Tag Archives: FPIC

Landowner identification in PNG: a job for government

Credit: Celine Rouzet

Peter DwyerMonica Minnegal | Devpolicy Blog | March 21, 2019

The Papua New Guinea Liquefied Natural Gas (PNG LNG) project commenced exporting gas to China, Korea and Japan in May 2014. Under agreements reached in 2009, landowners of eight petroleum licence areas, eight pipeline licence areas and a liquefaction plant site near Port Moresby were to receive royalties. By February 2019, payments had been made to people in only the last of these areas. The identification of landowners has been a major difficulty, and assigning responsibility for completing the task has been a matter of debate.

At the close of 2018, social mapping and landowner identification studies carried out by consultants to petroleum companies, clan-vetting exercises carried out by officers of the Department of Petroleum and Energy, and alternative dispute resolution processes implemented by the judiciary had failed to solve the problem. By this time too, agreements for two other LNG projects (in Western Province and Gulf Province) were under discussion. In January 2019, Petroleum Minister Fabian Pok told parliament that the government would not repeat the mistakes of the first LNG project. He wanted the companies to be responsible for identifying landowners in the new LNG project areas and he wanted this done before those projects moved to production. On January 23rd, referring to the Gulf Province LNG project, Prime Minister Peter O’Neill said that the government “had tasked the developer to do the landowner identification process” and Minister Pok reported that Total – the developer – had agreed to do this.

The small print is not yet to hand so we cannot be sure just what the government has requested or what Total has agreed to do. Here, however, we argue that ceding responsibility for landowner identification to the petroleum companies is a seriously bad idea – bad for the companies, the government and for the people of Papua New Guinea.

Under the Oil & Gas Act 1998, final determination of landowner beneficiaries for a petroleum licence area is to be made by the responsible minister and gazetted as a Ministerial Determination. Recent determinations provide a record of landowner beneficiary identification for specified licence areas or pipeline segments. Those determinations name clans (variously ‘major clans’, ‘stock clans’, ‘beneficiary clans’) but do not name individuals within those clans. With reference to differential benefit-sharing arrangements they may subdivide clans as ‘highly impacted’, ‘least impacted’ and ‘invited’.

The diagram below shows some categories of landowner beneficiaries appearing in recent determinations and in clan-vetting exercises that precede and feed into those determinations. On the diagram, the boundaries of the lands of clans A to G are shown relative to a Petroleum Development Licence (PDL) area. Clans A, B and C are classed as landowner beneficiaries on the basis of long-term residence and use. Clans D and E are ‘invitees’ initially recognised as landowner beneficiaries on the basis of boundary-sharing with A, B or C with the possibility that they are subsequently granted equivalence with those clans. Clan F is classed as a landowner beneficiary on the basis of asserted ancestral connection and an ideology of rights to land being held in perpetuity. Clan G is an ‘invitee’ recognised as a landowner beneficiary on the basis of assistance rendered to A, B and C. H is a private citizen, or group, that holds registered title to a portion of the PDL area and, on this basis, under the Act is a landowner beneficiary.

The concept of ‘landowner’ is being used here in a broad and fluid sense. It is not used in agreement with any likely academic definition, with any detectable legal rigour or in conformity with a pan-PNG ideology of tenure because, of course, there is no pan-PNG ideology of tenure. The Oil & Gas Act requires that a company applying for a PDL must submit a “full-scale social mapping study and landowner identification study of customary land owners” of that licence area. Under the Act, customary landowners are persons whose relationship with the land has to do with “rights of proprietary or possessory kind”. Not all clans identified as landowner beneficiaries in Ministerial Determinations satisfy this definition. And the status of others, both the included and the excluded, as members of this category will be always amenable to contention. Several possibilities are implied in the diagram.

