Human Rights Dialogue (1994–2005): Series 2, No. 2 (Spring 2000): Litigating Human Rights: Promise v. Perils: Articles: An Incomplete Victory at Ok Tedi

Apr 6, 2000

A legal claim brought by 30,000 indigenous landowners from Papua New Guinea against Australia’s largest corporation, Broken Hill Proprietary (BHP), captured the attention of the media and the Australian public for two years during the 1990s. Since 1986, BHP had dumped 80,000 tons of tailings and other wastes from its Ok Tedi copper and gold mine into the Ok Tedi River, located in Papua New Guinea’s remote, mountainous rainforests. The lawsuit addressed the resulting environmental damage, including widespread deforestation, the destruction of the local waterways, and the loss of wildlife habitats. A negotiated settlement worth approximately $500 million in compensation and commitments to tailings containment was reached in June 1996.

The Ok Tedi case is widely regarded as one of the most successful examples of a foreign tort claim made on environmental grounds against a multinational corporation. Although the case was not framed explicitly in human rights terms, it endorsed the right to a safe environment and established that a subsistence economy is entitled to protection under the law. The suit also brought substantial financial benefits to the river communities and has kept an international spotlight on the need for long-term solutions to the problems caused by the mine.

In the last year, however, serious problems with the settlement have emerged, leaving local communities frustrated and angry. The settlement agreement stipulated that BHP would implement the most practical tailings containment option following a review of the mine’s environmental impact and the alternative technologies needed to limit pollution. But in August 1999, BHP announced that none of the proposed tailings containment options would substantially mitigate the destructive processes already in train. The conditions downstream from the mine will worsen over the next 40 years, they said, regardless of whether the mine closes or continues to operate. The CEO of BHP publicly acknowledged that the impact of the mine was far greater than previously anticipated, and that its continued operation is incompatible with their corporate environmental values.

Since their August announcement, the company has succeeded in framing the debate as if there were only two options: that the mine stay open and continue to pollute the river, or that BHP close down its operations, causing extensive social and economic hardships at both the local and national levels. A spokesperson for the mine told me, “The social costs of closing down the mine without establishing a sustainable economy based on agricultural development are far greater than the ecological costs of continued dumping into the river.”

The Ok Tedi Mine is the economic engine of its region and the only source of support for rural development. Yet the mine has destroyed the ecosystem that once supported the subsistence economy, and the government has largely squandered revenues from Ok Tedi that were supposed to enhance local economic opportunity. The primary concern of the affected community is survival. Its members see no alternative but to allow the mine to operate for another decade, in the hope that they may yet reap some of the benefits of development, even though the mine’s destructive impact will continue unabated.

Rex Dagi and Alex Maun, who grew up in villages along the lower Ok Tedi River, are the primary plaintiffs in the lawsuit and internationally recognized environmental activists. In a recent interview, they summarized their predicament to me: “What is growing [along the river banks] now? Just pitpit, elephant grass, and softwood trees. Why protect them? They can grow anywhere. If we were talking about hardwood forests, that would be different. But now? It is not worth protecting what remains here.” Dagi went on to explain, “If it is safe [for people], then they should continue to dump tailings into the river [and keep the mine open]. They will never fix this river––it is already dead. They should give us money instead.” Maun added, “We want fortnightly compensation payments. When we say fortnightly, it means survival. We need an alternative means of subsistence.”

But local priorities are not necessarily given prominence by the global alliance of journalists, lawyers, anthropologists, and NGOs that originally challenged BHP and prompted the settlement. Despite an initial flurry of interest after the results of the environmental inquiry were announced last August, the media have been largely silent. The lawyers for the plaintiffs are waiting for BHP to commit to a position on the future of the mine before determining whether there are legal grounds to revisit the case in the Victoria Supreme Court.

NGOs in Papua New Guinea and abroad are preparing for another battle with BHP, although there is debate about the best course of action. One Greenpeace-Pacific lawyer, who was party to the original lawsuit, continues to stress environmental issues and the precedent set by the case. “What legacy will we provide for future generations of Papua New Guineans?” he asked me. “How does this case shape policy in the minerals and petroleum sector? If we disengage now, there is no chance of affecting other mining projects in Papua New Guinea.”

Other activists have stressed the need for an independent review of the studies produced by the mine and an open debate on the environmental future of the region. NGOs have also called upon BHP to develop and make public a mine closure plan that specifies its financial commitment to rehabilitation when the mine closes–whether this year or in a decade’s time–after the ore has been exhausted.

My concern is that all parties involved continue to emphasize external intervention as the only solution. Not enough attention has been given to the possibility that traditional skills and knowledge of local resources might provide the affected communities with alternatives to their dependence on mining revenues. Moreover, by introducing a capitalist model of large-scale economic development to the region, the mine has restricted the communities’ ability to envision alternatives to external intervention. Thus the communities’ response to their problems has been confined to the terms of monetary compensation.

Negotiations with BHP, initiated during the settlement of the lawsuit, have also limited local consideration of alternatives. Because of its position as gatekeeper for the distribution of settlement funds, BHP is now regarded by local residents as a partner in their development. Cooperation with the mine has precluded the formulation of a more substantial critique of BHP’s position. Why, for example, should a company continue to benefit from operations that are supposedly incompatible with its corporate values? If the mine must stay open, why not return all of the profits that it earns to the communities damaged by its operations?

The people living downstream from the Ok Tedi Mine may have won their legal battle, but they are dissatisfied with the outcome. Their experience suggests that litigation, as a form of political action to protect human rights, may not achieve social justice on its own. Participation in legal proceedings and negotiations with the mine may have even perpetuated community members’ dependence on external intervention and constrained their ability to imagine an alternative to their situation. As the Ok Tedi case sadly demonstrates, policy reforms and legal precedents do not necessarily translate into improved conditions for the peoples whose rights have been violated.

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