Papua New Guinea removes land owner rights

Published by MAC on 2010-06-04
Source: PostCourier, IRIN, Statements

Indigenous people lose out on land rights

IRIN

1 June 2010

PORT MORESBY - Papua New Guineas indigenous people have lost their right to challenge developers and the state over deals involving their land and resourccoes.

Numbering some six million people, Papua New Guineans - comprising hundreds of ethnic groups - own 97 percent of the countrys land.

This raises huge human rights issues, Tiffany Nonnggor, a lawyer and human rights advocate, told IRIN in Port Moresby.

While the rest of the western democratic world has spent the better part of the past 50 years trying to restore indigenous property rights, this government has just stripped its most vulnerable citizens, those in the remote rural areas where the projects are, of their rights with no consultation and debate, let alone compensation, she said.

It is obvious that the government has decided that development of any type is good and that any obstacles to resource projects must be swept aside, wrote the countrys English daily Post Courier on 31 May.

National interest

On 28 May, the countrys parliament amended sections of the Environment and Conservation Act 2000, which rules on major resource projects in the Pacific island nation.

The amendments give the director of the Office of Environment and Conservation wide-ranging powers to grant various certificates relating to environmental plans submitted by investors, in addition to provisions that complying certificates issued by the director will be final and may not be challenged or reviewed in any court or tribunal, except at the instigation of an Authorization Instrument.

PNG Minister for Environment and Conservation Benny Allen, when introducing the amendments, said the national interest was paramount and therefore the law needed to be changed.

Disputes over land and resources are not uncommon

The opposition is up in arms over the amendments, saying the changes were open to legal challenge to determine their constitutionality.

The new laws [are] meant to protect the interests of investors at the expense of the environment and the resource owners. The new laws [are] selling [out] the rights of the people, deputy opposition leader Bart Philemon told a press conference.

Rights removed

The amendments are devastating for all landowners, not only customary ones.

The changes remove the rights that Papua New Guineans have had for years to protect their property from environmental harm and the right to sue for compensation for environmental damage and the customary rights to claim compensation for environmental harm.

Not only have they breached many sections of the constitution, they have managed to breach the international convention on Indigenous and Tribal Peoples in Independent Countries, ratified by parliament in 2000, Nonnggor said. This is the worst piece of legislation as far as human rights go that I have ever seen in a supposed western democracy.

Disputes concerning land and resource rights between indigenous groups, the government and corporate entities are not uncommon in PNG.

While figures vary significantly, more than 5,000 people lost their lives on the island of Bougainville off the east coast of PNG between 1989 and 1999 following a bitter fight over compensation between Bougainville Copper Limited (BCL), an Australian-owned mining company, and the hundreds of indigenous landowners it displaced in Panguna.

The conflict escalated into a bloody civil war between members of the indigenous population and government troops.

At present, there are claims of environmental damage caused by the Ok Tedi copper mine in the countrys Western Province, the Kutubu oil project in the Southern Highlands, the Porgera gold mine in the Southern Highlands Province, the Lihir gold mine in the New Ireland Province, the now defunct Misima gold mine in the Milne Bay Province and the Tokoluma gold mine in the Central Province.

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Somare removes land owner rights

MPI Media Release

28 May 2010

The Papua New Guinea Government has perverted justice by removing the rights of PNG Nationals to challenge the governments own approvals for environmentally destructive activities.

We condemn the blatant destruction of landowner rights" said Charles Roche, Executive Director of the Mineral Policy Institute.

"These ammendments rushed through today are a dirty politcal fix from a Government that cannot comply with its own legislation."

The new section, 69B, of the Environment Act 2000 removes the right to legally challenge destructive activities.

While the details are unclear, the new section 87, with the addition of 87A and 87B, seems to allow the PNG government to approve almost anything at a political level, without due process.

This legislation is a response to land owner challenges to the Ramu Nickel mine and the environmental approval to use submarine tailings disposal for mine waste.

People expected some sort of political fix to overcome legal obstacles to the Ramu mine, but no-one expected such an all encompassing suppression of rights. It is frightening what the Somare Goverment will do to their own people, just to fast track a mine.