For example, a judgement that clan C was ‘more impacted’ than A or B because all land attributed to C is within the PDL area while portions of land attributed to A and B lie outside that area, could be challenged by the latter clans on the basis of area or numbers of people affected. Similarly, members of A, B or C could well have different opinions regarding acceptance of D or E as ‘invitees’ and their possible upgrading to the status of landowner is even more problematic in being politically, rather than empirically, motivated. Inclusion of F as landowner will be dependent on assessing the validity of accounts of ancestral connections from claimants who may well have competing agendas. Finally, inclusion of G could elicit claims from other clans that assert that they too provided assistance to A, B and C. Resolving problems of these kinds cannot be achieved by an anthropological study of ‘in situ’ land ownership. These sorts of problems are ultimately resolved only by facilitated negotiation with those charged with identifying landowners, or by litigation.

No petroleum company can produce a list of clans that will conform to, or satisfy, the sorts of decisions that currently inform Ministerial Determinations. They did not do so in the past and they cannot do so in the future. If companies now assume responsibility for producing a definitive list of landowner beneficiaries, there will no longer be any ambiguity about who to blame or who to take to court when the list is considered defective. The fault will be theirs. On these counts, the desire to shift responsibility – or at least the perception of responsibility – to the petroleum companies might, in the short term, prove beneficial to the government in domains of financial management and public relations.

There is, however, another reason why responsibility for identifying landowners should remain with the government. Only Papua New Guineans – the PNG government, courts, and the landowners themselves – can determine who owns the land in Papua New Guinea. This responsibility should not be ceded to outsiders. It should not be ceded to American, Australian, Chinese or French companies. Papua New Guinea is not their country. They are guests. Only Papua New Guineans can determine what is right for Papua New Guinea. The petroleum companies should recognise and acknowledge this and step back from this area of decision-making. The government should also recognise and acknowledge this and step forward to ensure that the rights of all Papua New Guinean woman and men are guaranteed by Papua New Guineans.

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ID landowners first, says MRDC

Armed clansmen in the town of Komo in Papua New Guinea’s Hela Province. Photo courtesy of Michael Main

The fact this even needs to be said is a terrible indictment of our Nation’s mis-management of resource extraction industries over decades. If social mapping and proper landowner identification is not being done then there can be no free, prior, informed consent and most projects are simply illegal.

The National aka The Loggers Times | March 20, 2019

THE issue of social mapping and landowner identification must be done prior to the commencement of any project, says Mineral Resources Development Company managing director Augustine Mano.

He said it should not be left till very late as was the case with the PNG LNG project.

Social mapping and landowner identification for the PNG LNG project took 10 years to complete.

“It must be the first thing to be done in any future project in the country,” Mano said.

He said for the Papua LNG and the P’nyang projects, landowners or beneficiaries were identified prior to the development forum so that only they were involved.

He said that was important for project security because it was different from other countries where genealogy was documented properly over the years.

Mano said the MRDC as the landowner fund manager was making sure that the benefit distribution was done according to the Oil and Gas Act – 40 per cent to the landowners, 30 per cent for community infrastructure and 30 per cent for further investments.

The secretary for the Department of Petroleum, Lohial Nuau, said landowners issues were now being better managed.

He said the department had taken stock of outstanding government commitments under the various agreements which would be channelled through the Independent Issues Committee.

“This is positive step towards improving landowners issue management,” he said.

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Second Wave Due Diligence: The Case for Incorporating Free, Prior, and Informed Consent into the Deep Sea Mining Regulatory Regime

A new article, Second Wave Due Diligence, published in the Stanford Environmental Law Journal calls for the norm of free, prior, and informed consent (FPIC) for indigenous peoples to be applied to deep sea mining (DSM) projects carried out in the international seabed, particularly in the Pacific region, where numerous indigenous communities stand to be directly and disproportionately impacted by this new extractive industry.

Authors Julian Aguon and Julie Hunter’s argument, while novel, relies on core prescriptions of Part XI of the United Nations Convention on the Law of the Sea (UNCLOS) requiring compliance with international law in general, including pertinent rules of international environmental and indigenous rights law.

UNCLOS’s clear parameters on the prevention of harm to the marine environment, expounded upon by the International Tribunal for the Law of the Sea in a series of key decisions, have created a due diligence standard that is imposing ever higher duties on an increasingly wide range of actors, including in areas beyond national jurisdiction.

