Kula Oil Palm Ltd v Tieba [2021] PGNC 611

The plaintiff, Kula Oil Palm Limited (KOPL), a palm oil producer in Papua New Guinea, holds a State Lease in Oro Province restricted to agricultural use. As a member of the Roundtable on Sustainable Palm Oil (RSPO), KOPL is obligated to, as part of a number of climate change mitigation and adaptation requirements, maintain buffer zones within its plantation and undergo annual certification through independent inspections. The buffer zones described are designated areas within KOPL’s plantation reserved for preserving native flora and fauna as part of climate change mitigation efforts. The defendants trespassed onto the land, in particular the buffer zones, clearing vegetation, milling trees, and constructing buildings despite repeated objections from KOPL. The defendants claimed customary ownership, asserting they had purchased the land with consent from traditional owners and obtained village court approval. Pending the final determination of the proceedings, KOPL sought an interim restraining order, known also as an interim injunction, to prevent the defendants from interfering with the buffer zones. There are three key requirements for the grant of an interim injunction: First, the court must be convinced there is a serious question to be tried in the substantive proceedings. Second, the court should be satisfied that damages would not adequately compensate the party seeking the injunction for the harm the injunction is intended to prevent. Third, the balance of convenience should favor the grant of the injunction. Regarding the first requirement, the court accepted KOPL’s submission that there is prima facie evidence supporting its ownership of the disputed land under a State Lease with conditions restricting its use to agriculture. The defendants failed to produce evidence of competing title or lawful ownership. Based on the evidence presented, the court deemed the defendants to be illegal trespassers. The bulk of the court’s discussion concerning climate change occurred in its evaluation of the second requirement, specifically the adequacy of damages as a remedy. In beginning its analysis, the court took judicial notice that palm oil as an industry requires large amounts of deforestation. The court highlighted that KOPL, as a member of the RSPO, has taken deliberate measures to mitigate these risks by establishing buffer zones, which preserve biodiversity and reduce adverse environmental impacts. The defendants’ unauthorized actions, including clearing trees, building structures, and other destructive activities, directly undermined these measures. The court emphasized the vital role of buffer zones in mitigating environmental harm caused by large-scale oil palm plantations, including deforestation, biodiversity loss, soil degradation, and water pollution. It underscored the irreversible damage caused by deforestation, noting that once the natural habitat is destroyed, the land's ecological value and functionality are significantly diminished, often irreparably. In this context, the court cited the Supreme Court’s observation in Rimbunan Hijau (PNG) Ltd v. Ina Enei, which underscores the immeasurable and generational nature of environmental harm, once again reinforcing the argument that damages cannot adequately compensate for the destruction already caused. Moreover, the court placed the case within the broader global framework of climate change mitigation and adaptation, stressing the judiciary’s critical role in enforcing measures to address these challenges. It recognizes climate change as a defining global issue with far-reaching implications, particularly for Pacific Island Countries (PICs) that face heightened vulnerability due to rising sea levels and natural disasters. The court, relying in part on its earlier decision in Morua & Ors v. China Harbour Engineering Co (PNG) Ltd & Ors. (2020) N8188, emphasized that human activities are significant contributors to greenhouse gas (GHG) emissions, which exacerbate global warming and threaten the right to life dependent on a safe and clean environment. Applying this reasoning to the defendants’ actions, the court noted that they failed to show evidence of compliance with the legal requirements under relevant environmental and land legislation, such as the Forestry Act 1991, the Lands Act 1996, and the Environment Act 2000. The court also opined that it can issue restrictive injunctions when there is a prima facie case of harmful human activities, such as deforestation or pollution, that negatively impact the environment. Once the case is established, the burden shifts to the responsible party to prove that their activities do not contribute to GHG emissions or that emissions are at acceptable levels. In this vein, the court also highlighted the broader role of the judiciary in enforcing sustainable practices to address climate change and its global impacts. Therefore, the court concluded that damages were not an adequate remedy in the present case. With respect to the third requirement, the court found that the balance of convenience favors granting the interim restraining order to protect KOPL's buffer zone and prevent further environmental damage. The defendants’ ongoing activities increase GHG emissions with local and global climate implications. Therefore, the court concluded that an interim injunction was warranted. The orders granted included, among other things, prohibiting the defendants and their associates from causing further environmental destruction to the buffer zones on the land and from interfering with KOPL’s activities.