Legal conspiracy abuses the law and process to defeat landowner injunction in Ok Tedi mining case

Ok Tedi mine waste spewing into the Fly river [ Photo: ABC]

Justice Hartshorn, operating apparently in cahoots with the Attorney General Kerenga Kua and international law firm Allens, has managed to turn upside down a whole series of legal precedents, practices and rules to defeat an injunction obtained by Western Province landowners to stop the continued pollution of the Fly river by Ok Tedi Mining Limited.

While the judges ultimate decision, that the interim ex parte injunction should be lifted, may, ironically be correct, the method by which he took possession of the matter, his erroneous legal reasoning and his bulldozing of established legal principles leave a big stink hanging over his name and the lawyers who seemingly conspired with him to cook the process.

Here is a quick list of what Justice Hartshorn got wrong and how he manipulated the situation to deliver what was clearly a pre-determined outcome:

1. It is unprecedented for the National Court  to stay its own orders, and particularly one judge has no power to stay the orders of another judge. If a party wants a stay then it should appeal the original decision to the Supreme court.
2. Hartshorn has seized on the power of the National court to issue a stay on proceedings and completely misinterpreted / abused that power to pretend it gives a right to stay an order.
3. Hartshorn also relied on Supreme Court decisions and authorities that only apply in the Supreme court and which do not apply in the National court
4. The original injunction was made ex-parte and given a return date to be argued inter partes. The simple and correct procedure was for any variation in the order to made at that inter parties hearing. Instead Hartshorn has grabbed control of the case and made his own orders without any legal precedent.
5. In order to get the matter into his Court Hartshorn had to first make another erroneous decision. He ruled that the matter was a commercial matter and therefore could be transferred to his court. But the case is clearly not a commercial case in the legal sense as it is a case brought by the landowners over environmental damage and the dumping of poisons tailings into the Fly river.
6. Hartshorn heard the case and made his decision without the mining company – the central player in the litigation – even being present or having any legal representation! The company had only just been served with a notice of the proceedings but Hartshorn refused to adjourn the matter to allow them to be present and heard.

To compound this litany of abuse, Allens, the legal firm instructed by Kua to appear for the State of Papua New Guinea, are also the long servicing legal representatives for Ok Tedi Mining Limited – putting them in a gross conflict of interest situation where they are acting for the regulator in a case brought by the landowners for gross environmental damage caused by another of their clients.

Even worse, there is other litigation currently before the courts in Port Moresby where Allens are acting for Ok Tedi Mining Limited in a matter instigated by the company AGAINST the Minister for Mining, the Minister for Finance and the State.

Clearly these big international lawyers have no conscience or appreciation of common legal ethics… but at the end of the day in this sorry drama it is the poor people of Western Province who continue to suffer while the fat cats in their air conditioned city offices count their ill-gotten gains.