‘Beautiful legislation’ fails to protect PNG’s environment, landowners

Papua New Guinea is a canopy-covered country, with a substantial chunk of the world’s third-largest rainforest  and some 7 percent of global biodiversity. It is home to many endemic species, from legless lizards to the amber-plumed Raggiana bird-of-paradise (Paradisaea raggiana), immortalized on the nation’s flag.

These natural wonders are ostensibly safeguarded by laws that include the Land Act of 1996, the Environment Act (2000), Forestry Act (1991), Mining Act (1992) and the Oil and Gas Act (1998). Regulations also cover everything from marine pollution to timber exports, to gaining free, prior and informed consent (FPIC) for land acquisition.

The laws “look good on paper,” says Evelyn Wohuinangu, principal lawyer at PNG’s Centre for Environmental Law and Community Rights (CELCOR), an NGO. The slate of statutes constitutes “beautiful legislation,” agrees Peter Dam from FORCERT, an NGO that works with forest communities.

But when it comes to putting environmental criminals behind bars, “it is all still talk,” Dam says. A lack of enforcement and accountability has rendered this precious paradise vulnerable, its flora and fauna threatened, and its citizens insecure.

Colonial holdovers

PNG’s current smorgasbord of environmental legislation is a legacy of colonial rule. It was handed down from Australia, which in turn inherited it from Britain. “It’s a copy and paste,” Wohuinangu says.

PNG declared itself independent from Australia in 1975, so colonialism remains within living memory; people across the country still refer to land historically connected to Britain as “the Queen’s property,” says Chalapan Kaluwin, head of environmental science and geography at the University of Papua New Guinea.

Because the nation’s laws were originally drafted for British or Australian ecosystems and (colonized) societies, a lot of them “don’t actually match what is on the ground,” Kaluwin says.

In 2009 the government launched a sustainable development strategy with a focus on community engagement, one that would build on the country’s values and beliefs for a culture-specific development paradigm. But that strategy still hasn’t been implemented. The government also has alternative development models and policies in place, based on PNG’s unique communal landownership system, which aims to take advantage of resources like the country’s rich fisheries (it accounts for 15 percent of the global tuna catch), its natural hydro and geothermal resources, its fertile land, and the ancient agricultural skills of its people. These sustainable alternatives already exist, Kaluwin says, so “why should we copy ideas from others?”

Timeless land customs

Today, only 3 percent of PNG’s land is owned by the state or in private hands. The remainder is customarily owned: land is divided according to a timeless tradition, owned by family groups or clans. Multiple clans form tribes, and tribes oversee and manage land that may be shared by numerous clans, for hunting, farming or fishing, for example. Boundaries are determined by each clan’s mediation traditions. This communal, family-based land tenure system is “very complex,” says PNG environmental lawyer Sarah Stocks.

Land is prized, and not just for its economic value as the basis for millions of people’s sustenance and livelihood; it also has tangible, personal, spiritual and cultural value.

This system of land ownership forbids land swapping or sales by individuals. “In our country land is communally owned, and in order to do something on that customary land there must be communal consensus, not just one person signing off their land,” Wohuinangu says.

To protect customary land, all land transactions must go through the state. The constitution and the Lands Act prohibit customary land from being sold or leased directly to foreign citizens or entities. Instead, it must be leased through the state. Today, an estimated 50,000 square kilometers (19,300 square miles) of communally owned land, about 11 percent of PNG’s land mass, is under a state lease.

Any kind of development on this customary land rsequires reaching an agreement with customary landowners; building a single road can require negotiations with hundreds of clans.

Under ideal conditions, these negotiations would take one to two years, says a report on acquiring land for public purposes in PNG by Australian Aid, that country’s agency for international development, previously known as AusAID. If negotiations are mishandled, it can take three, five, even 10 years.

