NATIONAL LAND SUMMIT 2019: OVERARCHING CONCERNS & LAW REFORM PRINCIPLES

  1. OVERARCHING CONCERNS AND LAW REFORM PRINCIPLES
  • Introduction

While CELCOR welcomes the Government’s engagement with customary landowners across the country, CELCOR is concerned that the Land Summit did not address the environment or the principles of sustainable development by including them as issues for discussion. Environmental issues are not separate from the concerns of customary landowners and are integral to indigenous landownership. Land is life and we have a responsibility as custodians of the land for ensuring its sustainability for current and future generations. It is also the basis of our identities and culture.

Moreover, when indigenous peoples are dispossessed of their lands and resources and are unable to continue to make decisions about land, the degradation of the environment often results. This has been exemplified in the vast destruction of our rainforests. A driver of that dual dispossession and destruction, the Special Agricultural Business Leases (SABLs), is clothed in legality but have been found by a Commission of Inquiry on SABLs (COI) to be so beset by systemic issues that most SABLs reviewed by the COI were granted without customary landowner consent, raising serious doubts as to the validity of practically all SABLS that have been issued. Customary landowners are then treated by the law as trespassers on their own land. The extent of landowner dispossession in fact through the abuse of legal mechanisms and the extent of the destruction of our rainforests, some of the most biodiverse in the world, cannot be separated from each other.

In this regard, we consider that the Land Summit’s regional workshops should have also addressed:

  • how to protect customary landowners and land from alienation and dispossession;
  • how to facilitate customary landowners and the wider community’s participation and decision-making in all environment and development decisions and policies;
  • how to protect the environment, our natural heritage and the sustainability of our lands and all beings that rely on that sustainability; and
  • sustainable development principles appropriate to PNG, particularly in circumstances where over 90% of land is owned by indigenous customary landowners and land is the principle basis for livelihood, culture and identity.

We will discuss these issues as customary landowner issues as well as some of the 11 issues discussed at the National Land Summit regional workshops.

  • Current ‘land grab’ predicament and the failure to protect citizen’s rights to property and the environment

The primary objective and focus of the Government on customary land “mobilisation” or “unlocking” customary land[1] is misplaced. This objective of mobilising customary land has already found legislative enactment in various forms (some of which we discuss below under section 2), but on all measures has been a complete failure for the majority of customary landowners and for our environment. Only a small minority of citizens and corporations, mostly foreign owned corporations or multinationals, have used the legal process to “mobilise” customary land, which has led to widespread theft of customary land and resources. At the same time, this land mobilisation process has led to the irreparable damage to the environment (our land, our forests, our rivers and our seas), damage to our livelihoods, destruction of our sacred sites and destruction of food crop planting areas.

We are not overstating the extent of the problem or how these legal mechanisms are used in practice. Even the Government’s own land inquires have essentially described the use of these legal mechanisms in similar terms.[2] Moreover, international experts have described the current state of legal affairs as a “land rush” or a “land grab”.[3]

Very few benefits go to local communities, but all the costs are borne by them. Until the Government addresses the documented systemic failures in its administration of land, it is impossible to distinguish land mobilisation from land theft. The Government is ultimately responsible for this state of affairs under the Constitution of the Independent State of Papua New Guinea (Constitution) and under international law, as we discuss below.

Decades of land dispossession since independence should alert the Government to the need for systemic reform. CELCOR calls on the Government to direct the Constitutional and Law Reform Commission (Commission) to institute a review of all relevant laws for the purposes of ensuring the protection of customary landowners, customary land, and the environment from development activities and other impacts (Review). The Commission must also provide for an extensive public consultation process, and facilitate other opportunities for public participation in their consideration of CELCOR’s proposal for reform. Land mobilisation is fine in theory, but in practice it must be strictly managed because we have decades of experience showing how easy it is to manipulate legal mechanisms concerning land in PNG. As we have submitted above, the evidence is in – it has been a complete failure.

Throughout this submission we will raise issues that should be included in the terms of reference for the Review. We will also discuss some constitutional and international law obligations on the Government which must be integrated in all legislation dealing with all land in PNG, and should be used in the formulation of the terms of reference for the Review.

  • Constitutional directives, development, protections and the human rights of indigenous peoples
  • National Goals and Directive Principles and Basic Social Obligations

CELCOR is concerned that the Government has failed to integrate the National Goals and Directive Principles and Basic Social Obligations into legislation and policy concerning land, development and the environment. In the report of the Commission of Inquiry into Aspects of the Forestry Industry, Justice Thomas Barnett considered that this was the case in relation to, for example, forestry legislation and policy. Justice Barnett found:

Although “lip service” has been paid towards some of these constitutional goals in the legislation and policy statements now to be examined, it became sadly apparent during the course of this inquiry that none of them have been achieved, or even energetically pursued, in practice.

The derogation from the National Goals and Directive Principles and the Basic Social Obligations and a failure to integrate them into legislation and policy has led us to the current situation where, for example, our land is being denuded by unlawful logging operations.

However, the National Goals and Directive Principles and the Basic Social Obligations are properly a part of the Constitution (see, Schedule 1) and it is the “duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers” (s.25(2)). Laws are to be interpreted in way to give effect to them (where reasonably open), or at least not to derogate to them. Moreover, laws concerning property (where rights to property are compulsorily acquired or taken) must be “justified in a democratic society that has a proper regard for the rights and dignity of mankind” (s.53). The definition of this concept includes “especially the National Goals and Directive Principles and the Basic Social Obligations” (s.38).

We ask the Government to remind itself of its constitutional obligations and duty to integrate the National Goals and Directive Principles and Basic Social Obligations in all its operations and in legislation. We expect that the National Summit Committee will take the National Goals and Directive Principles, Basic Rights and Basic Social Obligations into account when making recommendations at the National Land Summit and that the recommendations will reflect the principles contained therein. Moreover, we expect that any law reform process to follow the Land Summit be required in terms of reference to consider them and to craft legal reforms to comply with them.

Specifically, we refer to those goals, directives and principles directed to the protection of the environment, requiring sustainable development, valuing indigeneity and facilitating participation in decision-making:

