Morua v. China Harbour Engineering Company, Ltd. (Papua New Guinea)
Papua New Guinea
Papua New Guinea Court Upholds Rights of Families in Laloki Bridge Case, Recognizes Environmental Impact Concerns
Credit: Michael Workman, stock photo ID 1449646614
Casebook Info
In 2015, Papua New Guinea enlisted the China Harbour Engineering Company (CHECL) to reconstruct the Laloki Bridge. Families residing nearby relied on the adjoining land for residence and livelihood through agriculture. Alleging worsening conditions, the families accused the Defendant of bypassing an Environmental Impact Assessment (EIA), trespassing, unlawful land conversion and inflicting severe environmental harm. The Court dismissed the Defendant’s motion and acknowledged the plaintiffs’ right to pursue suitable claims for the enforcement and protection of rights. Embracing the right to a healthy environment (R2HE), the Court emphasized that any action harming the environment could encroach upon the fundamental right to life.
Year Filed
2019
Year of Most Recent Ruling
2020
Year of Final Ruling
2020
Jurisdiction
Papua New Guinea
Court Name
National Court of Justice
Plaintiff(s)
Buni Morua and others
Ruling On
Merits or Procedure
Respondent(s)
China Harbour Engeneering Company (PNG) limited and others
In 2015, the Papua New Guinea Department of Works and Implementation contracted CHECL for the reconstruction of Laloki Bridge. Nearby locals, reliant on the land for their livelihoods, faced substantial environmental harm, including construction dust and chemical waste exposure. Seeking redress, the families engaged the company and the Conservation Environmental Protection Authority (CEPA) to investigate and assess the damage. In 2018, CEPA confirmed that no EIA was conducted and that CHECL lacked the requisite environmental permits mandated by domestic laws.
When CHECL refused cleanup, the affected families sought compensation. They (plaintiffs) sued CHECL and the State (defendants) in 2019. The defendants moved to dismiss the case, citing inadequate cause of action and lack of standing. However, the Court rejected the motion, affirming the right under s. 57(1) of the Constitution to approach the Court for rights enforcement or protection. As the plaintiffs’ claims lacked proper articulation, the Court acknowledged their standing but denied a default judgment. The claims required reevaluation to establish factual and legal grounds for assessing the damages incurred.
The Court extensively analyzed constitutional rights, citing international jurisprudence recognizing R2HE. It concluded that any human activity that adversely impacts “ the environment no doubt, gives rise to the risk of environmental damage which could give rise to a possible breach of the fundamental right of, right to life which is dependent on a safe and clean environment.”
s. 57(1) & Flexible Standing
The Constitution allows interested parties to have standing in court when the fundamental rights of others are directly infringed, even if they themselves are not directly affected.
s. 35
The Constitutional provision enshrines the right to life, which the Court interpreted as requiring and incorporating R2HE.
“’Life’ means something more than mere animal existence.”
The Court articulated that the right to life encompassed more than just physical existence; it meant a life of quality, health, and access to a healthy environment.
Plaintiff Strategies & Court Best Practices
Using an established domestic body of law
While the Court referred to international and foreign interpretations of the right to life, health, and the environment to explore its scope, it resolved the standing issue by examining domestic safeguards outlined in the Constitution.
Section 19(3) of the Constitution delineates who may approach the Court for constitutional queries, granting standing to applicants with a substantial interest in the matter. The judiciary of Papua New Guinea, considering local development and economic factors, refrains from limiting opportunities for interest groups to challenge unlawful state actions or breaches of public duty, especially when affected individuals lack access due to resource constraints. Thus, anyone committed to upholding the Rule of Law has the right to appear before the Court to safeguard and uphold constitutional rights.
Section 57 of the Constitution envisages judicial intervention when individuals face actual, imminent, likely or reasonably probable breaches of their rights. These characteristics were evident, granting the plaintiffs the necessary standing for the Court to address the alleged harms.
Emphasizing international developments
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
Emphasizing the State’s duty to regulate or its failure to observe its due diligence obligations
The Court’s interpretation drew upon international and foreign domestic law developments. Section 35 of Papua New Guinea’s Constitution guarantees the fundamental right to life, a concept the Court interpreted as encompassing more than “mere animal existence.” It embraces both physical existence and a decent quality of life, guaranteed by a healthy environment.
The Court referenced various international agreements, like the 1972 Stockholm Declaration, statements from the UN Special Rapporteur on human rights and the environment and legal precedents such as the Dutch Urgenda Foundation case. Notably, the Court relied heavily on Indian constitutional law and interpretation. India’s Constitution includes the ‘right to life,’ which its Supreme Court and National Green Tribunal interpreted to include R2HE, making it an affirmative obligation for the State to safeguard and prevent environmental harm.
Subsequently, the Papua New Guinean Court inferred that any human activity posing environmental risks could infringe upon the right to life, which necessitated a clean and secure environment. Therefore, the government was bound to legislate, regulate, monitor and evaluate activities that might detrimentally impact the environment. While CHECL was the contractor, the bridge reconstruction was a state project, and the State failed to issue the necessary permits mandated by the Environmental Act of 2000. This failure constituted a breach of its duty to prevent environmental harm, violating the affected individuals’ right to life and R2HE.