This standard is evolving alongside a robust norm requiring the FPIC of indigenous peoples threatened by large-scale extractive activities, even if those activities are not directly carried out on indigenous land.

When applied to DSM, whose exploratory stage has already resulted in an array of adverse impacts to Pacific indigenous peoples, these normative legal developments coalesce into a compelling argument for placing impacted indigenous peoples into key decision-making roles.

Such an approach, which is called a “second wave” of due diligence, represents a decisive break from a destructive history in which the Pacific served as a proving ground for the experiments of others, and a concrete step toward sustainable, rights-based development in the twenty-first century and beyond.

Download: Second Wave Due Diligence

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Consultation or slick sales pitch?

The deep seabed minerals consultation on the northern group island of Penrhyn.

This is an all too familiar problem in Papua New Guinea…

June Hosking | Cook Island News | February 4, 2019

The deep seabed minerals consultation held in Mauke last week leaves me asking, yet again, ‘what should a consultation look like?’ The dictionary says, in short, ‘A consultation is a meeting to deliberate a matter. Deliberate means to weigh up both sides.’

Therefore, for a real consultation we need to hear both sides. It would have been great, for example, to have heard from a Maori speaking scientist like Dr Teina Rongo on what could go wrong. From where I sat all we got was a slick sales pitch with some question and answer time tacked on the end. But if people don’t really know the issue they don’t have real questions to ask.

Throw in talk of money and the conversation is nicely side-tracked. The majority of time was given to selling the idea of seabed mining and how much money it’ll bring in. It is a sales pitch when one starts talking about what mining will buy for the island. Besides mentioning the possible amount of income, I don’t believe they should be allowed to talk about specific spending, as that is basically bribing for a vote.

Health and education are a required part of government budgeting, whether there is mining or not!

Had it not been for one frustrated person asking for the meeting to head to its advertised purpose – the bill, we may never have touched on it at all. When we did, Paul produced what he hands out at Parliament- a double sided A4 page summary of the 57 page Seabed Minerals Bill.

Apparently many politicians don’t get around to reading the whole document. It angers me that we’re paying politicians to read just two pages and frightens me that they could, without having really checked out the whole bill, make critical decisions affecting our future.

I wouldn’t be surprised if no more than five people on Mauke read the whole bill, so after a whizz through the two pages, the MC decided it was time to say grace for the kai manga. He asked for a shout out on who agreed (no specifics) and wasn’t impressed when I stood up to bring attention to the screen noting ‘questions and answers time’. As you can imagine, that time was extremely brief and then it was all over.

I did make use of Q&A opportunities and was told others had expressed similar concerns, but they weren’t the sorts of things to be in a bill.

They would be in the licensing process. I realise that at this stage we’re talking about exploration, but no one in their right mind is going to pour money into exploration without expecting to gain a mining license if they request it. So I’m looking long-term.

The following are my concerns on environmental aspects:

1.    The precautionary approach has a loophole. It suggests to me that if warning bells ring and it’s not cost-effective to avoid disaster, then you can go ahead anyway. It should say if it’s not cost-effective, then you stop altogether.

2.    What happens if there is a leak? How long will it take to discover a plume of sediment that could be devastating to ocean life higher up the column? Even if the pumps are immediately stopped there will be something like 10km of sediment in the pipe leaking out until the break is found and fixed.

3.    Biodiversity preservation areas must be compulsory so that for every mined area (which will become a desert) an equivalent area is zoned untouchable.

4.    Part 5 of the Bill talks about liability, but what do we do if a big company refuses to accept responsibility or to fix damages, as has happened with TMV’s leaky joints in Raro? Is it possible to require some massive bond up front?

5.    Schedule 2:5 says you have to get additional consent for high-risk activities. If evidence arises that to proceed is likely to cause serious harm to – (a) marine env. (b) safety, health or welfare of persons (c)other existing sea uses. Does it make sense to give consent for serious harm?

6.    Schedule 2:6 discusses dumping. We need to state clearly in black and white that ‘sediment must be returned to its place of origin’.