  • Integral human development, which declares our freedom from all forms of domination and oppression with development primarily taking place through the use of Papua New Guinean forms of social and political organisation and for the family to be recognised as the fundamental basis of our society and for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family.
  • Equality and Participation, which declares all citizens be given an equal opportunity to participate in, and benefit from, the development of PNG, particularly:
    • the creation of political structures that will enable effective, meaningful participation by our people in that life and for those structures to provide for substantial decentralization of all forms of government activity;
    • equal participation of women citizens;
    • facilitation of the organisation and legal recognition of all groups engaging in legal recognition; and
    • every citizen to be able to participate, including through a representative, in the consideration of every matter affecting their interests or the interests of the community.
  • National Sovereignty and Self-Reliance, which declares that PNG to be politically and economically independent, and our economy basically self-reliant, particularly:
    • our leaders to make decisions independently and in the national interest;
    • all government bodies to base their planning for political, economic and social development on these Goals and Principles;
    • citizens and governmental bodies to have control of the bulk of economic enterprise and production;
    • strict control of foreign investment;
    • wise assessment of foreign ideas and values so that these will be subordinate to the goal of national sovereignty and self-reliance;
    • the State to control major enterprises engaged in the exploitation of natural resources; and
    • the constant recognition of our sovereignty, which must not be undermined by dependence on foreign assistance of any sort, and to not enter into any agreement which imperils our self-reliance and self-respect, or our commitment to the National Goals and Directive Principles, or that may lead to substantial dependence upon or influence by any country, investor, lender or donor.
  • Natural Resources and the Environment are to be used for collective benefit, and to be replenished for the benefit of future generations, including:
    • wise use to be made of our natural resources and the environment in the interests of our development and in trust for future generations; and
    • conservation and replenishment, for the benefit of ourselves and posterity, of the environment and its sacred, scenic, and historical qualities; and
    • all necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees.
  • Papua New Guinean Ways where development is to be achieved primarily through the use of PNG forms of social, political and economic organization:
    • a fundamental re-orientation of our attitudes and the institutions to PNG forms of participation, consultation and consensus;
    • particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and
    • the recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and relatively for the tasks of development; and
    • traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their social, economic and ethical quality.
  • Basic Social Obligations
    • to respect, and to act in the spirit of the Constitution;
    • to protect PNG and to safeguard the national wealth, resources and environment in the interest not only of the present generation but also of future generations.
  • Constitutional protection of citizen’s property and international property rights of indigenous peoples

CELCOR finds it difficult to reconcile the extent of land theft, dispossession or an absence of citizen’s participation in decision-making in relation to land with the protection granted to citizen’s property under s.53 of the Constitution. While Government policy and law reform is often animated by noble concerns and good intentions, there are not sufficient protections, including justiciable protections, in legislation dealing with mobilisation of customary land. CELCOR submits that this absence is contrary to the Constitution.

This could expose the Government itself to compensation claims, given that the National Court has in a number of SABL cases, for example, considered that SABLs that do not comply with the Land Act 1996 and violates s.53 of the Constitution.[4] We also consider that the Government is in breach of s.37(1) of the Constitution because customary landowners have not been given the full protection of the law. We consider that a failure to take either legislative or administrative action to cancel SABLs which the Government’s Commission of Inquiry said are invalid, unlawful or impugned is a failure under s.37(1) of the Constitution and exposes the Government to landowner damages and compensation claims.

It is therefore in the Government’s interest to get the issue right, hence our overarching call for the Government to join CELCOR in referring the issue of how law is being used to dispossess customary landowners and how the law can better protect landowners to the Constitutional and Law Reform Commission.

CELCOR considers that the protection of customary land and the environment are paramount and that law and polices that advance land mobilisation must have adequate and legally entrenched protections which can be easily enforced.

Moreover, we call on the Government to review all grants of permits, authorities and licences made under the Forestry Act 1991 (Forestry Act) and to institute a moratorium on all further grants of the same. There are two reasons for this. The Government must take stock of the remaining forests (i.e. develop a National Forest Inventory) and to provide for a National Forest Plan and Provincial Forest Plans so that the objectives of the PNG Forest Authority can be met, including:

  • the management, development and protection of the nation’s forests and resources and environment in such a way as to conserve and renew them as an asset for future generations;
  • the maximisation of PNG participation in the wise use and development of forest resources as a renewable asset; and
  • the encouragement of scientific study and research into forest resources so as to contribute towards a sound ecological balance, consistent with the national development objectives.

In other words, the objective is to achieve the rational and sustainable taking of logs and the rational conservation of our forests rather than the current practice of ad hoc and unplanned granting of forestry rights.

CELCOR maintains that without a National Forest Inventory and a National Forest Plan, the Forestry Act is not for a “public purpose” required to justify restriction of s.53 of the Constitution (see, s.1(3) of the Act) and certainly does not meet the additional requirement of “reasonably justified in a democratic society that has proper regard for the rights and dignity of mankind” given the definition of this concept in the Constitution (s.38). Again, it is in the Government’s interest to avoid legal enforcement of rights and potential compensation claims by ensuring that its legislation complies with the Constitution.

CELCOR also reminds the Government of its international law binding obligations[5] in relation to the rights of indigenous peoples concerning land and property. We refer particularly to:

  • Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired – Article 25.

International law requires that the Government create legal mechanisms for redress, which is lacking in PNG despite Constitutional protections. In particular, CELCOR refers to:

  • Article 8 – States shall provide effective mechanisms for prevention of, and redress for (b) any action which has the aim or effect of dispossessing them of their lands, territories or resources;
  • Article 28 – indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent;
  • Article 32(3) – States shall provide effective mechanisms for just and fair redress for any [extractive] activities; and
  • Article 40 – indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights.

Lastly, CELCOR is concerned that the Government has not replied to letters from the UN Human Rights Office of the High Commissioner and Committee on the Elimination of Racial Discrimination (CERD) (dated 11 March 2011, 17 February 2016 and 14 December 2018). These letters are responsive to a complaint we made under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in partnership with other civil society organisations about the SABLs. The 2018 letter expressed the following concerns:

  • the Government authorises the continuing use of SABLs by foreign companies to occupy and use indigenous land in PNG;
  • the Government has not taken any steps towards the implementation of recommendations of its own Commission of Inquiry on SABLs;
  • the current use of SABLs for logging and large-scale plantation on indigenous peoples land, despite the reported adverse impact on thousands of peoples, mostly living in remote rural communities, including the destruction of their traditional subsistence lifestyles and environmental degradation; and
  • if these allegations were corroborated, the maintenance and continuous use of SABLs would infringe indigenous peoples’ rights protected under ICERD.

We enclose at Annexure 1 the correspondence for your reference. We believe that a failure to reply to these requests is in breach of PNG’s obligations under ICERD and is not consistent with the Government’s obligations to its citizens under the Constitution.

  • Self-determination and ensuring free, prior and informed consent

Under international law, indigenous peoples have the right to self-determination and free, prior and informed consent (FPIC). It is an important benchmark to ensure that customary landowners FPIC is protected in all land dealings, particularly with respect to extractive projects.

The content of FPIC can be found in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). While the UN Declaration on the Rights of Indigenous Peoples (UDRIP) is often cited as the source of the right to self-determination and FPIC, these are legally binding requirements on PNG because it has ratified the Convention on the Elimination of all forms of Racial Discrimination (CERD) in 1982, the International Covenant on Civil and Political Rights (ICCPR) in 2008, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 2008. It is clear under these treaties and pronouncements on the rights of indigenous peoples under these treaties that PNG is required to consult in good faith (or ensure that a developer does) with the objective of obtaining FPIC. With respect to how these norms work in practice, the Global Environment Facility has recommended the following:[6]

  • beginning early in the project cycle (indeed, this is a critical stage of the decision-making process) and FPIC is carried out on an ongoing basis throughout the project cycle;
  • providing prior and timely disclosure of relevant and adequate information that is understandable and readily accessible to affected people (indigenous peoples must know the full impact of the project, how it affects their lands and waters, their control over their land, their access to land and so on);
  • being inclusive of those directly affected, with particular attention to the needs of women and vulnerable and/or disadvantaged groups;
  • being free of external manipulation, interference, coercion or intimidation;
  • allowing indigenous peoples to consider and respond to the views expressed, thereby enabling the incorporation of relevant views of those affected into decision-making as appropriate; and
  • being commensurate with the potential impacts and risks.

