By Norm Dixon
The Papua New Guinea government has foreshadowed legislation that will not only impose an inadequate settlement on tens of thousands of people demanding compensation for the massive environmental damage caused by the BHP-controlled Ok Tedi mine, but will make it a criminal offence to attempt to seek legal redress from the owners of the mine. BHP management has refused to deny charges that its lawyers drafted the draconian laws.
Ok Tedi Mining Ltd (OTML) is a joint venture whose largest shareholders are the PNG government, which owns 30%, and BHP, with 52%. The mine produces gold and copper close to the border with West Papua in the highlands, an area with an unstable geological environment and where annual rainfall is measured in metres.
For more than a decade, people living downstream from the mine on the Ok Tedi and Fly rivers and its tributaries have complained of terrible pollution and campaigned to force OTML to construct a tailings dam to contain the 100,000 tonnes of waste dumped into the river system every day. The waste includes massive quantities of sediment, rock, heavy metals, chemicals and copper concentrate. The Ok Tedi system flows into the Fly River, which then winds its way into the Torres Strait. Scientists have tracked heavy metals from Ok Tedi in sea creatures as far south as the Great Barrier Reef.
The project was originally approved on the basis that it would have a tailings dam. One was constructed but was swept away by a landslide in 1984. Ever since, BHP has refused to rebuild the dam, claiming it would be too costly and unsafe. BHP has said it will close the mine before building a tailings dam.
Writing in the June issue of the World Rainforest Report, Matthew Jamieson describes what he saw during a recent visit: "The bottom of the river continues to aggregate with mine wastes and overburden, causing it to flood out into surrounding forests ... The Ok Tedi River has become shallow and wide. The trees along its length are dead. The massive load of sediment leaves it permanently discoloured, yellow or grey ... The [copper] concentrate pipeline has burst on eight occasions, discharging concentrate into the previously unpolluted Ok Ma system. Downstream, Kewai Islanders report increased flooding of their island, poisoning of gardens, disappearance of fish and a river mouth choked with sediment."
Jamieson reports that OTML has yet to provide the 1993-94 particulate and heavy metal compliance report, which was due on March 31. BHP has doubled production since January and seems to be attempting to get out as much ore as possible before being forced to build a tailings dam or shut the mine.
In May last year, lawyers representing 30,000 river dwellers launched an action in the Supreme Court in Melbourne, demanding $4 billion in damages and an order that OTML immediately build a tailings dam. BHP and the PNG government attempted to delay proceedings and cast aspersions on motives of the legal firm involved.
The PNG government has now moved to protect the big Australian multinational's interests and send a clear message to other big companies that it is prepared to sacrifice the interests of ordinary people for the sake of profitability.
On August 3, mines minister John Giheno announced a unilateral compensation settlement for landowners worth a minimum of 110 million kina (A$110 million) over the mine's remaining 15 years life. Construction of a tailings dam was specifically ruled out.
The compensation would be paid to the discredited provincial government rather than to a trust fund nominated by river dwellers. Rex Dagi, leader of the river dwellers, slammed the "take it or leave it" deal. "This Australian company has destroyed our rivers and our lives", he lamented.
The sting in the PNG government's ultimatum is a proposed law that will forbid any attempt to contest the validity of the settlement or sue BHP or OTML in the future. The measure is directly aimed at quashing the court action in Melbourne. Anybody who initiates or assists a claim for compensation, or gives evidence in support of a claim, in any court in PNG or overseas, will be liable for criminal prosecution. It is also a criminal offence to challenge the law's constitutional validity. Those found guilty will be fined up to K100,000, and a further K10,000 for each day the action continues.
John Gordon, one of the lawyers representing the river dwellers, described the proposed law as a breach of the UN Universal Declaration of Human Rights. The law firm has threatened to take both BHP and the PNG government to the International Court of Justice. It will also refer the bill to the International Commission of Jurists. Gordon said the law would make "criminals of the citizens of another country purely for the benefit of BHP and their shareholders in Australia".
Gordon's law firm has accused BHP's Melbourne lawyers, Arthur Robinson and Hedderwicks, of drafting the bill on BHP's instructions. BHP chief executive John Prescott refused to deny the charge on August 10, saying only that the claims were "exaggerated". BHP spokesperson Tony Wells admitted BHP had "discussed a full range of issues" with the PNG government in relation to the settlement which is written into the proposed law.
Foreign affairs minister Gareth Evans refused to intervene, saying that such laws were "not common but not unusual".
Greens (WA) Senator Christabel Chamarette on August 11 called on BHP "to come clean" on its involvement in drafting the draconian Ok Tedi mine legislation. "If BHP has been involved in drafting the legislation, then the Australian government should seriously look at using the corporations power under the constitution to prohibit these types of activities ... We must prohibit Australian companies from being involved in gross breaches of human rights such as this", she said.
The legislation comes at a time when the PNG government, pushed by the Australian government and the World Bank/International Monetary Fund, is attempting to impose austerity on the PNG people. It is also attempting to undermine traditional common landownership to give big business greater access and control.