Section 7 of the Environment Act 2000 imposes a duty on every person in Papua New Guinea, whether or not they hold a permit and whatever they are doing.
A person shall not carry out an activity that causes or is likely to cause environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the environmental harm.
How the duty is built
Three elements:
- An activity — anything, not only a licensed or industrial one.
- That causes or is likely to cause environmental harm — actual harm is not required; likelihood is enough.
- Unless all reasonable and practicable measures are taken to prevent or minimise it.
Note that the duty is not to avoid harm. It is to take the measures. A person who takes all reasonable and practicable measures complies with section 7 even if harm still occurs.
Section 7(2) — what “reasonable and practicable” means
In determining what measures are required, regard is had to:
- (a) the nature of the harm;
- (b) the sensitivity of the receiving environment;
- (c) the current state of technical knowledge for the activity;
- (d) the likelihood of successful application of the different measures that might be taken; and
- (e) the financial implications of the different measures as they relate to the type of activity.
Paragraph (e) lets cost be weighed, and expressly relates it to the type of activity — so what is practicable for a large mine is not what is practicable for a village enterprise. But cost sits alongside the sensitivity of the receiving environment and the state of technical knowledge. “It was expensive” is not by itself an answer.
Section 7(3) — breach is not an offence
Failure to comply with the general environmental duty does not constitute an offence or give rise of itself to a right to civil remedy, but compliance may be enforced by —
(a) an Environment Protection Order; or (b) a Clean-up Order; or (c) an Emergency Direction.
This surprises people, and it is important to understand correctly.
- You cannot be prosecuted for breaching section 7 alone.
- A neighbour cannot sue you on section 7 itself.
- But the Director can order you to comply — and failing to comply with the order is an offence. That is where the teeth are.
Separately, unlawfully causing serious or material environmental harm is an offence under sections 11 and 12, and ordinary civil claims in negligence or nuisance are unaffected.
Section 7(4) — the defences
Where it is alleged that a person failed to comply with the duty by causing environmental harm, it is a defence if the harm was caused in the course of complying with an Environmental Code of Practice, or was authorised to be caused under:
- an Environment Policy;
- a condition of an environment permit;
- an approved environmental improvement plan;
- an Environment Protection Order; or
- an Emergency Authorization.
This is the practical reason permits and codes matter so much: they convert lawful-but-harmful activity into authorised activity, and supply a defence.
Section 8 — the duty to notify
A separate and criminally enforceable duty sits beside section 7. A person who becomes aware that unlawful serious or unlawful material environmental harm is caused or threatened in the course of an activity they carry out, or over which they have effective control, shall as soon as practicable give written notice to the Director.
Penalty: for a corporation, a fine not exceeding K100,000; for anyone else, a fine not exceeding K50,000 or imprisonment for up to two years, or both.
It is not a reasonable excuse that the notice might tend to incriminate you (s 8(3)). But the notice is not admissible in evidence against you or against any other person carrying out the activity (s 8(4)) — though other evidence obtained because of the notice may be (s 8(5)).
Section 9 — who is responsible
A person who causes environmental harm is responsible for it. But where harm is caused or threatened at a place used in connection with an industrial or commercial activity, the occupier or person in effective control of activities at that place is responsible — except where both:
- the harm occurred as a result of force majeure or accident; and
- that person took all reasonable and practicable measures to prevent or minimise it.
Both limbs are required. An accident alone does not excuse an occupier who took no precautions.
Sources
- Environment Act 2000 — ss 7, 8, 9, 10, 11, 12, 38
- Constitution — Preamble (Fourth National Goal); s 25
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.