The Momis Mining Act is an undemocratic attack on constitutional and common law rights
Dansi Oearupeu | Imipono Projects
Bougainville’s new Mining Act strips citizens of basic constitutional and common law rights. Making matters worse, democratic protest against mining and compulsory acquisition of land is now a criminal offence punishable by prison terms that are equal in weight to the punishments given to child sex offenders.
Under the new Bougainville Mining Act shepherded by the Momis government landowner resistance to mining operations is now a criminal offence that is punishable by up to five years imprisonment.
Section 346 of the Mining Act states, ‘a person commits an offence if (a) the person unlawfully— interferes with or obstructs exploration, mining or other operations authorised under this Act (b) interferes with machinery, plant, road, work or property on, in, under or over the area of a tenement or community mining licence, which is used in the exercise of a right conferred under this Act. Penalty: K250,000 and 5 years’ imprisonment’.
So any attempt to peacefully defend customary landholdings by blocking mining equipment, mine personnel or other appointed officials, as the mothers of Rorovana did in the 1960s, now attracts a five year custodial sentence.
In an underhanded twist, this punitive prison term was not in the original draft released by the Momis government in December 2014. This last minute amendment to the bill increases the penalty for protest 60 fold.
To put this in context, the Momis government believes that customary landowners who peacefully resist mining on their own land are guilty of a crime equal in seriousness to the indecent assault of a child (5 years) or possessing child pornography (5 years custody). Clearly, the Mining Act is in breach of the rule of proportionality, where crimes of equal moral weight are given similar punishments, while those of dissimilar moral weight are given different punishments. How can a landowner protecting their land from destruction by a foreign multinational, be regarded the same as a paedophile who watches videos of children being sexually abused?
But, alas, under the Mining Act the landowner is actually treated worse than the paedophile.
Incredibly, the act abandons a fundamental common law principles that goes back centuries, which states that for an offender to be found guilty of a crime the state must prove actus reus (the accused committed the criminal act), and means rea (the accused intended to commit a criminal offence).
For landowners in Bougainville, this principle no longer applies!
Section 355 of the Mining Act states, ‘subject to an express provision in this Act to the contrary, it is not necessary to prove an intention or other state of mind in order to establish the commission of an offence under this Act’.
Remember, this law was written for the Momis government by the British company Adam Smith International – by including this section Adam Smith have, in effect, robbed the people of Bougainville a common law right the law’s drafter would enjoy in the United Kingdom were they arrested for a criminal offence.
As a result of this provision landowners who are unaware of the Mining Act provisions – owing to a lack of consultation – who are simply protecting their land from trespassers, could now be thrown into prison for years, despite the fact they had no mental intent to breach Bougainville law. Not even rapists or murderers are denied this common law right.
To make matters worse, permission to use land for mining purposes can be given by less than 1% of landowners. Under the Act, the ABG can appoint a landowner organisation to consent on behalf of all landowners. There is no requirement for majority consent!
As a result, a remote village community may be unaware that a distant wantok has signed away their land. Then when the bulldozers approach and they resist, they will not simply face the mobile squad rifles, but a substantial prison term.
Nor can landowners shield themselves against punitive criminal sanctions using the Constitution, because the Mining Act suspends key constitutional provisions protecting the civil, economic and human rights of landowning communities. In particular, section 2 of the Mining Act allows the ABG to suspend the right to freedom from arbitrary search and entry, the right to privacy, the right to freedom of information, and most controversially the right to property – the state can compulsory acquire land against the community’s will.
Then there are a whole range of other criminal offences under the act that go from the serious to the trivial. Under the Mining Act removing or defacing a marking peg, is a crime punishable by prison.
Section 348 states ‘a person commits an offence if the person, without authority, breaks, defaces or removes, or otherwise interferes with a boundary mark erected under this Act. Penalty: K25,000 and 30 days’ imprisonment’.
Or what if a landowner whose land has been compulsorily acquired, peacefully refuses to comply with orders to leave their ancestral lands? This is a criminal offence punishable by two years imprisonment.
Section 349 states that a person commits an offence if they ‘obstructs, hinders or delays an authorised officer in the performance of the officer’s duties; or fails to comply with a lawful requirement made by an authorised officer; or refuses an authorised officer entry to premises or land into or on which the authorised officer may lawfully enter; or fails, neglects or refuses to allow or provide all reasonable facilities and assistance to an authorised officer exercising a power under this Act; or impersonates an authorised officer. Penalty: K50,000 and 2 years’ imprisonment’.
So whether landowners consciously resist, or accidentally resist, the encroachment of mining companies on their land, whether it be for exploration, construction work or mining, they are committing serious criminal offences. They are also committing a criminal offence if they engage in non-violent resistance on their own land by refusing to vacate their property for the mining company. Making matters worse landowners are denied common law and constitutional protections afforded rapists, murderers and even paedophiles. This is a foreign mining law for foreign interests, democracy has now been suspended for mine affected communities on Bougainville.