Central

East New Britain

Eastern Highlands

Enga

East Sepik

Gulf

Hela

Bougainville

Jiwaka

Northern

West Sepik

Milne Bay

Morobe

Southern Highlands

Madang

West New Britain

Manus

Western Highlands

National Capital District (Port Moresby)

Western

New Ireland

Chimbu

Papua New Guinea

90% cut in GHG by 2050 against a 1990 baseline

25% renewables of consumed electricity by 2030

The Plaintiff is Mayur Renewables, a company intent on developing renewable energy in Papua New Guinea. The Defendants were Minister Mirisim (current Minister for Forests), Faith Barton (Chairperson of the National Forest Board) and the Papua New Guinea Forest Authority.  In January of 2022, Mayur Renewables were granted permits to conduct carbon offset projects in the Western province of Papua New Guinea by then Minister for Forests Minister Schnaubelt. In May of 2022, the new Minister for Forests, Minister Mirisim, cancelled (or attempted to) cancel the permits granted to Mayur Renewables. The Plaintiff therefore sought, among other reliefs, an order quashing Minister Mirisim’s decision to cancel the permits. The Court granted an order quashing Minister Mirisim’s decision to cancel the Plaintiff’s permits on the following grounds. 

The Defendant argued that the Forestry Act, the Act empowering ministers to grant permits for forest-related projects, contained no provision for the grant of forest carbon concession trading permits. The Court ruled that this justification was a mere afterthought as such a reason was not given at the time the permits were cancelled and therefore fell foul of the duty to give reasons at the time of pronouncing the decision enshrined in Papua New Guinea’s law. The Court also opined that the decision to grant the permits in the first place was well founded because such a decision took account of and was in line with the need for urgent actions to be taken to prevent further deforestation and to deal with the climate change emergency. Such an argument was further supplemented by the preamble of the Forestry Act 1991 referring to conserving the Nation’s forest resources. The Court viewed this objective as the most important one stated in the Act, especially in light of the UN’s proclamation that climate change requires drastic action and is the defining issue of our time.

Moreover, the Court ruled that the decision to cancel the permits was Wednesbury unreasonable due to, among other things, the carbon offset scheme being calculated to sustainably manage the forest in light of the climate emergency. This emergency calls for urgent and immediate steps and the cancellation would serve as a retrograde step in the fight against climate change. In support of this proposition the Court cites the first 5 principles in the IUCN World Declaration on the Environmental Rule of Law and suggests that the previous decision to grant the permits were more in line with such principles.

The Court also found that Minister Mirisim failed to follow the proper process for cancelling the permits such that he failed to consider the serious climate related challenges being faced globally as well as Papua New Guinea’s international and domestic obligations (eg. the Paris Agreement) in resepct of the climate change risks currently being faced.

Furthermore, the Court further found that Minister Mirisim’s decision was vitiated by bias due to his bias toward logging and against carbon offsetting projects. This was evidenced by his cancellation of the permits without due process, his reasoning for the cancellation being given as afterthoughts long after the cancellation and his general pro logging bias.

Therefore, the Court granted an order for certiorari quashing Minister Mirisim’s decision to cancel the Plaintiff’s permits and also ordered a permanent injunction preventing the Defendants from cancelling the Plaintiff’s permits (except in very specific instances) or taking any other action that will seriously affect the Plaintiff’s implementation of its projects. The Court also reiterated restraining orders it made in previous rulings, such as in Robin Kami V Aset Meriah, wherein an immediate ban was ordered on the further grant of Timber permits and logging in Timber Rights Purchase Areas until the relevant authorities fully comply with the various orders of the Court including but not limited to providing detailed reports of all logging and climate changing activity (which as yet has not been complied with).

On December 18, 2020, the Managing Director of the Conservation and Environmental Protection Authority issued an environmental permit for the Wafi-Golpu Mining Project as a precondition for the issuance of a special mining lease. On XX, the plaintiffs - the Morobe Provincial Government on its own behalf and on behalf of the people of Morobe - applied for a stay of the permit arguing that there was no proper review and consultation as required in the constitution and that the decisions were unreasonable as they would create irreparable environmental damages. The defendants argued for a dismissal of the application for stay. 

On September 20, 2021, the judge granted the application for stay. The judge held that the plaintiffs and other members of the public were denied natural justice as the Minister failed to provide fully the information required and in easily understandable language or incorporate the matters raised in consultations or review meetings. The defendants failed to consider the climate change goals that informed the adoption of the Environment Act when issuing the permit. There was a risk of irreparable damage as the defendants failed to demonstrate how the environmental impact assessment and the permit meet the requirements of the Act. Furthermore, the permit was granted for 50 years, 20 years more than the estimate life of a mine of 30 years. Noting the global impacts of greenhouse gas emissions, the judge noted that the parties did not provide any information on whether the environmental impact assessment factors levels of CO2 emissions and impacts on local and global environment and proposed measures to minimize such emissions. As part of an EIA analysis, the court noted that the assessment should include a question on "What  climate  change  related  risks  have  been  identified  and  what adaption and mitigation programs if any have been built into the EIS and  the  deep sea tailings placement (DSTP)  and  how  will  that  be  monitored  and  reviewed  and enforced?" The judge thus issued an order of stay of the two decisions pending a hearing and determination of the substantive review. 

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.

Papua New Guinea

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