7.    Point 23 describes the composition of the Committee. There have to be at least seven members. Four of these are politically appointed. Is this right?

Finally, meitaki nui to Gerald McCormack for producing such an easy to read and interesting small book on seabed minerals. I hope this book is compulsory reading for every politician. Our future depends upon your decisions.

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Under-MINING Morobe: Wafi Golpu and the struggle for Morobean sovereignty

Martyn Namorong | December 19, 2018

I have a strong affinity for Morobe province. Although I am not from the province, my surname -Namorong- is Morobean. I won’t bore you with the long tumbuna stori but it has something to do with a young Lutheran pastor from Tapen in the Rai Coast climbing the “hundred mountains” of the Finisterre Range and working with the people of Teptep in the 1970s.

The first time I entered the debates on the extractive sector in Morobe, was in 2012, when communities along the Watut and Markham rivers reported fish and eels dying after what they believed to have been related to a cyanide spill from the Hidden Valley mine (Same miners now involved in Wafi-Golpu).

Last year, with assistance from generous development partners, I ran a workshop in Lae bringing together government officials and community leaders from mining communities associated with the Hidden Valley and Wafi Golpu projects. My interest as well as that of the funders was to educate and empower sub-national leaders on PNG’s extractive sector. An overview of PNG’s mining regulatory framework was presented by the Mineral Resources Authority.

I have since had the privilege of meeting and listening to landowner and provincial government representatives. One such meeting ironically happened at the 8th floor conference room of Treasury building, where landowner representatives were lobbying for the Open Book Financial Modelling of the Wafi-Golpu project.

Katim na skelim Pik

One of the hot topic discussions of any resource project is benefit sharing with local stakeholders, colloquially referred to has “katim pik”.

For a faction of Wafi-Golpu landowners, having access to the Open Book Financial Modelling is critical to them in informing their decision making regarding the project.

What the Open Book Model does is it mathematically models the “size and weight of the pig” so to speak and then predicts the financial implications of “cutting the pig” in a certain way.

Say for instance, it predicts how much profit or loss the project will make depending on an upper and lower limit of the World Market price of copper.

During the Wafi Golpu Memorandum of Agreement (MOA) discussions held in the middle of this year, Treasury Officials told local Morobean parties that they had access to the Open Book Model.

Landowners and Morobe Provincial Government officials have since been pursuing that model from Treasury.

Now under PNG Mining and Petroleum laws, the Development Contract for a resource project is negotiated by the National Government and the company wanting to exploit the resource.

The Provincial Government, Local Level Government and Landowners only come into the picture after the Development Contract is signed. Their participation is only at the Development Forum stage where benefit sharing agreements are signed between the National Government and sub-national parties.

This procedure exposes a fundamental flaw – landowners and provincial governments are not party to discussions on how the pig is cut.

So what happens in PNG is that by law the government and a foreign corporation cut the pig and then the government redistributes its share with the sub-national stakeholders. If government officials negotiate poorly as they have notoriously done previously, provincial governments and local governments including landowners are given the “pig skin” instead of “meat”.

Free Prior Informed Consent and Contract Transparency on Wafi-Golpu

Morobeans, under the international principle of Free Prior Informed Consent (FPIC) that is aimed at protecting the rights of vulnerable ingenious communities, have a right to information that will help them make informed decisions about the Wafi-Golpu project.

Access to critical financial modelling information is important even if PNG law doesn’t cater for their interests at this stage of project negotiations.

National authorities have historically failed in their fiduciary duty to protect the interests of local authorities and landowners. The Morobeans therefore have every right to be sceptical about whether Waigani will protect their interests during negotiations of the Wafi-Golpu Development Contract.

Contract transparency following the principles of the Extractive Industries Transparency (EITI) that the government of PNG has signed up to are therefore crucial in building understanding and trust between all stakeholders and not undermining the interests of the people of Morobe during negotiations of the Development Contract.