I would like to hear from Lihir Gold, Xstrata, Barrick Gold, Marengo Mining and Rio Tinto - Did they ask for this? Do they approve of the overturning of land owners rights? Or will they silently endorse this action by the Somare Government?

For further comment/information contact Charles Roche

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Bill will strip rights to land'

The National

1 June 2010

SCIENTISTS and lawyers say that the amendment passed last Friday in Parliament will strip Papua New Guineans of their right to their land.

It would also leave the companies or developers immune to law suits for compensation, "even if they were negligent or at fault".

The landowners, particularly of the Rai Coast district in Madang, are claiming they had been hard done by the government.

"This is the worst piece of legislation on human rights that I have ever seen," PNG Institute of Biological Research scientist Banak Gamui said.

"They have stripped the landowners of common law and customary law rights that they have had for over 10,000 years."

He said developers could not be sued for compensation.

"The action for negligence is gone.

"Reason? The developer was just doing what it had planned to do but a blow out happened.

"It does not matter if it's its fault ... so long as the company was carrying out the activity it was authorised under the permit to do - it escapes all liability for environmental damage."

Even when there are provisions for compensation provisions, he said: "Any compensation would be signed up and paid before the mining, gas, oil operation starts, provided the company predicts there will be any damage.

"If the company predicts none, not only will it pay no compensation at the beginning under a compensation agreement - but if damage occurs - negligently, intentionally or unintentionally - the company will not have to pay a toea.

"If it creates more damage than predicted at the beginning, there is no recourse."

Lawyers said if the bill was not certified, it could go back to Parliament and be changed under section 113 of the Constitution.

The landowners of the Rai Coast are the first to feel the impact of the law.

They will not be able to sue the developer CMCC of Ramu Nico over the dumping of waste into their sea.

They said the government made changes to sections of the Environment Act 2000 "to prevent landowners and concerned Papua New Guineans from "interfering' with developing project like the Ramu nickel mine and LNG in the Southern Highlands".

The landowners had petitioned the Deputy Prime Minister Sir Puka Temu and Environment Minister Benny Allan in Bongu village on April 10.

The petition deadline was yesterday.

"But the government has seen fit to insult landowners by changing the law!" landowner George Ireng said.

"This is an insult to the people of Rai Coast and all Papua New Guineans who are landowners," he said.

"Personally, I am angered by the government's actions.

"The change is a serious attack on our ability as landowners and Papua New Guineans to speak out against problems created by the actions of government and developers."

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Foreigners will exploit our land, says Memafu

The National

1 June 2010

PARLIAMENT'S passing last week of amendment to the Environment Law will allow foreigners to literally exploit and destroy our environment when extracting minerals and other non-renewable resources from our land.

And this law will wipe out most of the long-term renewable marine resources and such a law is not healthy for a developing nation like PNG.

This was the statement made by Madang community leader and director of the Melanesian Foundation, Peter Memafu.

Memafu said the amendment to the act to outlaw third party litigation that resource projects were now exposed to was not in the best interest of the people who depend on the environment as their main source of life.

With the amendment to the Environment Bill passed, it will mean that a restraining order preventing Ramu nickel will now be lifted and operations to resume.

Environment and Conservation Minister Benny Allan told Parliament last Friday that the Environment (amendment) Bill 2010 will enable holders of environment permits to comply with the standards and requirements set under their permits.

He said the amendment would also mitigate risk associated with third party litigation that resource projects were now exposed to.

Memafu said Parliament had bulldozed another constitutional amendment without carrying out any extensive consultation or analytical research into what the effects and consequences of the amendment might bring to the people.

He said the current operations had impacted the lives of the people and their environment and yet with that knowledge, the MPs had gone ahead and bulldozed the amendment through.

He said if the leaders had the interest of the people in their hearts, they would not have gone ahead and voted for the amendment, forcing the people to the dogs and making them spectators of the destructions that would take place after all the mining, oil and gas activities were over.

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Ramu landowners to challenge law

By Jeffrey Elapa

The National

4 June 2010

A LANDOWNER group opposing the Ramu nickel mine deep sea tailing placement system at Basamuk, Madang, says it is going to court to seek an interpretation of the legality of the amended Environmental Law.

