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The Singapore Court of Appeal on 2 December 2022, issued its written grounds for upholding the High Court (General Division)’s decision in Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others  SGHC 205. The appeal was successfully resisted by the Dentons Rodyk team led by Mark Seah, Co-Head of the Litigation Practice and comprised Andrea Gan, Martin See, Alexander Choo and Philip Teh. TSMP Law Corporation’s Mr Adrian Tan and Dr Tang Hang Wu acted for the Appellants.
The Appellants, on behalf of communities affected by mining related environmental damage, brought claims against Singapore company, PNG Sustainable Development Program Ltd (the “Company”). They sought as principal relief, payment of its US$1.48billion fund that had been established for the sustainable development of Papua New Guinea. The Court of Appeal in dismissing the appeal, rejected the notion that the Company owed fiduciary duties to the affected communities to ameliorate the environmental damage or that any part of the fund, was held on trust for them. The Court outlined difficulties with the appellant’s claims, holding: “The considerable difficulties the appellants faced at first instance, in their claim that they were owed fiduciary duties, had not been overcome and so continued to hinder their position in the appeal.”
The Court of Appeal’s Grounds of Decision can be found here.
We would be happy to provide quotes on the case or the wider environmental/ESG issues that it throws up.
The various stakeholders including the Papua New Guinean Government and mining company BHP, had at the end of 2001, sought to balance the significant economic and social benefits that would be brought about by the continued operation of the Ok Tedi Mine, with their environmental concerns, when BHP exited the mine in 2002. As part of the exit arrangements, BHP’s majority shareholding in the mining operator, Ok Tedi Mining Limited, was transferred to the Company. The Company would then use the dividend stream from those shares, for sustainable development purposes to advance the welfare of the Papua New Guinean people, particularly those in the Western Province. The Company has been doing so, but has in recent times, nonetheless faced claims in litigation (earlier bought by the then prevailing PNG Government as the Independent State of PNG) and more recently, via this present matter. Dentons Rodyk has successfully acted for the Company to resist these claims.
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About Dentons Rodyk
Dentons Rodyk is one of Singapore’s Big Five law firms, with a team of around 200 lawyers offering clients a full suite of legal services necessary to do business locally and globally. With over 160 years of establishment, consistently ranked highly in leading publications, we pride ourselves on providing the highest quality advice to our clients while maintaining strong working relationships with key public sector agencies and leading organisations in the private sector. Our combination with global law firm Dentons, makes us part of the world’s largest law firm with 20,000 professionals in over 200 locations in more than 80 countries.
Designed to be different, Dentons Rodyk can help you grow, protect, operate and finance your business. Our polycentric and purpose-driven approach, together with our commitment to inclusion, diversity, equity and ESG, ensures we challenge the status quo to stay focused on what matters most to you.
The first global pan-ASEAN law firm, Dentons ASEAN has an established history in Indonesia, Malaysia, Myanmar, Vietnam and Singapore and will continue to grow our presence through combinations with exceptional local firms across the ASEAN region and help clients navigate change wherever they are located.
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Singapore, 2 December 2022