Morobeans aren’t naive

Morobeans have had their first mining experience from Bulolo and Wau Gold fields. Today they live with the Hidden Valley mine for better or for worse. They know the same dodgy characters from Hidden Valley are know plying their dirty trade at Wafi-Golpu.

Perhaps for me, the most poignant moment was at the Sydney Mining and Petroleum Investment Conference, seeing highly educated Morobeans urging their governor not to sign the MOA with Wafi-Golpu project partners when rumours were spreading at the conference venue that the Mining Minister and Prime Minister were keen of getting the Governor to sign.

Hats off to the Morobe Governor and Landowners of Wafi-Golpu. I hope that your actions will lead to improvements to how PNG’s natural resource contracts are negotiated and that PNG has broader contract transparency consistent with the EITI global standard.

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Australian mining interests in north Bougainville

Jubilee Australia

While the Panguna mine – one of the largest operating copper-gold mines in the world until the Bougainville crisis forced its closure in 1989 – might grab the attention of many people, there is more going on in Bougainville in relation to mining in than just Panguna. As at the beginning of 2018, four exploration licences have been issued to Australian, Canadian and Filipino mining companies.

Australian company Kalia Holdings holds some of these licences and is exploring for copper and gold in the Mt Tore region in North Bougainville.

We are concerned that affected communities have not given their free, prior and informed consent for Kalia Holdings’ activities. In particular we are concerned at reports that women have been sidelined, and that the people who are making decisions supposedly on behalf of landowners do not always have customary rights to the land in question. Much of Bougainville is a matrilineal society and land entitlements pass through women to their children. Women are custodians of the land and as such must be involved in all decision-making as it relates to land and to mining.

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Fiji: No short cuts to dealing with community grievances on mining

FCOSS executive director Vani Catanasiga. Picture: FT FILE

The Fiji Times | 29 August, 2018

There are no short cuts or easy solutions to dealing with community grievances and disputes arising from mining or extraction says the Fiji Council of Social Services (FCOSS).

FCOSS executive director, Vani Catanasiga shared the sentiments after presenting to the UNDP-organised ”Addressing grievances and disputes from the Development Mineral” Capacity Building Workshop in Nadi

Catanasiga who presented on “Free, Prior, Informed Consent – A proactive approach to dealing with community grievances and disputes in extraction”  said while development stakeholders favour  a faster and more efficient approach to dealing with community grievances and disputes, this approach undermined the community’s right to decide on projects that could affect them adversely.

“Working to obtain Free, Prior and Informed Consent or FPIC is about involving communities the right way so that development can have a lasting and positive legacy for both communities and companies,” she said.

“FPIC is an intentional process that should avail to affected communities information on government, business or banks that are stakeholders in the project, project details in their preferred language as well as convening community discussions that involve everyone – including women, children, elders, non-indigenous neighboring settlements – to discuss project terms.”

She said using FPIC could be a proactive approach to dealing with community grievances arising from access to and utilisation of natural resources.

“So yes it may seem, a long and sometimes difficult process but ultimately as you mainstream FPIC into your approaches, you indirectly build communities’ sense of ownership into ensuring the success of the project because you have included them,” she said.

Catanasiga said FPIC is emerging as a best practice approach for people centred development around the world because it promotes the inclusion of all communities that will be affected by proposed development projects.

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Can the law prevail over Chinese investments in Ecuador?

Police and Molleturo communities discuss procedures to monitor the suspension of mining activities. Photo: Manuela Picq

Manuela Picq | Intercontinental Cry | July 25, 2018

Last June, an Ecuadorean court ordered the suspension of all mining activities by a Chinese corporation in the highlands of Rio Blanco, in the Molleturo area of the Cajas Nature Reserve. It was a local court in Cuenca that gave the historic sentence: a court shut down an active mine for the first time in the history of Ecuador. Judge Paúl Serrano determined that the Chinese private corporation Junefield/Ecuagoldmining South America had failed to consult with the communities as required by Ecuador’s Constitution and by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Judge Serrano deemed the mining activity illegal and ordered the corporation to immediately suspend all its activities. Within two weeks, local communities accompanied police forces and local government officials in monitoring that the court order was respected.