The group called a media conference in Port Moresby yesterday to announce its stand concerning the law.

It wants a Supreme Court interpretation on the rights of landowners and whether their livelihood would be deprived by the amended law.

Representatives George Ireng, Sama Meilombo, Gideon Sioba and Lynette Dawo said they were not against the project and developments taking place in their area.

Rather, they were concerned about the future generation whose environment might be destroyed by the amended law.

They said the government and developers should look at other wastes disposal alternatives like bag filling, dam, and dewatering facilities.

The group said it had copies of two independent reports, which revealed the possibility of environmental damages and their effects on the lives of the people.

One of the reports is from the Lutheran church while the other one is from the Scottish Association and Marine Sciences.

Both were engaged by the government.

Rai Coast MP James Gau said the Ramu mine is important to the Papua New Guinea economy as well as the local economy because the people of Rai Coast had been neglected of basic services for the past 30 years.

Gau said so far there was no evidence to show that deep sea tailings system would cause pollution and environmental pollution.

"Critics must give us this damaging evidence to convince us that we should look for other options," Gau said.

He added that, "if they (critics) want to block the mine operating and developing in our area, then they must provide alternate source for the people of Rai Coast to earn money.

"If they cannot provide alternatives to better our lives, then they should leave us alone," he said.

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Unions slam environment law

By Jonathon Tannos

PostCourier

2 June 2010

PAPUA New Guinea trade unions are demanding the Government immediately withdraw its new environmental laws, saying it is designed to serve multinational corporations and not the nation's interest.

Under the banner of the PNG Trade Union Congress (PNGTUC), they decried what they described as the deliberate legislative sell out of the country's pristine and priceless environment for profit and gain. PNGTUC president Michael Malabag said yesterday the new legislation should be vigorously challenged because it effectively gagged the rights of Papua New Guineans to fight for protection against massive destruction of their environment and livelihood.

Mr Malabag's comments follow last Friday's passage by Parliament of amendments to the Environment and Conservation Act which effectively prevents law suits being filed against environmental destruction and damages caused by resource projects. The Government effectively used its numbers to muscle in the new amendments without giving much notice and explanation or debate on the full effects of the legislation.

The Opposition's 10 members were the only ones to vote against the Government's 73 votes.

Mr Malabag said this was the first time in the history of PNG that legislation had been deliberately designed to remove the rights of the common people to pursue fair compensation for the destruction of their environment in the interest of multinationals.

"The legislation is a total sell out of the sovereign rights and interest of the people of PNG," Mr Malabag said.

"It effectively gives a licence to multinational corporations to profit from the ruthless pillage and destruction of the pristine and priceless environment upon which generations of Papua New Guineans have drawn their livelihood from.''

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Environment bill a big concern, says Parkop

PostCourier

3 June 2010

The Government has taken absolute control to do whatever it wants with the land and environment in Papua New Guinea, a lawyer and former human rights advocate said yesterday.

NCD Governor Powes Parkop said the new amendments to the Environment and Conservation Act 2000 also allowed investors to by-pass due process and obtain from the director a certificate that on granting was absolute proof of compliance with all environmental laws, process and standards.

"This in effect is absolute powers vested in one person and is a big concern as the law also attempts to remove the powers of the court to review the exercise of such powers - As a parliamentarian, a lawyer by profession and as a person who has advocated for the rights of landowners and protection of our natural environment for the best part of my professional life prior to entering Parliament, I write to express my objection and deepest concerns at the passing of the above Bill last Friday, the May 28, 2010," Mr Parkop said in his letter to Environment and Conservation Minister Benny Allan on Monday.

"As you would have probably noticed I was not in Chamber when the vote was taken last Friday. I had left the Chamber to obtain and peruse a copy of the proposed Bill to appreciate it before I could cast my vote as I was not aware of your intention to move for the passing of the Bill that day and did not bring my copy.

"While in the process of locating a copy, Parliament had voted on the bill and passed it by a majority of 73 to 10. Having perused the proposed Bill (now law) and appreciated its content, I would have no doubt voted against the Bill had I remained in Chamber when the vote was taken," he added. He said the law effectively removed the rights of landowners and others to challenge decisions to harm the environment either under civil law, statute and even customary law.