The current standard adopted by PNG Courts is that 75% of genuine customary landowners (a substantial majority) must consent to decisions relating to land.

Moreover, FPIC is required in relationship to all projects. For example, PNG has claimed to be the owner of all mineral rights (an issue yet to be definitively addressed by the Supreme Court), this does not distract from the requirement to obtain FPIC by those indigenous people whose land will be affected. Currently, the Mining Act 1992 does not require FPIC of customary landowners on lands where mines will be situated.

In relation to large scale development or extraction projects with major impacts on indigenous land, PNG has a legal obligation to actually obtain consent (regardless of whether it claims mineral ownership rights).[7] As the Special rapporteur on the rights of indigenous peoples has explained:

where the rights implicated by [extractive industries] are essential to the survival of indigenous groups as distinct peoples and the foreseen impacts on the exercise of the rights are significant, indigenous consent to the impacts is required, beyond simply being an objective of consultations.[8]

In other words, in these circumstances indigenous peoples have a veto right. Moreover, the type of land tenure in domestic law does not affect this right or even where indigenous peoples are living on their traditional territories but have been “legally” dispossessed of their land. International law recognises these lands as still the traditional territories of indigenous peoples.[9]

There is a need to incorporate FPIC into all legislation where acts will affect customary landowners and to make the right justiciable, including:

Mining Act 1992

Oil and Gas Act 1998

Forestry Act 1991

  • Community driven development and community protocols

Closely related to the concepts of self-determination and FPIC is the idea of community-driven or bottom-up development. For too long, development has been imposed on indigenous peoples under legal systems that have also been imposed on them. This is a global phenomenon and problem, and PNG is no exception. What is missing are policies and laws that support to indigenous peoples to decide on how they, and not external parties, want to use or develop their land. Determining how indigenous peoples want to use or develop their land (if at all) may take many years given the complex relationships to land and other factors. What is required are policy settings and a legal system that supports and works with indigenous peoples. Much lip service has been given to bottom-up development internationally but there are no known comprehensive legislative means of enabling bottom up development. Viewed in this way, CELCOR believes that this is an opportunity for PNG to be a world leader in this area.

The concept of community protocols could help to fill this gap: it provides a conceptual tool for developing a mechanism for enabling true community driven development. Community protocols are an emerging concept in environmental law and policy. The term “community protocols” was introduced into the text of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD). PNG is a party to the CBD.

Community protocols encompass a broad range of protocols, procedures, rules and practices, both written and unwritten, developed by indigenous peoples in relation to their traditional knowledge, territories, and natural and other resources. These protocols cover a range of matters, including how indigenous peoples expect external actors to engage with them and indigenous peoples’ engagement with the environment.

Some common underlying principles of community protocols include:[10]

  • authenticity, diversity and locality;
  • respect and recognition;
  • full and effective participation;
  • collective custodianship;
  • reciprocity and distributive justice; and
  • flexibility and responsiveness.

Recognising community protocols within existing legal and policy frameworks at the local, national and regional levels will help facilitate community driven or bottom-up development in its truest sense.

  • Sustainable Development

Related to the issue of community protocols are obviously issues concerning sustainable development. CELCOR considers that the Government should be wary of permitting economic and financial policies to take primacy over other metrics for development. Moreover, CELCOR is also concerned about the value judgements contained in policy goals of “mobilising” and “unlocking” land when such statements create assumptions that “traditional” indigenous land practices are less worthy development goals. We refer the Government to relevant articles in UNDRIP, which are essentially also reflected in our National Goals and Directive Principles:

  • Article 11 – indigenous peoples have the right to practise and revitalize their cultural traditions and customs, which includes the right to maintain, protect and develop the past, present and future manifestations of their cultures;
  • Article 20 – indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. Deprivation of means of subsistence and development creates entitlement to just and fair redress;
  • Article 23 – indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions;
  • Article 25 – indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations;
  • Article 26(2) – indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired; and
  • Article 29(1) – indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands and territories. States still establish and implement assistance programmes for indigenous peoples for such conservation and protection without discrimination.

Further, the extent to which land formalisation and land mobilisation contributes to economic growth has been overstated and the environmental consequences have been understated or, even, unacknowledged. This is the conclusion of Caroline Hambloch’s 2018 study,[11] even though it confirms what we already know from Government inquiries. Hambloch studies in detail Palm Oil projects in East New Britain, Sigite-Mukas, Illi-Wawas, Kairak and Sagamar and argues that far from increasing agricultural activity and national income, customary land formalisation has had the opposite effects, deepening poverty and retarding economic growth.

These recent oil palm projects have been found to be “non-inclusive and unsustainable” and “effectively unregulated”. They have been initiated primarily as logging projects and are geographically unsuited to oil palm. Hambloch shows how the land formalisation process was dominated by a select group of actors in patron-client relationships. This has led to local and provincial government departments being sidelined, land consultation and awareness with local communities being completely neglected and many people, especially women, not being involved in decision making. The end result was that there was no proper awareness and consent, agreements are unreasonable and unfair, and rents negligible and ‘insufficient for the economic development of affected communities’.

Sustainable Development should be a whole of Government approach and not confined to environmental policy (and indeed, this is reflected in the National Goals and Directive Principles and Basic Social Obligations discussed above). PNG should determine the best model of economic development that suits customary landowning and lifestyles closely connected to the health of the land and environment.

Moreover, Sustainable Development should also incorporate the ecological sustainable development goals recognised in international environmental law, including:

  • integration of environment and development;
  • sustainable use;
  • intergenerational and intragenerational equity;
  • internationalisation of external environmental costs;
  • the polluter pays principle;
  • conservation of biological diversity and ecological integrity
  • precautionary principle.

Again, CELCOR considers that these principles are already reflected and required in our National Goals and Directive Principles and Basic Social Obligations under the Constitution.

  • Polluter Pays and Calculating Environmental Costs

Both COIs that we have referred to above identified that the vast benefits of resource extraction has been taken by majority foreign owned corporations, while the costs have been borne by landowners. Despite the promises, economic development in practice has impoverished communities and degraded the environment (in some cases, irreparably). CELCOR calls on the Government to address this problem by transferring the costs to majority foreign owned corporations seeking to invest or conduct economic and development activities in PNG (even via PNG subsidiaries), such as requiring bank guarantees to satisfy a court or other order before consents, permits, leases, licences, etc. are granted. The Government should also enable courts to pierce the corporate veil in circumstances where they cause environmental harm. Such legal remedies and redress would meet and make operational sustainable development goals as well as constitutional and international law and obligations.

Again, CELCOR considers that the Government is vulnerable to constitutional challenge for failing to protect s.53 rights and would prefer that entities with more resources (such as, multinational companies) are required to redress damage caused by their activities.

We highlight two cases here exemplifying the need for reform which CELCOR has been involved in where the community has borne all the costs, which is in violation of the Constitution and in breach of rights under international law. The first case is one where CELCOR succeeded in obtaining a large damages sum (in the hundreds of millions) for landowners due to illegal logging and vast environmental damage, which has remained unsatisfied because the corporation (majority owned by foreigners) went into liquidation. In the second case the community has lost its drinking water through pollution from logging, including from what used to be a pristine river and from a small watercourse which provided a second source of water. There are no other water sources, except potentially from rainwater, which requires suitable infrastructure. This is unacceptable and yet is a common story that our teams are hearing from across the country.