In some cases development projects end up either completely excluding, or avoiding, customary landowners perceived to be difficult, too populous, or potentially challenging. One road project, undertaken by Australian Aid in 2000, spanned several coastal provinces, requiring negotiation with many clans. Australian Aid’s public land report says the roads’ path was ultimately based not on an optimum, safe and efficient route, but on avoiding the perceived difficulties of customary land negotiations.

A hunger for infrastructure

Adding pressure, controversy and tension to these negotiations is PNG’s dire need for functioning public services and reliable infrastructure.

The Pacific nation’s lack of health services has led to notoriously high maternal mortality rates and deaths from preventable disease. Malnutrition is a leading cause of death for children under 5 years. Only 12 percent of the population has access to electricity, while a shortage of public education, funding, facilities and staff has resulted in one-third of the population being illiterate.

While landowners are “smart, they are just not literate,” says Gary Juffa, the governor of Oro province and a prominent opposition leader. “My grandmother, this woman never went to school, but she speaks 20 languages […] her knowledge of clans, medicines and herbs is profound.” However, he says, “the greater majority of people are illiterate, they are not educated in the Western sense.”

This puts them at a major disadvantage when it comes to making Western-style land deals. Many landowners lack “billing and negotiating skills,” says Kaluwin.

Desperate for basic services, people are willing to hand over their land when companies or the state promise to provide much-needed roads, bridges, schools or hospitals. When these promises are barely met, or go unfulfilled, landowners are left without their land and without the means to demand that developers uphold their side of the bargain.

There’s also a gap in cultural knowledge, on both sides. Developers don’t understand the hospitable cultures of rural PNG, while customary landowners welcome developers as guests and “do not know the financial context” of the negotiations, Kaluwin says. It’s part of rural PNG culture to welcome outsiders as friends; “We say, you are my friend, please come and share this,” he says.

Kaluwin recalls working in a copper mine in Bougainville province as a student. The state and Australian mining giant Rio Tinto approached landowners with “a benevolent but ignorant attitude,” he says, and the customary landowners “just embraced all these new people.”

“Next we had Bougainville World War Three,” Kaluwin says, referring to the decade-long conflict, beginning in 1988, that the Bougainville copper mine development sparked, in which thousands of people lost their lives.

Clan betrayal

The government and international companies are not the only entities in PNG taking advantage of desperate situations. The consent process can be hijacked by unscrupulous clan members. “There are a few people within customary groups that may want to make a quick buck, they then go behind the rest of the clan,” Wohuinangu says.

Land-hungry companies have been known to make deals with individuals who are part of communal landowning families but who live in cities like the capital, Port Moresby, rather than in the proposed development areas.

These urban clan members will claim to be the sole representative or owner of the land, and sign contracts in the capital under that pretext, while “people back in the community know nothing,” Dam says. In one prominent case, landowner groups claim that just 47 Port Moresby-based individuals  signed away land rights for the nation’s biggest infrastructure project, the $19 billion PNG LNG natural gas plant run by ExxonMobil.

This practice goes against both legislation and traditions, Wohuinangu says, repeating that in PNG, “there must be communal consensus, not just one person signing.” PNG law clearly stipulates a step-by-step process for gaining consent for land development projects, he says. But companies do not obtain “proper informed consent, and do not comply with the various steps for obtaining land and resources,” Stocks says.

Australian Aid also notes that the few records the PNG Department of Lands does have to assist developers with infrastructure planning are “wrongly filed, mislaid” or “old or missing”; improperly stored documents decay quickly in the country’s tropical climate. In some cases, this leaves the state stuck and embarrassed, unable to provide proof of land acquisition.

Little recourse for landowners

Under PNG’s land management regulations, the government is responsible for maintaining an accurate, up-to-date database of tenure for all land under state leases. Experts want to see this law enforced and the database expanded to cover all communal land. Information gathering should be done systematically, “on a regular basis with regular resourcing,” rather than in the ad-hoc manner responding to interest from developers, says Gwen Sissiou, general manager of PNG’s Climate Change Development Authority (CCDA).

