Tag Archives: free prior informed consent

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.

Advertisements

Leave a comment

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

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.

2 Comments

Filed under Human rights, Papua New Guinea

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.

Leave a comment

Filed under Fiji, Human rights

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.”

Leave a comment

Filed under Human rights, Mine construction

No truth in youth claims, say Fiji’s lands ministry

xinfa bauxite bua

Bauxite mining in Bua

Luke Rawalai | The Fiji Times | September 6, 2016

THE Ministry of Lands and Mineral Resources has refuted statements by the Bua Urban Youth that Government is undermining the iTaukei social structures to obtain the consent of landowners for bauxite mining.

The ministry’s deputy secretary, Malakai Nalawa  said that they had worked with the divisional commissioner, roko tui, relevant agencies, and three previous permanent secretaries, to conduct several meetings in the villages and districts of Bua before procuring landowners’ consent for mining activities on their land. 

Mr Nalawa said that there was no truth in the claim by the Bua Urban Youth (BUY) Network.

An earlier statement by the BUY said that Government needed to procure the consent of land owning unit and clans before making any decision to mine. 

Leave a comment

Filed under Fiji, Human rights

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.

1 Comment

Filed under Fiji, Human rights

Survey reports mining bribe claims

rio banner seabed mining

Ropate Valemei | The Fiji Times | June 10, 2016

CIVIL society organisations (CSOs) report numerous instances where chiefs of deep sea mining (DSM) project-affected communities were swayed by bribes or personal favours from Government or industry to allow mining and/or other industrial activity in their villages.

This included villages where CSO surveys reported 100 per cent disapproval from respondents on mining prospects on their land.

This was revealed in the report by Blue Ocean Law and the Pacific Network on Globalisation, which was released early this week, on how deep sea mining and inadequate regulatory frameworks imperil the Pacific and its people.

The report notes this occurred with respect to fishery agreements, where the consent of fishery owners within the village had been bypassed by obtaining the endorsement of the chief instead.

“The courting of local leaders, chiefs or landowners undoubtedly poses risks for the preservation of traditions and livelihoods of indigenous communities,” the report notes.

1 Comment

Filed under Corruption, Fiji, Human rights