  • Environmental and Social Impact Statements

In light of the above, CELCOR calls for the Government to amend the Environment Act 2000 (Environment Act) to automatically require environmental and social impact statements on all customary land regardless of the activity level (including land subject to SABLs and Voluntary Customary Land Registration). This includes with respect to projects that PNG has claimed ownership rights (such as, minerals) because they ultimately are situated on customary land. If environmental harm and damage to customary land is occurring, of the type as illustrated above, then the system is failing customary land owners.

Environmental and social assessments are intended to preserve, protect and guarantee the special relationship that indigenous peoples have with their territories and ensure their survival as peoples. Such environment and social assessments must also contain investigations from a gender-based perspective because of the differential impact of development and environmental degradation on indigenous women.[12] The Environment Act should be amended to include the matters which must as a minimum be considered in an environmental and social assessment.

These assessments are a requirement in addition to FPIC (which determines whether the project goes ahead or not) but can form the basis for information to inform consultation and FPIC.

In this respect, the Environment Act should also be amended to ensure the participation of affected landowners in the process as well as the wider public. CELCOR argues that these processes are a requirement under s.53 of the Constitution where property rights are burdened by development (i.e. “just” deprivation of property rights and “justified in a democratic society that has a proper regard for the rights and dignity of mankind”). Any law reform of the Environment Act to enable participation would need to include a freedom of information provision (which is, in any event, a right of citizens under the Constitution).

We urge the Government to amend the Environment Act to provide for an open standing provision so that citizens and civil society can play a role in enforcing environmental laws.

We refer the Government to UNDRIP and the Convention on the Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) and the Inter-American Commission on Human Rights report on Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities (at [213]-[219]).

  • Freedom of information legislation (FOI legislation)

A community that is better informed can participate more effectively in the nation’s democratic processes.  Public participation will contribute to developing community consensus and social licences for government and corporate action. However, public participation is impossible without access to relevant information. Citizens’ access to official documents is a fundamental right under s.51 of the Constitution but the people of PNG have been deprived of this right since Independence.

Section 51(3) of the Constitution mandates the Parliament to establish procedures by which citizens may obtain ready access to official information.  To date, the Parliament has failed to comply with this section. As a result, PNG is yet to have freedom of information laws and the Government and its institutions continue to keep its people in the dark in respect of information they have a fundamental right to access.

The importance of FOI legislation was recognised by the United Nations little more than a year after the organisation’s inception. In December 1946 the General Assembly resolved:

Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated.[13]

This right is enshrined in Article 19 of the Universal Declaration of Human Rights, adopted in 1948:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

The right is echoed also in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    1. For respect of the rights or reputations of others;
    2. For the protection of national security or of public order (ordre public), or of public health or morals.

A Special Rapporteur on Freedom of Opinion and Expression, appointed by the UN Commission on Human Rights to monitor and report on the implementation of Article 19 of the ICCPR,[14] put forward the following set of FOI principles in 2000:

  1. Freedom of information legislation should be guided by the principle of maximum disclosure.
  2. Public bodies should be under an obligation to publish key information.
  3. Public bodies must actively promote open government.
  4. Exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests.
  5. Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available.
  6. Individuals should not be deterred from making requests for information by excessive costs.
  7. Meetings of public bodies should be open to the public.
  8. Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed.
  9. Individuals who release information on wrongdoing – whistle-blowers – must be protected.[15]

A report of the Special Rapporteur in 2010 drew attention to the role of public access to information in sustaining democratic practice:

In order for democratic procedures to be effective, people must have access to public information, defined as information related to all State activity. This allows them to take decisions; exercise their political right to elect and be elected; challenge or influence public policies; monitor the quality of public spending; and promote accountability. All of this, in turn, makes it possible to establish controls to prevent the abuse of power.[16]

  • Enact FOI legislation establishing procedures by which citizens may obtain ready access to official information as required by the Constitution, flowing from best practice defined by the relevant international law referred above in this section.
  • Overarching Recommendations
  1. Direct the Constitutional and Law Reform Commission to institute a review of all relevant laws (including the Forestry Act 1991, Mining Act 1992, Land Act 1996, Oil and Gas Act 1998) to protect customary landowners first and foremost and ensure, among other things:
    • customary landowners and customary land are protected in accordance with international law and relevant international best practice principles, including those listed above at [1.3.4] and at [1.4];
    • the environment is protected through the adoption of an ecological sustainable development model suited to indigenous landholding and lifestyles, and in accordance with international law and relevant international best practice principles; and
    • the National Goals and Directive Principles and Basic Social Obligations are fully enshrined and integrated into current policy and legislation.
  2. Ensure customary landowners have the right to access justice and prompt decision-making through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights, including s.53 of the Constitution.
  3. With respect to the Forestry Act 1991:
    • immediately review all grants of permits, authorities and licences made under the Act for any irregularities;
    • institute a moratorium on all further grants of the same until a National Forest Inventory, a National Forest Plan, and Provincial Forest Plans have been developed; and
    • urgently complete the process of developing a National Forest Inventory, a National Forest Plan, and Provincial Forest Plans and ensure sufficient funding to maintain these.
  4. Set up a land and environment court or a land and environment stream in local courts to the Supreme Court and provide appropriate governing legislation.
  5. With respect to the Environment Act 2000, among other things:
    • set up a merits review process;
    • automatically require environmental and social impact statements on all customary land regardless of the activity level;
    • provide more detailed guidance on the matters that environmental and social impact statements should consider given the needs and rights of indigenous people to land and a sustainable environment; and
    • provide an open standing provision so that citizens and civil society can play a role in enforcing environmental laws.
  6. Amend the Environment Act or create new legislation to require corporations to pay for environmental costs of development projects and require a bank guarantee to satisfy any court or other order before consents, permits, leases, licences, etc. are granted. This legislation should permit courts to pierce the corporate veil in circumstances where they cause environmental harm.
  7. Institute an immediate moratorium on all logging activity in Papua New Guinea until the above or another satisfactory plan for protecting land and customary landowners is implemented.
  8. Enact FOI legislation establishing procedures by which citizens may obtain ready access to official information as required by section 51 of the Any FOI legislation introduced should be in accordance with international law and relevant international best practice principles.
  9. An immediate moratorium on all land formalisation processes (leases and registration) until further law reform is carried out.
  10. Integrate FPIC in all relevant legislation.
  1. ISSUES DISCUSSED AT THE NATIONAL LAND SUMMIT

The remainder of our submission addresses some of the 11 issues discussed at the Land Summit. We have structured this part of our submission by referring to the Land Summit Discussion Points and Resolutions for each issue and then replying with CELCOR’s submissions.

  • Issue 1: Identification of Landowners
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

There should be a single process for identifying landowners.

2.1.1.2. Proposed Resolution

The legal and administrative framework for landowner identification should be flexible, and allow for the use of existing social structures, traditional decision making structures and administrative processes like village courts, village councillors, land courts and NID for landowner identification.

  • CELCOR’s Submission

CELCOR agrees that identification of landowners should be a single process, though only if it is a process which is able to “map” all the people who have rights and interests in the land. Given the well evidenced problems with ILGs, which in many cases have been found to not represent a substantial majority of landowners or the real landowners, processes of identification must also be vetted and verified before any development is approved.