The company appealed, and pressure was on the rise for the following hearing. The Chinese corporation privately offered $18 million to community leaders. Ecuador’s President, the Minister of Mines and the Minister of the Environment visited the province to pressure the local courts and indigenous communities to accept the mining activity. They defended “sustainable” mining as a form of development.

Affected communities consolidated their resistance, monitoring the access to the mine to impede mine workers to enter their territories, building support from neighboring communities, and informing the international community of the legal stakes.

On July 23, 2018, the court met again to either ratify or revert the decision to suspend mining activities in Rio Blanco. The court listened to all sides along with some expert testimonies; but there were discrepancies among the judges who postponed their verdict for another week.

Molleturo’s lasting vigilance for their waters

The Rio Blanco mine is located in the Molleturo-Mollepongo region, above ten thousand feet in the Andes. The mining license encompasses approximately six thousand hectares of paramos, lakes, and primary forests that nourish eight important rivers. This area replenishes the water system of the Cajas National Park, one of the largest and most complex water systems of Ecuador, which covers over a million hectares and holds immense water reserves.

The area is recognized as a natural biosphere reserve by UNESCO. These mountains have long been the home of Kañari-Kichwa indigenous communities. There are 12 archeological sites in the Molleturo area alone: the most famous one is the Paredones archeological site, located right by the mine.

The area is also a vital supply of water. These paramos provide water to 72 communities in Molleturo, freshwater to towns in the southern coast of Ecuador and to the city of Cuenca, the country’s third largest city which praises the quality of its drinking water.

The Rio Blanco mine is expected to be active for seven years, removing about 800 tons of rock per day and using cyanide to extract gold and silver. This entails an estimate of one thousand liters of water per hour that would be contaminated with deadly toxic waste, including arsenic, before being thrown back into rivers and soil.

Local indigenous communities were never consulted prior to the development of the project that would benefit from a recent Ecuadorean law incentivizing foreign investment. Nor did they give their consent to the licensing of their territories to the Junefield corporation. They reject the mine because it would contaminate their waters.

Women are at the forefront of the resistance that began almost two decades ago, when the mining license was first issued. Molleturo communities have been arguing in defense of water more or less actively over the last decade and a half but stepped it up when the mine started its activity in May 2018. Protests exploded, and a group burned out the miner’s living quarters.

Nobody was hurt in the explosion, but the police intervened, heavily armed, to militarize the area. The next day, protesters called in the president of Ecuador’s Confederation of Kichwa People Peoples for help, Yaku Perez Guartambel, but workers from the mine kidnapped him for eight hours, threatening to kill him. Tensions boiled to new heights.

Prior consultation as a fundamental indigenous human right

The Judge ordered the suspension on the mine–invoking constitutional and international indigenous rights to prior consultation.

Rosa, a delegate from the Andean Network of Indigenous Organizations (CAOI), discusses the territorial dimension of self-determination to community members gathered in the páramos of the Cajas mountain range. Photo: Manuela Picq

Since 1989, Art. 6 of the International Labor Organization Convention 169 safeguards indigenous rights to prior consultation on projects taking place on indigenous territories. Art. 18 of UNDRIP establishes indigenous rights to participate in decision making relating to their territories, and Art. 19 establishes that states must consult “in good faith” to obtain indigenous “prior, free, and informed consent: about legislative of administrative measures impacting their communities. In 2016, Art. 25 of the American Declaration on the Rights of Indigenous Peoples reiterated these principles in the context of the Organization of American States.

Prior consultation is not a simple law; it constitutes a fundamental human right of indigenous peoples because their existence is intimately tied to their territories. Their culture, lifeways, and community structures are woven into territorial autonomy.

An Amicus Curiae from a Chinese environmental lawyer

About half a dozen amicus curiaes were presented to Cuenca’s court supporting the communities right to prior consultation, from a range of organizations including the Environmental Defense Law Center, Ecuador’s Ecumenic Commission of Human Rights (CEDHU) and the Ecuadorian group Critical Geographies. Amicus were presented by scholars from Ecuadorean and American universities, including Universidad Internacional del Ecuador, Universidad de Cuenca, Universidad San Francisco de Quito, American University, and Coastal Carolina University.