He added that while this power was vested by the new law in the director, "as you are aware the director is none other than the Secretary of your department and this therefore magnifies the concerns about objective exercise of almost absolute powers provided in the new law that cannot be challenge by anyone.

Mr Parkop touched on many issues that provided the grounds for his objection to the new law, adding that the minister should delay the implementation of the law with a view to repealing it or amending it so that the powers of the director were not as absolute as in the present form.

"You can recommit the Bill to Parliament under s.130 of the Constitution to make alterations or amendments so that a fair law is passed rather than the current one," he said.

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Letter of Powes Parkop

Hon. Benny Allan MP,
Minister for Environment and Conservation,
Office of the Minister for Environment and Conservation,
Somare Foundation Building
WAIGANI

National Capital District

31 May 2010

Dear Honourable Minister,

SUBJECT: ENVIRONMENT (AMENDMENT) BILL 2010.

As a Parliamentarian, a Lawyer by profession and as a person who has advocated for the rights of landowners and protection of our natural environment for the best part of my professional life prior to entering Parliament, I write to express my objection and deepest concerns at the passing of the above Bill last Friday, the 28th of May, 2010.

As you would have probably noticed I was not in Chamber when the vote was taken last Friday. I had left the Chamber to obtain and peruse a copy of the proposed Bill to appreciate it before I could cast my vote as I was not aware of your intention to move for the passing of the Bill that day and did not bring my copy. While in the process of locating a copy, Parliament had voted on the bill and passed it by a majority of 73 to 10.

Having perused the proposed Bill (now law) and appreciated its content, I would have no doubt voted against the Bill had I remained in Chamber when the Vote was taken. My objection to this law is based on the following observations:

1. The law effectively places almost absolute power in the Government to decide as to  environmental permits, approvals, licenses and the standards required of permits holders while removing rights of landowners and others to challenge such decisions either under civil law, statute and even customary law. It also allows Applicants to by pass due process and obtain from the Director a Certificate that upon its granting is an absolute prove of compliance of all environmental laws, process and standards. This in effect is absolute powers vested in one person and is a big concern as the law also attempts to remove the powers of the Court to review the exercise of such powers.

2. While this power is vested by the new law in the Director, as you are aware the Director is none other than the Secretary of your Department and this therefore magnifies the concerns about objective exercise of almost absolute powers provided in the new law that cannot be challenge by anyone

3. The removal of the rights to a cause of action under new section 69B and the right to challenge the granting of a permit, approval or license etc over environmental use or discharge etc is of particular concerns given the fact that majority of our people rely heavily on the natural environment, including the sea, waterways, rivers etc for their subsistence and survival. Given the experience of Bougainville too, this is a piece of legislation that flies against our recent history that ignorance of environmental concerns can serve as a basis for major conflict.

4. The powers provided to holder or a permit under s.87B (4) and s.87C (4) also makes a total mockery of the impartially or objectivity of the whole law. These provisions provide that there can not be any review of Certificate of Necessity once granted by the Director except if the permit holder makes a request for review. How can we pass a law that takes away our rights and powers while at the same time vest powers on developers? How can we justify such a clause?

5. While the Amendments is specifically about the Ramu Nickel-Basimuk bay situation and that maybe the Governments hands were forced by the decision of the Court, it is a bad legislation in that it is not restricted to the circumstances in Ramu Nickel-Basimuk Bay Environmental issues. By this law the Government has completely changed the process, powers and granting of environmental plans, permits, licenses etc without undertaking a proper review of existing laws and the application of such laws. This law therefore is not based on any policy review but more a reaction to one specific circumstance to change the whole goal post completely for all projects past, present and into the future.

6. The passing of the amendments flies in the face of the Governments claims to be serious about protecting out natural environment, especially at the global level. While the Government can claim that it will use the powers sparingly or objectively, there is no guarantee that it will use such powers in such manner. In any event, in the future such powers can be used and misused, if not now.