Wohuinangu says land surveys are undertaken on a project-by-project basis, with developers’ wishes prioritized while state agencies attempt to oblige. When a mine, road or building is proposed, the developer identifies and approaches the people it believes are the customary landowners.

It’s only after the developers have uprooted forests or illegally entered land that many customary landowners protest or raise objections. According to FPIC legislation and other land regulations, “this is wrong,” Wohuinangu says.

Exacerbating the state’s lack of capacity to manage land acquisitions is the blight of corruption.

Legislation is “only as good as the people who implement it,” Stocks says, and with PNG ranked 135th out of 180 countries in Transparency International’s latest Corruption Perceptions Index, the country’s bureaucrats are “right down there.”

Even well-intentioned state agencies are overworked, understaffed and underfunded, Sissiou says. There might be “only one person, or they don’t have the budget, or they don’t even have just a vehicle to be able to run up and see, even just to sit down and talk to people,” she says.

As a result, companies can “get away with murder,” Stocks says.

Wohuinangu cites a common example of corporate exploitation aided by corruption in PNG: the notorious special agricultural and business lease (SABL) program, designed to allow the state to grant sub-leases for cash-crop projects. Legally, SABLs are to be granted for sustainable agriculture projects, but the projects “hardly ever happen” in that form, Wohuinangu says. Instead, so-called agriculture developers “come in and they just log the whole area.” In 2014, reports indicated that illegal logging accounted for as much as 70 percent of PNG’s timber industry. Four years later, a report by the environmental NGO Global Witness concluded that “the PNG government has still not learned” and there are still “widespread illegalities” throughout the country’s timber trade, including numerous fraudulent SABLs.

When the land is returned to a clan, “there is no rainforest, everything is gone,” Wohuinangu says; whole rainforests are “wiped out clean.”

“These big companies, these are shrewd guys; they don’t actually care,” says Kaluwin, the environmental science professor. “They are here to make money.” He says these “elite [business] groups are basically ruthless: economic-single-minded, and they don’t give a damn

In response to betrayals, incompetence and corruption, landowners take up arms, damage and shut down infrastructure, and sometimes threaten violence in retaliation. Customary landowners “understandably become frustrated, anxious and confused,” says the Australian Aid report.

On Jan. 11, for example, frustrated customary landowners shut down a copper and gold mine in Morobe province.

Customary landowners who try to seek justice through courts generally find little satisfaction due to PNG’s expensive, lengthy legal proceedings, which can take 10 to 20 years. “It’s ridiculous!” says Stocks, the lawyer. Most people in PNG don’t have the capacity or finances to take corporations to court under those circumstances.

CELCOR, currently the sole surviving legal aid NGO in PNG, provides free assistance, but is overwhelmed with requests and cannot meet current demand, Wohuinangu says.

The way forward

For a newly independent state like PNG, changing the way land deals are made could take decades. To shake off its colonial past, build and keep public trust, stamp out corruption, and standardize administrative processes will require years of effort, not only from public servants but also from civil society.

Wohuinangu suggests an action that can be taken now: those lucky enough to receive legal education (and numbers have “increased tremendously,” she says) should share their knowledge with fellow citizens. “The onus is on us people, to go back to our communities, to educate our people in the rural areas and villages,” she says. “If those who were educated don’t go back to assist their people there, then we are also partly to blame, because we were fortunate to get this knowledge and so we have to help our people as best as we can.”

Dam says he has already noticed an increase in small acts of opposition, even in official meetings. When unfair land grabbing takes place in PNG, “people are now speaking out,” he says.

“People are getting fed up with the corruption,” Dam says. “There is a change.”

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Article published by Isabel Esterman

Archive, Biodiversity, Conservation, Environment, Environmental Law, Environmental Politics, Governance, Indigenous Peoples, Infrastructure, Land Conflict, Rainforests

Asia, Oceania, Papua New Guinea, Southeast Asia

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