PAPUA NEW GUINEA - ENVIRONMENTAL REGULATIONS
Papua New Guinea (PNG) is a large group of islands located between the Coral Sea and the South Pacific in the Oceania region. The country’s territory includes half of New Guinea island, which is the second largest island in the world after Greenland. PNG is located just south of the equator; its location on the so-called Ring of Fire means the country is highly susceptible to natural disasters such as earthquakes, volcanic eruptions, landslides and tsunamis which cause frequent devastation in the region.
The terrain is primarily mountainous, with great areas of rainforest covering large portions of the country. Swamplands can be found in the southern coastal regions and alongside PNG’s many lakes and rivers. The country has a tropical climate; temperatures vary little throughout the year though two separate monsoon seasons occur, one in the northwest that runs from December to March and the other in the southeast, which occurs between May and October.
PNG is recognised for its biodiversity. The island of New Guinea, which is divided between PNG and the Indonesian province of West Papua, is home to the third largest expanse of tropical rainforest in the world after those found in the Congo and Amazon Basins. Around 5% of the world’s species are to be found on the island and, according to a study by the WWF, over 1,000 species were discovered in New Guinea from 1998 to 2008 alone. Amongst PNG’s unique fauna are the Queen Alexandra’s birdwing – the largest butterfly in the world, the Papua monitor – one of the longest lizards in the world, and the hooded pitohui – just one of the species of poisonous bird found in the country.
Deforestation from illegal logging and pollution as a result of mining activities are amongst key environmental concerns.
PRINCIPAL LEGISLATION AND REGULATOR
The Environment Act 2000 (EA), the Environment (Prescribed Activities) Regulation 2002 (EPAR), the Environment (Permits) Regulation 2002 (EPR) and the Environment (Fees and Charges) Regulation (EFCR) 2002 form the legal framework for environmental assessments in PNG. Also relevant are the Mining Act 1992 (as amended) (MA) and the Mining Regulations 1992 (as amended) (MR). The EA contains a general requirement that persons shall not carry out activities that cause or are likely to cause environmental harm unless they take all reasonable and practicable measures to prevent or minimise such harm (s. 7(1), MA).
The Minister for Environment, Conservation and Climate Change (Environment Minister) who heads the Department of Environment and Conservation (Department), has overall responsibility for environmental policy, as well as the approval of various matters provided for under the EA (s. 14, EA). That said, it is the Director of Environment (Director) who is responsible for the administration of the EA, the issuance of environmental permits and ensuring that Environmental Impact Assessments (EIA) are undertaken in accordance with the EA (s. 16, EA). An Environment Council (Council) is responsible for making recommendations and giving advice to the Minister and Director on various aspects of the EA and EIA process (s. 19, MA). The EA also established an Environment Consultative Group (ECG), to advise the Council on certain environmental policies, assist the Director in the review of Environmental Impact Statements (EIS) and generally provide advice on environmental issues (s. 26, EA).
The application for a Mining Lease (ML) must be accompanied by a proposal for operations (s. 42(b)(i), MA). In making its assessment of the proposal, the Mining Advisory Council (MAC) will consider whether the proposal provides adequately for the protection of the environment, in which case evidence that the applicant has complied with the requirements of the Department will be conclusive proof of such protection (s. 43(1)(ii), MA).
In PNG, an Environmental Permit (EP) is required for all Level 2 and Level 3 activities (s. 44, EA) and it is a requirement of the EA that an EP be obtained before a permit or licence for such activities is granted by another authority (s. 46, EA).
Environmental Impact Assessments
Pursuant to Section 50, EA, an EIA shall be required as a mandatory part of the permitting process for Level 3 activities (s. 50, EA). Level 3 activities are listed under Schedule 2, EPAR and include mining activities which require a Special Mining Lease (SML) and mechanised mining under a ML involving chemical processing of more than 50,000 tonnes per annum (see ‘Sub-Category 17, Schedule 2, EPAR).
Level 2 activities, which include mechanised mining under a ML involving chemical processing of no greater than 50,000 tonnes per annum and mechanised mining under a ML involving non-chemical processing of more than 50,000 tonnes per annum (see ‘Sub-Categories 2 & 7, Schedule 1, EPAR for a full list) may also require an EIA as part of the EP process. This will only be the case where the activity:
- involves an industrial or manufacturing process which has not previously been used in PNG; or
- is specifically the subject of obligations under any international treaty, convention or instrument which PNG has ratified; or
- poses a threat of serious environmental harm
and the Minister, on the recommendation of the Council, determines that the activity relates to matters of national importance (s. 50(2), EA). In such cases the project proponent will receive notice from the Director that an EIA is required.