7. The use of "national interest" to pass the law is a poor or lame excuse because national interest also includes protecting our national environment as pronounced in the National Goals and Directive Principles and protecting the way of life of our people, many of whom rely on the natural environment for their survival. This is of critical concerns given that the global systems are experiencing many crisis such as financial crisis, food crisis, energy crisis, environmental crisis/climatic changes. The global situation warrants that we protect our traditional means of survival more instead of putting our people's survival at risk by adopting such regimes that can allow the Government of the day to by pass due process, scrutiny of the public and the courts to decide such critical issues.

8. I do not accept the argument that since developed countries such as Canada, USA  and those in Europe had done the same, we should follow suit or not be morally disturb by such laws. In most of these countries now, they have put in place strict environmental regime to protect their natural environment due to the mistakes they made in the past. In almost all of these countries now it is illegal to longer dump mining waste and tailings into river and water systems and in the sea. We should be learning from and seeking to avoid their mistakes instead of merely following their mistakes.

9. In any case Honourable Minister, you are aware that the Report by the Scottish Association of Marine Scientist has confirmed that there continues to be environmental impact being faces by the marine life and villages in Misima five years after closure of the mine there. You are also aware that CSIRO have release two reports which confirms that the disposal of waste and sediments into the sea in Lihir by Lihir Gold Mine is also affecting deep sea fish and marine life and the coral sea in the Lihir area so people in Basimuk bay have legitimate reasons to be concern about disposal of waste or tailings into their bay.

10. The amendments is a poor piece of legislation too because while it seeks to removes powers of the Court to review any decisions made or reached under the new law, you should note that under Section 155 of the Constitution, the National and Supreme Court have inherent powers to review any exercise of judicial, quasi-judicial and administrative powers such as that now vested with the Director under the new law. Such powers can never be removed by Parliament because it is bestowed on the National and Supreme Courts by the Constitution. As seen in the case of the Organic Law on National and Provincial Election where the Supreme Courts still allows review of National Court decisions to take place even through the said Organic Law states that the National Court decision in cases of election petitions is final and not subject to appeal or review. Far from solving the matter once and for all as you or the  Government intended, this legislation will only allow more litigation in challenging the legality and constitutionality of the said law. It could also see the National and Supreme Court using its inherent powers under s.155 of the Constitution even more over decisions made by the Director. So instead of the new law settling all litigations, it could invite more litigation.

11. Far from resolving the issues in respect of Ramu Nickel and Basimuk Bay, this legislation will probably prolong the dispute and put in jeopardy the future of the mine because litigation would now probably move to the Supreme Court to challenge the legality of this law while the original issues before the parties remains unresolved and the mine will remain closed or in suspense. Instead of saving the Ramu Nickel Project, this legislation will probably kill the project

Given the above therefore I proposed that you delay the implementation of the law with a view to repeal it or amending it so that the powers of the Director are not as absolute as in the present form. You can recommit the Bill to Parliament under s.130 of the Constitution to make alterations or amendments so that a fair law is passed rather than the current one. Alternatively, that you can have the current law repealed and pass a law specific to Ramu Nickel-Basimuk Bay situation and not changing the laws entirely as you have done by this law.

In respect of the issue over Ramu Nickel-Basimuk Bay situation, while I am not very familiar with the legal proceedings to date, I believe the State and the developer Company has been let down by its Lawyers. Knowing the laws on granting and maintenance of injunction and stay orders, I cannot understand how a injunction or stay order could be granted and maintained over a project that involves million of kina in investment and that the continuation of an injunction or stay orders would incurred huge cost and loss for the State and the developer company.

I am also advised that the Judge who presided over the case, wanted the trial of the substantive case heard in the beginning of May and had the trial proceeded, the issues would have been resolved. It is my professional and learned opinion that the lawyers for the developers of Ramu Nickel Mine and the State have been let down their clients and have resorted to using Parliament to cover up their incompetency thereby subjecting all of us to ridicule. In any case, I believe the Government should pursue a different approach to resolving that dispute than resorting to such tactics as completely changing the goals posts and rules for all. There are many ways in which tailings could be disposed of or stored so that they are safe and not harmful to the environment than dumping them in the sea.

I look forward to your response and further dialogue on the same. I advised however that due to the public interest in this matter, I will be releasing copies of this letter to the media.

Thank you,

HON. POWES PARKOP LLB LLM MP
Governor