiality
(1) The Director may, and where he considers it necessary shall, arrange for the collection and storage of information concerning the environment or any element or segment of it.
(2) He may, by written notice, require any person to provide information in their possession relating to an activity within section 41, or research carried out by them, that he considers relevant.
(a) confidential information relating to a manufacturing process or trade secret; (b) confidential business or financial information; or (c) information subject to confidentiality conditions under any other contract, permit, approval, tenement or licence.
And section 77(4) gives a defence to a prosecution for non-compliance where the person satisfies the Court on the balance of probabilities that he believed on reasonable grounds that the information was confidential within subsection (3).
Reports from water investigation permits may form part of this data under section 94(2), and must then be arranged, where possible, so that particulars are not identifiable as relating to a specific undertaking.
Practical steps
- If directed to commission an audit, comply — the penalty is up to K100,000 for a corporation, with a daily default penalty.
- Engage with the terms of reference; the Council approves both them and the auditor.
- Let the audit be candid — section 74(7) makes the report inadmissible against you.
- Do not overstate the declaration. If the audit was not completed in accordance with the terms of reference, say so and give the reasons.
- Where compliance cannot be immediate, propose an improvement plan with realistic milestones and evidence you will carry it out.
- Diary the 60 days of discussions and the 28 days to revise after rejection.
- When a new Policy appears, check section 75(8) before assuming your permit is affected.
- Answer section 77 notices, claiming confidentiality only within subsection (3) and recording the reasonable grounds.
Sources
- Environment Act 2000 — ss 4, 8, 10, 19, 33, 41, 66, 68, 74–77, 94, 106, 114, 136; Part VI
- Conservation and Environment Protection Authority Act 2014
Before relying on anything here, read the current text of the Environment Act 2000 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.