  • Issue 2: Incorporated Land Groups (ILGs)/ Incorporation Process and Administration
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main points
  • There was unanimous agreement that the process of the incorporation and management of ILGs was long and costly. It needed to be streamlined.
  • There was agreement that the ILG incorporation process was generating bogus ILG incorporations and executives were reportedly abusing their positions. Rogue members were also abusing the decisions of ILGs.
  • There was consensus in all regional workshops for tougher penalties to be imposed on ILG executives and renegade members.
  • There was unanimous agreement from all the regional workshops that more awareness on ILGs was needed.
  • The overall consensus is that the usefulness of the ILG as a structure for organising customary landowning units to mobilise customary land for development needs to be reconsidered and drastic changes made to make it relevant.
  • There is no clear consensus on the usefulness of the ILG as a vehicle for mobilizing customary land for development.
  • Resolution

As a way of resolution, the relevance of the ILG as a vehicle for mobilising customary land for development needs to be reviewed with the view to be amended or repeal.

  • CELCOR’s Submission

ILGs are established to allow landowners to have effective control over their land or natural resources. It was intended as the main vehicle for facilitating landowner representation and benefit sharing from natural resource development.

Awareness and capacity building must be carried out in rural areas to inform people on what the law is and where they stand in relation to their rights as resource and landowners. There must be a clause in the Land Groups Incorporation Act that provides that before any project development a team must be sent in to do awareness on ILG and its legal implication for landowners and others with rights and interests in land (such as, those with use rights). The reason for this is to build capacity of landowners to hold their ILG committees and developers to account and to ensure that ILGs are composed with genuine landowners.

In Kawira v Bone, the National Court said about the current ILG regime (at [34])[17]:

Despite these changes in the law, there are still many cases involving ILGs coming to the Courts which suggests, in practice there has been no real change. There might have been some improvement on the law but compliance is still a serious issue with many ILGs being incorporated without the knowledge and involvement and approval of the entire, family, sub-clan, clan or tribe as the case might. If anything, most of the ILGs are a fraud against sub-clans, clans, tribes or land groups in whose name ILGs have been incorporated. The decision of Gavara-Nanu J., in Leo Maniwa & Ors. v. Aron Malijiwi & Ors. is a case on point. There, the defendants proceeded to incorporate an ILG and eventually secured a Special Business and Agricultural Lease (SABL) over a large portion of customary land. This was purportedly with the consent and approval of the landowners but at trial, the defendants failed to produce evidence clearly meeting the relevant requirements of the ILG and Lands Acts. The evidence adduced by the plaintiffs demonstrated that, there were no public awareness and proper meeting of the landowners at which all relevant issues were discussed and the free and informed consent and approval of the landowners were sought and given. The Court made orders declaring the SABL null and void and restored the land back to the people. Many more cases questioning the validity of incorporated ILGs are in the Courts.

The National Court has adopted its own approach to determining ILG composition with impartial land mediators required to ask important questions at well publicised open meetings facilitated, including:

  • Are the members of the land group both individually and collectively aware of the existence of the ILGs?
  • If the answer to the first question is “yes”, is it one they incorporated in accordance with the ILG Act in that they had a meaningful part amongst others in its formation, adoption of its constitution, election of the office bearers and so on and they have given their FPIC and approval.

These meetings and this type of questioning ought to be conducted when each ILG is created. As the National Court said at [38]:

In the particular difficult prevailing circumstances and settings of our country, such consent and approval can be best sought and secured through a public process. The current practice of the Registrar acting purely on what he is told or is presented with on paper is not helping to achieve the true intend and purpose of the Act.

Again, CELCOR considers that there is potential for compensation claims because customary landowners have not been given the full protection of the law under the Constitution (s.37(1)).

The process of forming ILGs has been subject of much documented abuse. Because it paves the way for development and land formalisation, the registration process must be properly vetted and verified, and this must be a continual obligation under every Act before an ILG is granted a right. That is, given the extent to which genuine customary landowners have been defrauded or disposed of their land, each piece of legislation concerning land dealings must contain full and detailed verification and vetting processes in accordance with the recommendations in Kawira v Bone.

We have provided at Annexure 2 the relevant recommendations from Kawira v Bone as best practice on how ILGs should be created.

  • CELCOR’s Recommendation
  • Amending the ILG Act to require, at a minimum, the process set out in Annexure 2 for the formation of ILGs.
  • A complete moratorium on any new ILG and VCLR until the Department of Lands & Physical Planning completes a full evaluation of all existing ILG’s, including on the ground confirmation of correctness of the ILG formation and application by Lands Officers (as required under the ILG Act), and until all illegal SABLs have been nullified and the land returned to the customary landowners.
  • Issue 3: Voluntary Customary Land Registration
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main points

The VCLR process is long, costly and the titles are not bankable.

  • Resolution

The relevance of the VCLR process as a legal framework for mobilising customary land for development needs to be reviewed with the view to amend or repeal.

  • CELCOR’s Submission

CELCOR urges the Government to abandon voluntary customary land registration and to repeal the Land Registration (Amendment) Act 2009. If the voluntary customary land registration system is retained it must be amended to prevent the type of abuses and corruption that have utterly undermined the Special Agricultural Business Leases (SABL) system (see, Issue 8). The Government needs to explain how VCLR will not be undermined in the same way as the SABL process and not just set landowners up for more spurious claims to land ownership and land theft. Because of indefeasibility of title, it is much harder to challenge the process. The Government has not addressed the systemic issues found in the COI for SABLs which brought the corruption of the SABL process and land administration and governance into the light. It is difficult to see how the Government, therefore, considers that VCLR will not be beset by the same problems and just lead to another land grab. The governance structures are simply not in place to adequately address exploitation of landowners and land formalisation processes.

Moreover, we are also concerned that the name (voluntary customary land registration) is misleading. Registration is a foreign legal concept and has important consequences for customary land (it changes the nature of its tenure and the laws and rules that govern it and requires customary landowners to use lawyers to resolve disputes about land). The name suggests to citizens that they are merely registering (in a descriptive sense) their interests in land to protect it. There is a lack of education and awareness in the community and among customary land owners of the consequences of voluntary customary land registration, including that it is no longer subject to customary law.

Further, landowners need to be made aware of the consequences of land transactions and that land can be alienated (if there is a default on a mortgage, for example).

In other words, the Government has an obligation to ensure that citizens are properly educated and given full information about the legal consequences of voluntary customary land registration. In this respect, the Land Registration (Amendment) Act 2009 must be amended to ensure FPIC and that all landowners are aware of the consequences of land registration.

  • CELCOR’s Recommendation
  • Abolish VCLR.
  • If VCLR is not abolished, ensure legislation requiring FPIC before land is registered.
  • Issue 4: Benefit Sharing
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission

2.4.1.1. Key message

There is a need for a “structured benefit sharing arrangement” for benefits generated from the mobilization of customary land for development.

2.4.1.2. Proposed Resolution

Proposal for the development of a legal framework that could guide the mobilization of customary land for development, and distribution of benefits from the developments.

