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1900-1930, Postcard, in Teop Bay, Bougainville, 16 Indigenous Boys Wade in the Water near the Shore, while a handful of European Men stand on the Land near Boats, A larger Boat is visible on the Water Sailing towards the Shore, PNG BOUGAINVILLE, Mission of Northern Solomons, Unknown Photograther (image provided by Peter John Tate)

1900-1930, Postcard, in Teop Bay, Bougainville, 16 Indigenous Boys Wade in the Water near the Shore, while a handful of European Men stand on the Land near Boats, A larger Boat is visible on the Water Sailing towards the Shore, PNG BOUGAINVILLE, Mission of Northern Solomons, Unknown Photographer (image provided by Peter John Tate)

By Peter Donigi

The World’s Indigenous Peoples day came and went without much fanfare in Papua New Guinea on 8 August 2013. The foreign owned media would not be interested in publishing anything that would undermine the interest of foreign capital in PNG. Keeping people ignorant about their rights would be the standard bearer for exploitation of the land and resources from Papua New Guinea.

I have made it a habit of writing about the World Indigenous Peoples’ day. This year it appears the media are not interested.

In any case below is what I wrote which was not published.

Papua New Guinea is made up of over 840 different nations if we just go by the number of languages alone. So we have 840 different indigenous peoples with their own tribal system of government, language, traditions and customs before the arrival of Europeans. We have traded with each other, have our own laws as to intellectual property rights (example – cultural rights to carvings, bilum making designs, traditional currency and other commodities amongst the Sepiks and pottery and sago trade between the Motu villages of Central Province and Gulf Province) as well as other rights to harvest and trade in certain resources as for instance the harvesting and trading of oil in Southern Highlands, Hela and Enga Provinces. Note here that foreign capital would argue that Papua New Guineans do not know the value of oil when in reality oil has been harvested and traded in the highlands long before Europeans set foot in the highlands.

So what rights do we have as indigenous peoples?

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.

Article 17 of the Declaration states:

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

In 1975, Papua New Guinea gained independence, adopted its Constitution and became a member of the United Nations. Section 53(5)(a), (c) and (d) of the Constitution specifically states that right to inheritance according to custom is protected and cannot be compulsorily acquired or terminated by the State or the Government. This section alone elevated customary law on inheritance of property rights into constitutional law and prohibits its termination by an ordinary law by parliament. There is a marked difference between the customary rights to inheritance and the other constitutional rights. These other rights can be regulated or qualified or restricted by a law that complies with Section 38 of the Constitution. This right to inheritance according to customary law is a right that cannot be regulated, qualified, restricted or terminated by a law that complies with Section 38. That means that this right is supreme and cannot be touched by parliament.

In my 40 years of practicing law in Papua New Guinea, I have yet to come across a customary law that states that we only own rights to the surface of the soil down to 6 feet. Customary law recognises ownership from the top to the centre of the earth. There is a vertical boundary. There is no horizontal boundary. In this respect, customary law is identical to natural law which is practiced and recognised in many parts of the world.

Horizontal boundaries were an invention of the English settlers in Australia for the purpose of dislodging the indigenous peoples of Australia from their natural rights. They brought this practice into Papua New Guinea after WWI.

If we go back to history, you will notice that in New Guinea before WWI, the Germans recognised and applied natural law and entered into contracts with indigenous peoples of New Guinea. The British in Papua did not do that. Instead they set about creating a protectorate ostensibly for protecting the indigenous peoples – in the language of Commodore Erskine “that evil disposed men will not be permitted to occupy your country, to seize your lands, or take you away from your homes” when raising the British flag in Hanubada on 6th November 1884).  After WWI when the British turned Papua over to Australia, Australia systematically removed the rights of New Guineans to enter into contracts in respect to their land and property and brought New Guinea under one administration with Papua. In the process they amalgamated and applied Australian law to both territories thereby setting the foundation for stealing the minerals from Wau and Bulolo during the gold rush period of the 1930s and subsequently after WWII entered into a contract with CRA to exploit gold and copper from Bougainville. Bougainville was part of German New Guinea and their rights to gold and copper under natural law were destroyed ostensibly for the benefit of Papua New Guinea but the agreement was so one-sided that all the gold, copper and silver were taken out of the country by CRA. None were retained in Bougainville or Papua New Guinea.