Environmental lawyer Jingjing Zhang, from Beijing, submitted an amicus in which she provided an overview of relevant Chinese laws and regulations. She testified to the court on July 23, 2018, explaining that China ratified the UN Declaration on the Rights of Indigenous Peoples in 2007, thus supporting prior consultation and consent for any project on their territories. She reminded the words of the Chinese delegate at the 13th Session of the UN Permanent forum on Indigenous Issues (2014): “ the international community is duty bound to fully meet the legitimate requests of indigenous peoples, to promote and protect their basic human rights and freedoms, to safeguard the natural environment and resources on which their survival depends” and China “firmly supports the promotion and protection of the basic human rights and fundamental freedoms of all indigenous peoples around the world. ”

She explained to the court that China has regulations establishing that enterprises may not violate international treaties ratified by the Chinese government and that they are bound by the laws and environmental regulations of the host country. She stated that The Communist Party of China (CPC), State Council, and various government agencies have issued policy guidelines that encourage Chinese companies to focus on ecological environmental protection in their foreign investments. In her view, the Chinese government has deep concerns on the law-abiding and environmental performance of Chinese companies operating overseas.

Her amicus concluded that China’s Environmental Protection Law, Environmental Impact Assessment Law, and the Government Information Disclosure Regulation have strict provisions on the public participation rights of citizens. These regulations are based on the same principles and contain similar provisions to the Ecuadorian norms on the rights of indigenous peoples to prior consultation.

One step forward or two sets back?

The court sentence to suspend the mine marked a milestone of hope to Indigenous peoples and nature defenders. Yet the old tactics of legal warfare are still in use. Within a week of the court sentence, over 20 nature defenders were criminalized, eight of them charged with the crime of sabotage.

The private corporation Junefield/Ecuagoldmining South America did not have to do engage in public debate, Ecuador’s government is taking the lead. It was the Ministry of the Interior who accused indigenous peoples to defend the interests of the Chinese corporation. “The state proves that it is the best lawyer of mining companies,” says Yaku Perez Guartambel.

Will the criminalization of nature defenders continue? For now, judges are holding off a final verdict, and as the clock ticks political and economic pressures thicken. Molleturo leader Fausto Castro says that communities want their right to life back, and that they seek a peaceful solution to this mining conflict. It is indeed an achievement that serious confrontations were avoided, but this may not last forever. Yesterday, when the Judge staved off sentence as hundreds of nature defenders awaited outside the courtroom, many expressed their fears: “if the court reverts its sentence to benefit the State, it is a declaration of war.”

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Call to review the unjust, primitive and self-harming laws of Papua New Guinea

Resource Owners Federation of PNG | 22 May, 2018

The PNG Chamber of Mining and Petroleum made statements last week claiming that the PNG mining laws are uncompetitive, in view of the government’s recent amendment to the Mineral Resources Authority (MRA) Act of 2005 and the proposed amendment to the Mining Act 1992. Their statements are untrue and are designed to scare off the National Parliament from amending the laws so that the mining companies can continue to reap all the benefits of mining in the country, whilst keeping the landowners and citizens who own the resources poor, as they have been successfully doing for decades.  The Resource Owners Federation of Papua New Guinea believes that, although the Mining Act 1992, needs to be reviewed, it should not be reviewed for the benefit of the mining and petroleum companies, but for the benefit of the country and its citizens.

The United Nation’s High Commissioner of Human Rights, during his visit to Papua New Guinea, in early February 2018, observed among others that; “Papua New Guinea was a resource-rich country but much of its population lives in abject poverty, with acute malnutrition rates in some areas comparable to Yemen, and minimal access to quality healthcare and education”.