2.4.1.3. CELCOR’s Submissions

This is an important issue because it ensures that landowners are adequately compensated when land or resources are acquired for a public purpose and benefit from development on their lands. We repeat what we mentioned above about the need for sustainable development and for the proper implementation of free, prior and informed consent, which has not been implemented in PNG despite an obligation on the State under international law. The scope of benefit sharing should be discussed at the free, prior and informed consent stage expressed in a percentage so that indigenous landowners can properly consider the costs against the benefits of each project.

Community protocols dealing with benefit sharing agreements should be implemented to empower landowners and ensure their full and effective participation. Where a community protocol does not exist, it may be worth establishing one to formalise the customary decision-making process and establish representatives of the community/collective.

Generally, the broader community should be involved in decision making in a way that is accessible (broad with sufficient time across a range of mediums) and sensitive to local processes, in particular, recognising customary decision-making processes and supporting local representative institutions. Full and effective participation should include FPIC, procedural justice, gender equity, as well as consultation with elders and youth. This involvement should continue through to implementation and can also include reviews through monitoring and data collection.

Further, as we have already suggested above, there are real issues under the Constitution and in international law concerning who owns mineral wealth in PNG (see, the Oil and Gas Act 1998 and Mining Act 1992). As a result of the Government claiming to be the owner of mineral wealth, interests of landowners are not adequately provided for. There needs to be a law reform in this area including an increase in the percentage of benefits flowing to the indigenous landowners and adequate compensation for loss of land, resources and connection to land and including the right of land owners to veto a project (under FPIC provisions).

Entry to the land is subject to compensation as provided in respective sections in the Oil and Gas Act 1998 and the Mining Act 1992. The compensation is supposed to be paid before the licence holder enters the land, however due to poor implementation of the requirement by the Department, responsible landowners are affected by the process which results in prolonged delay of compensation payment. A criminal offence should be inserted into the Act which prohibits the developer to enter the land for the purposes of carrying out the project until compensation and a payment timeline is agreed. Any agreement should be subject to review by the National Court to ensure its justness and compliance with the Constitution with ample jurisdiction for the Court to increase the amount of compensation.

  • Issue 5: Improving efficiency in land administration
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission

2.5.1.1. Main point

The takeaway point in this issue is that “Land is fundamental to nation building and yet is poorly understood and managed in PNG”.

Reforms into the systems, and processes of land administration within the Department of Lands and Physical Planning (DLPP) is fundamental for the effective administration of land in the country.

2.5.1.2. Proposed resolutions

  • Elevate the status of the role of land in nation building by exploring options to promote the status of the Department of Lands & Physical Planning to Central Agency level.
  • Establish an independent agency to administer the customary land in PNG.
  • Reforms into the systems and processes of land administration within the DLPP must complement efforts to reform customary land tenure with the view to ensure credibility in the systems and processes that will facilitate and administer customary land.

2.5.1.3. CELCOR’s Submissions

The problems with governmental land administration are notorious and have been the subject of multiple papers and Government inquiries. We will not repeat these issues here, except to say that because of the environment of weak governance, there are huge power and information imbalances which favour non-citizens and foreign capital, which is a state of affairs that cannot continue. Until land administration and governance are improved, CELCOR calls on a moratorium on all land formalisation processes affecting customary land.

Further, all legislation dealing with land formalisation, the environment and development must be amended to give the courts greater oversight over all departments involved in land dealings to ensure greater transparency and accountability. CELCOR recommends that creation of land and environment court or a stream in existing courts (which includes a requirement to take into account ecological sustainable development and the rights of indigenous peoples).

Moreover, there should be merits review appeal rights to a body of experts with suitable scientific, cultural, community and environmental qualifications with respect to environmental permits, which will vastly improve environmental decision-making across the whole of Government.

2.5.1.4. CELCOR’s Recommendation

  • Department of Lands & Physical Planning to review its existing management and implementation structure to make sure it is effective and efficient.
  • Amending all legislation that deals with the environment or development (i.e. dealing with land outside customary law) to include court oversight provisions.
  • Issue 6: Land Dispute Resolution
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

The systems and process for land dispute resolution requires sustained resourcing and a major overhaul

  • Proposed Resolution
  • Review the systems and processes of land disputes settlement with the view to introduce efficiency as an integral part of customary land tenure reforms.
  • Elevate the status of the role of land in nation building by exploring options to promote the status of the Department of Lands & Physical Planning to Central Agency level.
  • Establish an independent agency to administer the customary land in PNG.
  • CELCOR’s Submissions

The land mediators need to be given training and courses on the Land Dispute Settlements Act 1975, especially about the processes of solving customary land disputes, the roles they play in land dispute settlement processes and the different ways in which the land dispute can be solved according to the Land Dispute Settlements Act 1975.

It is also a very expensive exercise for the village people involved in the customary land dispute settlement process, especially when the matter is referred to the Local Land Court or the Provincial Land Court. The courts are located in the provincial centres and are costly for the parties to attend Court. The Local Land Court should be established in the Districts where the Local Level Government establishments are located and are more easily accessible by the people. This expense and complexity is compounded with VCLR, for example, which operates via foreign legal principles and the need to obtain lawyers when land has been registered through fraud.

  • Issue 7: Improving customary land registration

We have discussed this issue under issue 3.

  • Issue 8: Special Agriculture and Business Leases (SABLs)
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

The status of SABLs remains an issue that needs policy clarity and decision.

  • Proposed Resolution
  • Resolving the SABL issue in light of the Commission of Inquiry will buy credibility to the customary land tenure reforms. Hence, a clear policy on the future of SABLs and what to do with the existing SABL titles is required.
  • Furthermore, review of the relevance of the SABL process within the context of the land tenure reforms.
  • CELCOR’s Submissions

The current SABL process is a complete failure and must be abolished. Our position merely restates the overall recommendation of the Government’s own Commission of Inquiry into Special Agricultural and Business Leases (COI), which was reported in June 2013. While the SABL mechanism was created to empower customary landowners, it no longer serves that purpose because corrupt public officials and unscrupulous individuals and corporations have hijacked it, leaving little to no benefits for customary landowners.

SABLs have also been the principal driver of deforestation in PNG. For example, in 2019 the International Union of Forest Research Organisation has now listed PNG in fourth place on its global list of countries in danger of losing accessible forests. Over 80 per cent of PNG’s accessible rainforests either are degraded or have been cleared above 30 per cent threshold. This is a customary landowner issue and has been enabled by a legal mechanism. Any land reform must ensure that such vast irreparable destruction never occurs again and is not allowed to continue.

The COI also found that the practice of logging is made under the pretext of genuine SABL activities, often obscured by “fancy agriculture development plans and project development agreements” under which loggers obtain permits to log huge tracts of rainforest. In other words, SABLs are not used for development (its purpose) but are used to access natural resources. We also addressed this issue above.

The COI found that of the 42 SABLs investigated (by the two reporting commissioners) only four SABLs had obtained genuine landowner consent. In other words, the remainder of the SABLs (38) are unlawful and cannot stand. Moreover, it would be difficult to see how, on that basis, anyone could trust the lawfulness of any other SABL given the COI’s findings of the systemic problems with the SABL system. The Government should not delay any further and must immediately pass legislation enabling it to cancel all SABLs. It could provide for a mechanism in the legislation for those insisting that they hold an SABL which has not been tainted by an irregularity (including, lack of landowner consent, failure to follow procedure under the Land Act 1996, corruption or are not genuine SABLs for agricultural projects) to prove this is the case in a court.