The requirements for the EIA are clearly listed under Section 51, EA. Firstly, an inception report must be submitted listing the issues which an EIS will cover. Within 60 days of receipt of the inception report the Director will either approve the report (where satisfied that it contains all the relevant issues relating to the potential impacts of the activity on the environment) or refer the inception report back to the proponent for amendment and re-submission (s. 52, EA). Following approval of the inception report, the proponent shall prepare the EIS (s. 53, EA). The EIS must then be submitted to the Director for review. Within 30 days of receipt of the EIS, the Director will notify the proponent of the time period required for review, though note that this may be extended at any time (s. 54, EA). During the review stage the Director can take numerous actions including calling a conference of interested persons, referring the EIS to the ECG, or appointing a committee to conduct a public inquiry (s. 54(4), EA). Should there be a provincial environmental committee, it must also be given the opportunity to review the EIS and submit comments to the Director (s. 54(5), EA). All EIS must be made publicly available for review, in a manner and for a duration determined by the Director (s. 55(1), EA). As part of the public review, a proponent may be required to make a public presentation to affected persons (s. 55(2)(c), EA). The Director may request that the proponent amend the EIS to address any issues raised during the assessment or the public review (s. 55(6), EA).
Where the Director is satisfied that:
- The EIS contains an adequate description of the physical and social environmental impacts of an activity; and
- All reasonable steps will be taken to minimise environmental harm; and
- The activity will be carried out in a manner which is consistent with all environmental policies and regulations,
the EIS shall be accepted (s. 56, EA).
Following acceptance, the EIS shall be referred to the Council for review (s. 57, EA). Within 90 days of referral, the Council shall accept the EIS where it is satisfied with the same standards as those listed above (s. 58(1)(a), EA) or reject the EIS and advise the proponent to amend and resubmit (s. 58(1)(b), EA). The factors which the Council shall consider in reaching its decision are clearly provided for under Section 58(2), EA, though note that several of the criteria are subjective e.g. the suitability of the applicant to hold a permit. Where the Council rejects the EIS, the proponent shall be given the opportunity to make representations (s. 58(5), EA).
The recommendation of the Council shall then be passed on to the Minister who has the discretion to approve or refuse to approve the activity (s. 59, EA). Such decision must be reached within 28 days (s. 59, EA). Where approval is refused a Working Committee shall be established to provide specialist advice (see ss. 59 & 24, EA).
The application for the EP must be submitted by the proponent, with the most senior person responsible for the supervision and management of the activities named in the application (s. 60, EA). Applications for activities that require an EIA (see above) shall not be accepted until an EIA has been conducted (s. 62(1), EA).
The application for an EP must be accompanied by:
- Comprehensive details of the processes involved in carrying out the activity;
- A statement of the risks of environmental harm;
- A description of the sources and nature of any contamination which is likely to occur;
- The steps proposed to minimise or prevent environmental harm;
- A map of the site;
- Any other information required by the Director (see r. 5, EPR; see also r.6 EPR).
The Director shall accept or reject the application in accordance with Reg. 8, EPR.
Following acceptance of an application and upon receipt of the requested copies, the Director shall, within 14 days, provide such copies to the relevant authorities as listed under Reg. 9, EPR. Authorities will be given 28 days to provide advice and make submissions to the Director (r. 9(2)-(3), EPR). The Director shall also publish a notice in a nationally circulated newspaper and via radio advising any interested persons to make written representations to the Director and proponent within 21 days of the notice and / or view the application (r. 10(1), EPR). Where objections are made that are not “…frivolous, vexatious or irrelevant…” and the Director is of the opinion that there is a real risk of environmental harm, a conference may be held (r. 11, EPR). The conference must be held within 21 days of the expiry of the period for making written representations and the applicant may be required to make a presentation (r. 11, EPR). The Director / Council may also require the engagement of an independent expert to consider certain issues relating to the application (r. 13, EPR). Note that this process (i.e. Regs. 9 – 13, EPR) does not apply where an EIA has been completed and approved by the Minister nor where an activity falls under Sub-Category 2, Schedule 2, EPAR (r. 12, EPR; see also Schedule 2, EPR).
A decision approving or refusing the EP must be made within 30 days if it concerns a Level 2 (Category A) or Level 3 Activity or 90 days if it concerns a Level 2 (Category B) Activity (r. 14, EPR). Extensions on the time limit are possible but limitations apply (r. 14, EPR). The factors the Director will consider when reaching a decision on the application are clearly provided for under Section 65, EA, though, as with the EIA process, several criteria are subjective. The Director must also be satisfied that the applicant will abide by the conditions of the permit (s. 65(1), EA). Permits may be issued subject to such conditions considered necessary or desirable by the Director to achieve the aims listed under Section 66, EA. The decision to grant a permit shall be published in accordance with Reg. 16, EPR.
Persons who are dissatisfied with a decision of the Director in relation to an application or activity may apply for a review by the Council (s. 68(1), EA). The application for review must be filed within 21 days of notice of the decision and the decision may or may not be suspended until a review has been completed (s. 68(2), EA; see also s. 69, EA). The subsequent decision of the Council may also be appealed to the National Court within 28 days, though this right is limited to an appeal on a question of law (s. 68(4), EA).
The EP confers on the holder the right to carry out the activities specified in the permit in accordance with any conditions imposed (s. 44(3), EA). The duration of the EP shall be specified in the terms; in the case of Level 2 (Category B) and Level 3 activities the duration shall be at least 25 years unless a shorter period is requested by the applicant and in all other cases the duration shall not exceed 10 years (r. 16(c), EPR). EPs may be renewed, transferred, surrendered or amended in accordance with the terms of Regs. 18 – 24, EPR. Fees for EIA and EP are set out under Schedule 1, EFCR.