The UN High Commissioner’s observations are an accurate assessment of Papua New Guinea, being a country that was “so rich, but yet so poor”.  Such assessment, is yet another official condemnation of the country’s state of affairs, in relation to the social and economic conditions of the country and its people. A significant reason for such condemnation is that, our natural resources have been managed in a way that all the benefits of the mining and petroleum projects are transferred to foreign shareholders, with nothing or very little being left for the country and its citizens. Such an official negative assessment from the United Nations must therefore, result in significant corrective actions to be taken by the State and its representatives, by way of reviewing the country’s inappropriate laws and policies.

The High Commissioner further went on to observe that; “it has strong civil society activists but there is little room for them to influence Government Policy“. The Federation and citizens have been calling on the National leaders of the country and the government over many years to review the Mining Act of 1992, on the basis that the country and its landowner citizens were not receiving a fair share of the profits from the mining and petroleum projects. The Mining Act 1992, proclaims the State’s ownership of all minerals found in any land, including and especially customary land, which land are owned by the traditional landowners throughout the country. The Federation is of the view that the State’s compulsory acquisition of minerals held under any traditional or customary lands without paying just compensation, as required by section 53 of the Constitution of Papua New Guinea, is unlawful. It is also in breach of the Article 17, of the Universal Declaration of Human Rights, which states that; “everyone has the right to own property alone or in association with others and no one shall be arbitrarily deprived of his property.”

The Mining Act 1992, as it stands and for the above reasons, is a primitive, unjust and self-harming law, which must be reviewed in its entirety, so that ownership of minerals is retained by the customary landowners. Minerals can still be mined only after development agreements are reached between the landowners and mining companies. Such arrangements have and are already in force, in many states of the United States of America. Under such an arrangement, the State stands to collect taxes from both the landowners and the mining companies. All parties then benefit from a project, in contrast to Papua New Guinea in the past and today, where the landowners are the ultimate losers.

The recent amendment of the MRA Act 2005, was justified in that, the mining industry members were regulating themselves from 2005 to 2018, after having gained a significant number of seats on the Board of the Authority.  The MRA was therefore seen as an organization that was run by the mining industry for its own benefit and against the interest of the country and its citizens. The Chamber of Mining and Petroleum now calls the amendment uncompetitive, because of their exclusion from the Board that they controlled for many years to their benefit but to the detriment of the landowners, the country and its citizens. The Federation challenges the Chamber of Mining and Petroleum to identify any government in the western world that would allow the mining industry to take over the enforcement of its mining laws against itself. We would think that such a practice, if allowed, would be deemed to be corrupt and therefore unlawful.

The UN High Commissioner further went on to say that; “the government urgently needs to build a stronger nexus with its people, so it can better serve their needs in this vast and diverse land.”  He saidthat it was unacceptable that many businesses had been granted licenses to engage in the extractive industries without the free, prior and informed consent of the people living on the affected lands…

 The Federation believes that the amendments to the Mining Act 1992, the MRA Act 2005 and the Petroleum Act 1998 are three laws which must be amended so that those citizens who are owners of the land under which any mineral or petroleum are found, are recognized by law, as the owners of those resources. This then will be the beginning of a new era, where the State will be building a stronger nexus with its people going forward.

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Fiji Ministry clarifies on bauxite mining processes

xinfa bauxite bua

Fiji government tries to claim consent to mining from two chiefs is equivalent to free prior informed consent from ALL the landholders…

Luke Rawalai | The Fiji Times | August 28, 2016

BAUXITE has only been mined at Nawailevu and Naibulu and chiefs from both areas have consented to the project, says Ministry of Land’s deputy secretary Malakai Nalawa.

Mr Nalawa said that hence approval had been given by the two chiefs to the companies.

Responding to outcry from Bua Urban Youth about the need for obtainment of Free Prior and Informed Consent (FPIC) from landowners before any mining processes, Mr Nalawa said that this has been obtained.

Meanwhile, BUY representative Vani Catanasiga says that officials must do more than just seeking the chief’s consent as a signal of the community’s approval.

Ms Catanasiga said they needed to prepare dialogue spaces between landowners and companies so that they can discuss on the pros and cons of mining before any decision is reached.

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