As we have already submitted, the Government’s delay with respect to this issue exposes it to compensation claims under the Constitution.

If a new lease system is proposed, it must include the type of protections that we have discussed above and reduce the term of the lease so that so many generations (three to four) do not lose their rights to hunting, fishing, subsistence, burial and sacred sites. Moreover, customary land lease should only be granted after a project is proposed so that a proper assessment can be made of the type of land required, whether it is land that is needed to support livelihoods or has cultural significance and the timeframe required for the project.

  • CELCOR’s Recommendations
  • Abolish the current SABL process.
  • Immediately, implement the 2013 Commission of Inquiry recommendations accordingly: to cancel the relevant 27 SABLs, require the surrender of the two relevant SABLs and suspension of the three relevant SABLs.
  • Cancel all other SABLs via legislation (except for the four that the COI found were genuine). A list of these SABLs is enclosed as Annexure 3. However, we further recommend that holders of SABLs be given one month to register their SABL for review. The relevant Amendment Act should provide for a court-based process where the SABL holder is required to prove its validity in order to keep it, and the Public Solicitor is given a role as a contradictor in circumstances where there is not one. A specific timeframe should also be set for this process.
  • If any other lease process is enacted, ensure that it complies with the overarching principles that CELCOR has set out above and in this section.
  • Issue 9: Freehold Titles
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

There is increasing cases of abuse of freehold titles and the financial sector is refusing to accept freehold titles as collateral for mortgage.

  • Proposed Resolution
  • Review the Land Tenure Conversion Act within the spirit of the reforms to customary land tenure with the intent to amend or repeal.
  • CELCOR’s Submissions

We repeat our submissions with respect to VCLR. The Government should not allow for land registration or conversion until it can ensure protection to the vast majority of landowners against land dispossession.

  • Issue 10: Conflicting land use and titles/ licences over the same piece of land
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point:

Conflicting land uses facilitated by different government agencies results in different types of titles/licenses to the same parcel of land.

  • Proposed Resolution:
  • Harmonization of relevant laws.
  • Improved coordination between relevant Government agencies.
  • Creation of central database of leases, licences, etc.
  • CELCOR’s Submissions

Given the complexities of landownership in PNG and the various rights and interests in land, significant attention needs to be given to this issue. We are concerned, for example, that VCLR does not adequately deal with this issue and the concept of indefeasibility of title cannot deal with the type of social relations and interests in land dealt with under customary law. There needs to be a flexible mechanism which ensures that those with genuine interests in land are protected and not dispossessed by VCLR.

The other area where this is a major concern is regulated under the Mining Act 1992, where the Government has issued licences and leases covering the entire country. Such an approach is contrary to rights under s.53 of the Constitution and the human rights of indigenous peoples. This issue is of utmost importance and must be addressed by the Constitutional and Law Reform Commission that we have proposed takes into account the overarching principles discussed above.

  • Issue 11: Underwater lease/water ways
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

There is conflicting understanding and the application of law and processes dealing with the various rights (ownership, use and access rights) over under water leases and resources therein and water ways in PNG.

  • Proposed Resolution

Establish a process for policy dialogue and debate on the legal and customary interpretations and their applications with the view to develop clear policy, legal and administrative frameworks.

  • CELCOR’s Submissions

CELCOR supports this dialogue as long as it includes customary landowners.

  • Issue 12: Integrating traditional urban villages into town planning/Urban growth and expansion
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

The idea of integrating urban villages into urban planning is critical for the development of viable towns and cities in PNG.

  • Proposed Resolution

Establish policy and legal pathways for the integration of urban villages into towns and cities and as an integral part of customary land mobilisation.

  • CELCOR’s Submissions

We refer the Committee to the overarching concerns, law reform principles and overarching recommendations discussed above as they are relevant to ensuring that development (urban growth) is sustainable, respects the environment and includes indigenous landowners in the decision-making process. These are minimum requirements.

2.13. Issue 13: Land Compensation

  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

Land compensation claims cuts across alienated land, customary land used by utility service providers and the State, and land accessed by resource project developers.

  • Proposed Resolution

Establish a process for policy debate with the view to establish legal and administrative pathways for addressing each of these issues as part of customary land tenure reforms.

  • CELCOR’s Submissions

We refer the Committee to the overarching concerns, law reform principles and overarching recommendations discussed above.

2.14. Issue 14: Legal vs Customary Rights ownership

  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

The lack of proper land tenure administration and harmonisation of laws causes conflicts in rights and interest as to ownership, possession, and use of land.

  • Proposed Resolution

Establish a clear policy dialogue process for public debate on the need for clarity and the harmonisation of laws dealing with legal versus customary ownership rights over minerals, oil and gas, sea, water ways (river systems), and alienated (State or Mission) owned land as a complementary process for the effective mobilisation of customary land for development.

  • CELCOR’s Submissions

We have discussed this issue above, including under issue 5 (at [2.5]), and under issue 10 (at [2.10]) and we further refer the Committee to the overarching concerns, law reform principles and overarching recommendations discussed above.

2.15. Issue 15: Bankability of land titles

  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

Security of land tenure with the view to ensure land titles are bankable is fundamental.

  • Proposed Resolution

Reforms into customary land must ensure security of tenure and bankability of titles.

  • CELCOR’s Submissions

We reiterate our submissions made above at [2.5.1.3] which state our concerns with the absence of governance structures to adequately address exploitation of customary landowners and land formalisation processes. If these governance structures are not in place, it is impossible to ensure that customary landowners have the full protection of the law as required under the Constitution (s.37(1)). We further refer the Committee to the overarching concerns, law reform principles and overarching recommendations discussed above.

  • Issue 16: Economies of scale is fundamental
  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

Absence of trunk infrastructure, and high cost of developing trunk infrastructure.

  • Proposed Resolution

Reforms to customary land tenure must ensure scale land is mobilised for development given the high cost of trunk and infrastructure and complementary investments critical for making a project viable.

  • CELCOR’s Submissions

We reiterate our submissions made above at [2.5.1.3] which state our concerns with the absence of governance structures to adequately address exploitation of customary landowners and land formalisation processes. If these governance structures are not in place, it is impossible to ensure that customary landowners have the full protection of the law as required under the Constitution (s.37(1)). We further refer the Committee to the overarching concerns, law reform principles and overarching recommendations discussed above, in particular the discussion at [1.3.5] regarding sustainable development.

2.17. Issue 17: Complementary Policies

  • Land Summit Discussion Points, Resolutions and CELCOR’s Submission
  • Main point

Need for incentivising the private sector to undertake investment in land.

  • Proposed Resolution

Complementary policies such as the introduction of a Tax Credit Scheme to scale projects such as the development of satellite and or major townships on customary land in cases where there is no trunk infrastructure should be considered.

  • CELCOR’s Submissions

We reiterate our submissions made above at [2.5.1.3] which state our concerns with the absence of governance structures to adequately address exploitation of customary landowners and land formalisation processes. If these governance structures are not in place, it is impossible to ensure that customary landowners have the full protection of the law as required under the Constitution (s.37(1)). We further refer the Committee to the overarching concerns, law reform principles and overarching recommendations discussed above, in particular the discussion at [1.3.5] regarding sustainable development.