Take Aways
While the Court found the plaintiffs’ cause of action against the defendants insufficient, it seized the opportunity to elucidate the scope of and the State’s responsibilities concerning R2HE. Expanding the right to life to encompass R2HE, the Court highlighted its significance for upholding constitutionally protected rights. This case exemplifies how states can assimilate and be influenced by legal progressions beyond their jurisdiction, even if they are not binding. It underscores that even if individual plaintiffs must revise their claims and do not secure a victory, there can still be a positive impact on the development of R2HE jurisprudence.
Terms
Element
Non-toxic Environments
R2HE includes protection against toxic environments among its substantive elements, and recognizes the entitlement of individuals and communities to live in environments free from harmful pollutants, toxins and hazardous substances. The right provides that governments and businesses should apply a human rights approach to regulations, legislation, policies and actions related to the production, import, sale, use, release and disposal of substances that may harm the environment or human health. Toxic pollution may include contamination of the land, air and/or water.
Element
Pollution
R2HE encompasses protection against pollution through its substantive elements – particularly the elements of Non-Toxic Environments, Clean Air, Safe and Sufficient Water and Healthy Biodiversity and Ecosystems – because pollution in excess of a certain standard may compromise the “healthy environment” to which all individuals have a right. Individuals are entitled to live in environments that are devoid of various forms of harmful pollution, including harmful contaminants, emissions and pollutants. Consequently, R2HE emphasizes the need for clean air, water, soil and surroundings that are free from contaminants detrimental to human health and well-being. It stresses the obligation of states to take action to prevent pollution. ‘Pollution’ may refer to air, water, marine, noise and/or chemical pollution.
Element
Procedural Elements / Components
R2HE encompasses and guarantees a range of core procedural rights. Corresponding obligations include the duty to: (i) ensure access to environmental information, (ii) enable public participation in environmental decision-making, (iii) guarantee access to justice and effective remedies, and (iv) mandate the execution of Environmental Impact Assessments prior to the commencement of potentially impactful operations or activities.
Element
Safe Climate
R2HE includes a safe climate among its substantive elements. A safe climate is one where the adverse effects of climate change are mitigated to safeguard fundamental human rights, such as the rights to life, health, food, water, housing and R2HE. While there isn’t a universally recognized and legally binding "right to a safe climate," there is a growing movement advocating for the recognition of such a right.
Strategy
Emphasizing international developments
Referencing or examining recent international legal developments related to R2HE in order to support the protection of R2HE. International developments may include emerging case law, policy evolution, state practice, regional agreements or international treaties, among others. Commonly referenced international developments include, for example, the Paris Agreement and the UN Resolutions on R2HE.
Strategy
Emphasizing the State's duty to regulate or its failure to observe its due diligence obligations
Invoking a government’s affirmative obligations under national and/or international law to regulate and implement policy to advance and monitor the protection of R2HE. One common instance of this strategy appears in the climate change context, where a plaintiff might argue that the government has taken insufficient action to mitigate climate change or reduce emissions. Another common context is that of corporate pollution, which might prompt a plaintiff to argue the government did not do enough to ensure a polluter’s compliance with environmental standards.
Strategy
Using an established domestic body of law
Invoking well-established national laws, norms and/or legal principles in support of arguments related to R2HE. Where R2HE is present in a country’s constitution, the constitution will serve as the primary authoritative source for the right. Other, secondary sources of established domestic law commonly include statutory law and requirements governing public participation and/or the assessment of environmental risks. Environmental principles enshrined in domestic sources of law – for example, the precautionary principle – may also be emphasized to further the protection of R2HE.
Cause of Action / ‘reasonable’ CoA
A Cause of Action describes the legal basis on which a plaintiff or petitioner brings a claim in court. A cause of action requires something more than a mere purported wrongdoing, and often entails additional requirements such as the legislative or regulatory creation of a private (or individual) right to bring a certain action. The phrase ‘reasonable cause of action’ arises frequently in legal disputes because defendants will often respond to a plaintiff’s allegation by arguing the plaintiff has failed to articulate either the substance of their claim or the appropriate grounds furnishing an opportunity to sue on the basis of that claim (i.e., has failed to state a ‘reasonable cause of action’).
Democratic Rule of Law
Rule of Law refers broadly to the principle that states are bound to act in substantive accordance with their own laws and acquired obligations, and are likewise obliged to pursue and protect the full realization of their citizens under those laws. This critical principle implies the fidelity of a government to those duties, which includes consideration of the processes, structures and institutions mandated with upholding the law in various ways. Rule of law is closely linked to principles of democracy, which it advances and with which it is intertwined. ‘Democratic rule of law’ can therefore be understood as the abidance of a government and all its citizens to norms and laws governing limits on authority, public participation in decision-making, civil and political rights and many other facets of a well-functioning democracy.
Environmental Impact Assessment
A process used in environmental management and sustainable development to evaluate the potential environmental consequences or impacts of proposed projects, policies, plans, or developments before they are carried out. The primary goal of an EIA is to identify, predict, and mitigate any adverse effects that these activities might have on the environment. It often involves modeling potential harms and exploring alternatives, if any, to avoid them.
Standing
Standing, sometimes referred to as ‘legal personality,’ denotes the capacity of a given party to bring their claims in a court of law. Often, to achieve standing, a plaintiff must demonstrate a remediable and ‘individualized harm’ linked to the actions or inaction of the defendant(s). If a party does not have standing, a court will not review its claims. Assuming no other barriers, a court will review the claim of a party that does have standing.
