Buni Morua v. China Harbour Engineering Company (PNG) Limited & Ors

In 2015, the Department of Works and Implementation contracted the defendant, China Harbour Engineering Company Limited (CHECL), to reconstruct the Laloki Bridge outside Port Moresby in the Central Province. The plaintiff and their respective families lived and farmed on land described as an Agriculture State Lease, near the same Laloki Bridge (Land). During the course of CHECL’s reconstruction works, the plaintiffs were subjected to substantial environmental damage and the release of dust, chemicals, waste, and other pollutants, impairing the Land’s topsoil. After reconstruction, rectification works of the environmental damage inflicted were left unperformed by CHECL. Seeking redress, the plaintiffs brought the matter to the Conservation Environment Protection Authority (CEPA) to investigate and hired a private environmental impact assessor company, Chem Clean Environmental Services Limited (CCESL), to carry out an Environmental Impact Assessment. In 2018, CEPA and CCESL completed their reports and found that CHECL did not apply for or receive an appropriate environmental permit to carry out its works as per the Environment Act 2000 as amended, and confirmed the plaintiffs’ claim of having suffered environmental damage caused by CHECL’s works. Notwithstanding, CHECL declined to compensate the plaintiffs. The plaintiffs proceeded to sue CHECL for damages, trespass, and possible conversion. CHECL challenged the plaintiffs’ standing by way of a striking out motion, arguing that the plaintiffs lacked standing because title in the Land was vested in persons other than the plaintiff. The court decided the case in February 2020. The court first referred to the National Court Rules, wherein the concept of having sufficient interest in the context of judicial review was formalized, and to section 57 of the Constitution, which provides that rights or freedoms referred to in the Constitution shall be enforceable by the Supreme or National Court for the purpose provided by an Act of Parliament, either on its own initiative or on application by any person with an interest in its protection. The court stated that the objective of section 57 was to enable prompt intervention and judicial determination in respect of any actual, imminent, likely or reasonable probability of a breach of a person’s human rights, and is to happen with any ‘undue difficulty’. In the court’s view, standing to bring proceedings for the enforcement of human rights could prove an obstacle if normal conventions apply, as waiting for normal processes to take its cause could allow for breaches to continue unabated. As such, the court expressed that there ought to be no restriction on who can invoke the powers of the court as provided for by the Constitution. The only relevant test for such an action is that there must be actual, imminent, likely, reasonable, or probable breach of a human right. Once met, almost anybody, including the Court acting suo moto, or acting on its own initiative, can initiate proceedings under section 57 for the enforcement or protection of a human right. The court elaborated that the power to act suo moto was not unique to Papua New Guinea and referred to the judiciary in Pakistan and India. A court acting suo moto would decline its traditional adversarial role for a more inquisitorial role, with administrative time shortened to enable prompt hearings. Such powers may be invoked and applied to ongoing proceedings already before a court or for new proceedings the court itself initiates. Upon deliberation, the court found that the plaintiffs had the requisite standing. The plaintiffs’ agriculture lease of the Land showed their collective names as registered title holders, with the lead plaintiff as a member of the title-holding family and the rest of them as persons who had been invited to live on the Land by the title holders and who had lived off the Land for many years. Further, the court observed that in light of climate change, there is a worldwide concern over how human activities are adversely affecting the environment and, in turn, the survival of the human race. As guaranteed under section 35 of the Constitution, the right to life was recognized by the court to be central to all rights. Reference was made to Munn v State of Illinois, and a host of Indian cases, where life was interpreted broadly to encompass not just physical existence but also the quality of life. The court, relying on the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) of 1972, explained that international developments demonstrated the recognition of a right to a healthy environment. In the court’s view, any human activity that caused an adverse impact on the environment would give rise to a possible breach of the fundamental right to life. To the court it followed, in reliance on the cases of Urgenda in the Netherlands, Leghari in Pakistan, and Himanchal Pradesh in India, that a failure of states to take adequate steps to address climate change may constitute a violation of the right to a healthy environment. Considering this legal backdrop, the court found that the possible breach of the fundamental right to life also gave the plaintiffs standing. The court then dealt with the defendant's claim that the plaintiff’s suit ought to be struck for disclosing no reasonable cause of action. Although the court observed that the pleadings did not follow a logical sequence and included submissions without pleading their full factual foundation, they were found to be curable by appropriate amendments. Finally, the court ordered that CEPA and other regulatory bodies were to be joined as parties to the suit. The fact that CHECL was never issued the appropriate permit under the Environment Act 2000, as amended, suggested a failure by the State through CEPA to monitor and ensure CHECL’s activities caused minimal environmental damage.