  1. FULL LIST OF RECOMMENDATIONS
  1. Direct the Constitutional and Law Reform Commission to institute a review of all relevant laws (including the Forestry Act 1991, the Mining Act 1992, the Land Act 1996, the Oil and Gas Act 1998) to protect customary landowners first and foremost and ensure, among other things:
    • customary landowners and customary land are protected in accordance with international law and best practice international principles, including those listed above at [1.3.4] and at [1.4];
    • the environment is protected through the adoption of an ecological sustainable development model suited to indigenous landholding and lifestyles and in accordance with international law and best practice international principles; and
    • the National Goals and Directive Principles and Basic Social Obligations are fully enshrined and integrated into current policy and legislation.
  2. Ensure customary landowners have the right to access justice and prompt decision-making through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights, including s.53 of the Constitution.
  3. With respect to the Forestry Act 1991:
    • immediately review all grants of permits, authorities and licences made under the Act for any irregularities;
    • institute a moratorium on all further grants of the same until a National Forest Inventory, a National Forest Plan, and Provincial Forest Plans have been developed; and
    • urgently complete the process of developing a National Forest Inventory, a National Forest Plan, and Provincial Forest Plans and ensure sufficient funding to maintain these.
  4. Set up a land and environment court or a land and environment stream in local courts up to the Supreme Court, and provide appropriate governing legislation.
  5. With respect to the Environment Act 2000, among other things:
    • set up a merits review process;
    • automatically require environmental and social impact statements on all customary land regardless of the activity level;
    • provide more detailed guidance on the matters that environmental and social impact statements should consider given the needs and rights of indigenous people to land and a sustainable environment; and
    • provide an open standing provision so that citizens and civil society can play a role in enforcing environmental laws.
  6. Amend the Environment Act or create new legislation to require corporations to pay for environmental costs of development projects, and require a bank guarantee to satisfy any court or other order before consents, permits, leases, licences, etc. are granted. This legislation should permit courts to pierce the corporate veil in circumstances where corporations cause environmental harm.
  7. Institute an immediate moratorium on all logging activity in Papua New Guinea until the above or another plan for protecting land and customary landowners is implemented.
  8. Enact FOI legislation establishing procedures by which citizens may obtain ready access to official information as required by section 51 of the Any FOI legislation introduced should be in accordance with international law and relevant international best practice principles.
  9. An immediate moratorium on all land formalisation processes (leases and registration) until further law reform is carried out.
  10. Integrate FPIC in all legislation.
  11. Amending the ILG Act to require the process set out in Annexure 2 for the formation of ILGs.
  12. A complete moratorium on any new ILG and VCLR until the Department of Lands & Physical Planning completes a full evaluation of all existing ILG’s, including on the ground confirmation of correctness of the ILG formation and application by Lands Officers (as required under the ILG Act), and until all illegal SABLs have been nullified and the land returned to the customary landowners.
  13. Abolish VCLR.
  14. If VCLR is not abolished, ensure legislation requiring FPIC before land is registered.
  15. Department of Lands & Physical Planning to review its existing management and implementation structure to make sure it is effective and efficient.
  16. Amending all legislation that deals with the environment or development (i.e. dealing with land outside customary law) to include court oversight provisions.
  17. Abolish the current SABL process.
  18. Immediately, implement the 2013 Commission of Inquiry recommendations accordingly: to cancel the 27 relevant SABLs, require the surrender of the two relevant SABLs and suspend the three relevant SABLs.
  19. Cancel all other SABLs via legislation (except for the four that the COI found were genuine). A list of these SABLs is enclosed as Annexure 3. However, we further recommend that holders of SABLs be given one month to register their SABL for review. The relevant Amendment Act should provide for a court-based process where the SABL holder is required to prove its validity in order to keep it, and the Public Solicitor is given a role as a contradictor in circumstances where there is not one. A specific timeframe should also be set for this process.
  20. If any other lease process is enacted, ensure that it complies with the overarching principles that CELCOR has set out above.

[1] See also PNG Department of National Planning and Monitoring, 2010, p.21. “Mobilisation” was consistently used by Government representatives and invited official speakers at the National Land Summit regional workshops.

[2] See, Commission of Inquiry in Aspects of the Forestry Industry (1989) and Commission of Inquiry into Special Agriculture and Business Leases (2013).

[3] There is so much international literature on this subject that CELCOR will not even attempt to list it all. However, for a recent discussion of this issue see Caroline Hambloch (2018), Land formalization turned land rush: the case of the palm oil industry in Papua New Guinea, paper presented to the Annual World Bank Conference on Land and Poverty.

[4] See, for example, Maniwa v Malijiwi [2014] PGNC 25; N5687 (4 July 2014).

[5] See, UN Declaration on the Rights of Indigenous Peoples which is a guide to the rights of indigenous people binding on PNG as a party to the Convention on the Elimination of all forms of Racial Discrimination, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

[6] Principles and Guidelines for Engagement with Indigenous Peoples (GEF Guidelines, 2012).

[7] See, CERD, General Recommendation No, 23: Indigenous Peoples, August 18, 1997; UN Human Rights Committee, Angela Poma Poma v Peru, para. 7.6.

[8] Special Rapporteur James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples, Report to the Human Rights Council, 21st session, A/HRC/21/47 (Jul. 6, 2012), para. 65. See also Anaya, 2009 Annual Report, supra note 36, para. 47 (“A significant, direct impact on indigenous peoples’ lives or territories establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent. In certain contexts, that presumption may harden into a prohibition of the measure or project in the absence of indigenous consent.”); Special Rapporteur James Anaya, Report of the Special Rapporteur on the rights of indigenous peoples: Extractive industries and indigenous peoples, Report to the Human Rights Council, 24th Session, A/HRC/24/41

[9] See, as an example, CERD, General Recommendation No, 23: Indigenous Peoples, August 18, 1997; Early Warning and Urgent Action Procedure Decision 1 (68) United States of America (Western Shoshone) CERD/C/USA/DEC/1 11 April 2006.

[10] UNEP and EDO NSW. (2013). Community Protocols for Environmental Sustainability: A Guide for Policymakers. UNEP, Nairobi and EDO NSW, Sydney.

[11] Caroline Hambloch, ‘Land Formalization Turned Land Rush: The Case of the Palm Oil Industry in Papua New Guinea’ (Paper paper presented at ‘Land and Poverty Conference 2018: Land Governance in an Interconnected World’, World Bank, Washington DC, March 2018.

[12] PNG has ratified Convention on the Elimination of All Forms of Discrimination against Women and also see UNDRIP, Article 22.

[13] United Nations General Assembly, Resolution 59(1), 65th Plenary Meeting, 14 December 1946.

[14] For example, see the 2005 annual report of the Special Rapporteur, UN Document E/CN.4/2005/64.

[15] Report of the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, UN Document E/CN.4/2000/63, 18 January 2000, paras 43, 44. The principles were noted by the United Nations Commission on Human Rights in Resolution E/CN.4/RES/2000/38, 20 April 2000, para 2.

[16] Report of the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Mr Frank La Rue, Report to the Human Rights Council, 20 April 2010, paras 30-31.

[17] [2017] PGNC 164; N6802 (5 July 2017).

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