One step forward two steps back – Foreign mining legislation fails Bougainville

The Autonomous Government of Bougainville has released the draft Bougainville Mining Act which replaces the Transitional Mining Act. The legislation was drafted by Adam Smith International a British company that has lobbied for big business interests across the globe. It encourages governments in countries such as Nigeria, Bangladesh and Tanzania, to sell off their land and resources – now they come to Bougainville, paid for by the World Bank!

For more on this shadowy agent of foreign power, see here: http://powerbase.info/index.php/Adam_Smith_Institute

The Adam Smith team was led by Professor James Otto, who has worked in the mining industry, and served as the Rio Tinto Senior Lecturer at the Centre for Petroleum, Mineral Law and Policy.

In other words this is a mining legislation drafted by friends of the mining industry for the mining industry. Instead of having a blank piece of paper, then getting Bougainville’s finest legal minds to move from village to village, so an organic law could be written by the people for the people, President Momis has allowed the legislation to be drafted by a foreign corporation based in London (the dual home of Rio Tinto), that seeks to make Western nations rich at the expense of small, resource rich countries. Would Australia or Britain allow a Bougainvillean to write its laws? Not in a million years.

In its current form, the legislation does two things, 1) it ensures that the interests of the mining industry take priority over the interests of landowning communities; and 2) it creates the appearance that landowners will have control over their resources – they will not.

The apparent step forward lies in section 108(3), which states, ‘no mining lease may be granted until landowner permission to approve the mining lease application has been obtained’.

Do not get excited just yet, the ‘devil’ lies in the detail of Part 4 of the legislation. Here we find out what approval means. Mining leases will NOT have to be approved by ALL landowners, or even the MAJORITY of landowners, the lease CAN in fact be approved by a SMALL MINORITY of landowner who have been selected and approved by the government – and we know how easily governments can be bought off by wealthy foreign corporations, especially when intoxicated by the pie charts and graphs presented by their foreign advisers doing the business of neo-colonial powers.

So, if we turn to section 34 of the Act, it states that consent to a project can be given on behalf of the entire landowning community by ‘the approved landowner organisation or organisations, if any, representing the owners of the customary land in respect of which the application has been made’.

And it is the Bougainville government who ultimately decides, who is, and who is not a ‘legitimate’ landowner organisation. Section 35 declares, ‘the Bougainville Executive Council may from time to time approve one or more organisations to represent all or some of the owners of customary land’.

The legislation even empowers the ABG to set up on its own initiative landowner associations to represent landowning communities. Section 36 states, ‘the Bougainville Executive Council may approve a landowner organisation, for the purposes of this Act, under Section 35 on its own initiative’.

All of this comes straight out of the Rio Tinto playbook. For years it was Rio Tinto’s boys who led the Panguna Landowners Association during the 1980s. When Perpetua Serero and Francis Ona kicked them out in an election, Rio Tinto cried that neither Francis nor Perpetua were true representatives of the people, and demanded the old guard be installed, as they were the true customary leaders. The old guard were not customary leaders, they were Rio Tinto’s leaders.

What was once Rio Tinto policy is about to be Bougainville law – it will be the government and their corporate allies that decides who are the true representatives of the people. When it comes to approving mining leases, it will be these landowner associations approved of by the government, and set up to welcome in foreign miners, that speak on behalf of all landowners.

The legislation also entirely ignores community rights to independent information. To date Panguna landowners have only been briefed by ‘experts’ in receipt of substantial funding from Rio Tinto, and therefore cannot in any sensible way be deemed independent. Under the legislation there is no right to independent information from experts unattached to the mining industry.

All of this falls below what is expected in international law and accepted as best practice in the extractive industries. The principle of free, prior, informed consent (or FPIC) is now enshrined in a range of international covenants, including the UN Declaration on the Rights of Indigenous People.

Recently Oxfam provided a community toolkit that sets out the requirements of FPIC. They include:

  1. ‘You must have access to independent information, not just information from the project developers or your government’. To date, no independent information has been given to landowners in Panguna.
  2. ‘You must also have access to experts on law and technical issues, if requested, to help make your decision’. The communities have not been given access to independent experts who can aid them. The only experts who the communities have been permitted to speak with are Australian advisers who are financially linked either to Rio Tinto or the Australian government.
  3. ‘Consent requires that the people involved in the project allow indigenous communities to say “Yes” or “No” to the project and at each stage of the project, according to the decision-making process of your choice’. The Panguna community will not be allowed to say yes or no, instead the government will empower an unrepresentative minority, who did the original deal with Rio Tinto back in the 1970s, to once again sign away the land on behalf of people they have no mandate over.
  4. ‘It is important that all members of your community are involved in negotiating benefits and not just a few leaders or “elites” who may be interested in maximising their own personal benefits at the expense of the whole community’.  We know who the elites are, and how they have reorganised to again sell off the people’s resources.

No attempt will be made to measure popular opinion, instead like Indonesia did in West Papua with the act of no choice, a few so called ‘chiefs’ will sign a declaration on behalf of tens of thousands of people, signing away their heritage, environment, and culture, so foreign companies can make billions at the expense of Bougainville generations present and future.

Under s253 of the Act all of Rio Tinto’s rights will be carried over and preserved from the transitional arrangements.

And just in case we thought the environment was a major concern for Adam Smith International, the legislation informs us Bougainville’s environmental future will continue to be governed by Papua New Guinea. Under section 108(4) the legislation states: ‘A mining lease must not be granted until all approvals and permits required under the PNG Environment Act 2000 for the proposed activities have been approved and issued’.

Just like the Transitional legislation, this new mining law will be passed in a hurry. There will not be time or resources for landowners to independently seek advice from legal experts – that could take months, and we know foreign interests want the Panguna mine approval to be facilitated before the next elections.

Don’t be surprised if you wake up on News Years day, having had a lovely Christmas break, only to find out a new law, written by a foreign corporation, has been passed by the ABG.

5 Comments

Filed under Environmental impact, Exploration, Financial returns, Human rights, Papua New Guinea

5 responses to “One step forward two steps back – Foreign mining legislation fails Bougainville

  1. Bouganville is no better than other MSG islands. We are entrapped in the diversity and riches of our resources but we are not allowed to develop it ourselves. Governments seems to be keen to give land and land based resources to foreign consortiums whilst Royalty are paid to landowners.
    You know whats the meaning of Royalty? Its Govt sponsored payment for the landowner not to develop his resources. A fees paid by others to licensced and develop our resources. This is a Colonial vestige which should have been outlawed long ago.
    The best thing is for the Bouganvilleans to set up their own native Government.
    Pls pick up the UNDRIP and let the ABG(national Govt) endorse the same.

    We need an association of natives of MSG to lobby national MSG Govts.

    • Tree Frog

      Why don’t we all stop bickering about all the white carpetbaggers stealing everything we own and concentrate on addressing the appalling human development situation in PNG. Take a look at the UNDP report (link attached below). Maybe this is all white gobbledygook as well. Well just take a deep breath and look around the Country at the swamp of human misery.
      http://hdr.undp.org/sites/default/files/final_png_nhdr.pdf

  2. Pingback: Bougainville’s new Mining Law written by UK neo-liberal consultancy firm | Papua New Guinea Mine Watch

  3. Pingback: The Draft Bougainville Mining Legislation | Papua New Guinea Mine Watch

  4. Pingback: Cinema Bougainville

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