I should point out that the pre-independence law that validates the Bougainville mining agreement was adopted by virtue of Schedule 2.6(2) of the PNG Constitution as part of the law of the independent Papua New Guinea. However, it is stressed that all laws adopted by that provision in the Constitution are subject to the Constitution. That simply means that any provisions of these laws that are inconsistent with the Constitution are automatically null and void.

It is therefore clear that the 1967 Bougainville mining agreement and the pre-independence law that terminated the rights of Bougainvilleans to gold, silver and copper and any other minerals under their land became unconstitutional on independence day by virtue of Section 53(5)(a), (c) and (d) of the Constitution mentioned above.

CRA therefore does not have any rights to Bougainville and must account to Bougainvilleans for all the gold, silver and copper taken from Bougainville since the first day of mining.

In 2007 the United Nations adopted the UN Declaration on the Rights of Indigenous Peoples. Article 26 of that Declaration states:

  1. 1.      Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
  2. 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.
  3. 3.      States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs traditions and land tenure systems of the indigenous peoples concerned.

The Ministers of the Organisation of Economic Cooperation and Development (OECD) in May 2011 adopted a Code for Multinational Corporations (MNCs) which requires the MNCs to observe international law on human rights including the United Nations Declaration on the Rights of Indigenous Peoples and to use their financial and economic power to influence the governments of the countries in which they operate to implement human rights.

So it is always my argument that Section 5 of the Mining Act and Section 6 of the Oil and Gas Act are unconstitutional as they vest all minerals and oil and gas under customary land in the State contrary to Section 53(5)(a), (c) and (d) of the Constitution. Unless there is change to the legal regime for exploitation of resources on, in and under customary land, there will always be poverty in the country long after the closure of all mining and petroleum projects in this country. We have seen what happened in Wau and Bulolo gold rush period. We have seen what happened in Misima. The people are no better off than before the mining in those places.

Last year, I was invited to a conference of indigenous lawyers in Waikato, New Zealand. At the conference Mr. Mick Dodson representing Australian aboriginals spoke of the native title legislation in Australia. I asked him whether native title in Australia recognised their right to land and resources on, in and under their land. I proffered that unless native title in Australia does that it is a useless piece of legislation. In reality all it does is to give the aboriginals the right to be consulted.

My arguments was supported by a New Zealand Maori lawyer who presented a paper to show that without the title over tribal land and in the name of the tribal company, their tribe would not have built a geothermal power plant on their tribal land and sold electricity to end-users. In her presentation she showed that their tribal company was then capitalized to $700 million from geothermal power sales and were branching into new commercial activities like dairy farming and other businesses.  This example means that the PNG Government should not take away the right of landowners to develop and sell electricity to PNG Power. In fact the government should provide guarantees for landowners to enter the electricity generation business.

Victoria is the only State in Australia where the electricity industry is 100% de-regulated. There are 14 retailers of electricity and about five or six carriers. The carriers own the hardware – the power lines, poles and reticulation structures. The retailers either produce their own electricity and sell to end-users or buy electricity from other generators and sell them to end-users, using the carriers’ hardware. In PNG, the PNG Power could be a carrier and retailer and all generators should be owned by landowners. So for instance, the proposed geothermal power plant in Rabaul should be owned by landowners and the proposed Brown River hydro-scheme or Hydro-schemes of Rouna and Yonki should be owned by landowners.

This practice should also be applied in the telecommunications industry where the landowners of repeater stations should be the carriers and the retailers should be private companies whilst the government could limit itself to licensing and regulating the industry.

The World Bank and Asian Development Bank and multinational corporations should assist in the fostering of recognition and application of human rights including the rights of indigenous peoples in this country. For them to comply they will have to insist that PNG government implement the declaration on the rights of indigenous peoples as a pre-condition to provision of funds for these commercial – infrastructure projects.

I hope this will assist policy makers in PNG and landowners to come together to find a middle road for all to benefit. We should not have the government and the investor in any major project in this country. In my view the two parties should be the landowners and the investor and the State/government should only be in the business of regulating the industries and raising taxes from commercial enterprises including landowners.  The government should not compete with its own citizens in commercial activities. To do so is to create poverty.

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