Government puts foreign interests above the law and demolishes an important democratic principle

By passing amendments to the Environment Act, the government has put foreign companies above the law; allowed their commercial interests to trample all over the rights of Papua New Guinea’s traditional landowners; and undermined our democracy by removing the fundamental protection of the separation of powers.

On May 27th the government rushed through Parliament amendments to the Environment Act (see pdf document below) which give to the Secretary of the Department of Conservation new powers to approve activities by mining and petroleum companies without consulting traditional landowners or securing their agreement.

This is a fundamental denial of the traditional rights of landowners but the changes to the law do not end there. 

FIRSTLY landowners are also being denied the right to challenge what the government allows mining and petroleum companies to do. The amendments allow the Environment Secretary to approve activities and any such approval is FINAL AND CANNOT BE CHALLENGED IN ANY COURT. So no matter how outrageous or unfair the approval, the people will have no way of challenging it.

SECONDLY, and worse still, the amendments state that when the company carries out the approved activities it cannot be sued, whether in tort or any other law and the activities cannot be an offence and cannot be unlawful.

This means that no matter what harm the company causes to any person or group of persons they will have no recourse to the law – even for an oil spill on the scale of that unfolding right now in the Gulf of Mexico.

These two amendments effectively take away all a citizens traditional rights (rights developed over tens of thousands of years); common law rights (rights that the courts have developed over hundreds of years); and removes any criminal liability.

Companies are effectively being given carte blanche to do what the hell they like and cause as much damage as they want and nobody can do anything to stop it or claim compensation.

As if this were not enough, the changes to the Environment Act effectively remove the last pillar of our democracy.  

Democratic government is based on the separation of powers where the independence of the judiciary, executive and Parliament are closely guarded so that each can act as a check and balance on the other.

Already, in PNG we have seen a fundamental weakening of our democracy with the loss of the separation of the Executive (Prime Minister and National Executive Council) and Parliament. As the government controls so many MPs Parliament has long ceased to be an effective check or balance on the policy and legislation put forward by the Executive, and with the increase in the number of Ministries to 32 the Executive already holds the numbers to constitute a quorum in Parliament without even informing the rest of the MPs.

But our democracy survives, or has until now, because we still had recourse to the judiciary to challenge any action by the Executive or Parliament.

But now the Executive has decided, and Parliament has approved, some Executive decisions shall be exempt from the scrutiny of the courts and thus all individual rights in respect of those decisions have been removed. This is totalitarian, unjust and undemocratic.

The fact that the changes to the Environment Act were rushed through Parliament in a single day with no effective debate or scrutiny only serves to emphasize not only the loss of the separation between the Executive and Parliament, but also exactly why that distinction is so important in maintaining the other freedoms in our society and, crucially, protecting the independent scrutiny of the judiciary.

This is occurring not just because many of our politicians are too stupid to know what it is they are doing, it is occurring because the executive has been captured by powerful foreign interests, in this case the Chinese State which owns the Ramu Nickel Mine and Exxon-Mobil (the most profitable corporation in the world and one whose PROFITS are larger than the economies of ninety-three nations). 

If you feel this is overly dramatic, then you need look no further than the preamble to the new Act which states,
“The law is being made in light of the recent court decision [Ramu nickel mine] that has exposed resource projects to the risk that any permits granted by the state in satisfaction of legal and scientific requirements may not be enforceable… all major mining and petroleum resource projects (such as [Exxon Mobil] LNG) are particularly at risk affecting the economy and therefore a matter of national interest....”
In PNG our democracy has been taken away and it is the Chinese and Exxon-Mobil who now set the rules by which our resources will be removed while we endure the social and environmental consequences without any recourse (except, of course, to what our Constitution reminds us never to lose, our unique and innate Papua New Guinean ways).  
PDF icon Amend Enivrn Act-1.pdf421.53 KB


to my simple mind this is a FORM OF GENOCIDE AT ITS BEST DISHED OUT BY THE GOVT OF PNG FOR THE PEOPLE OF PNG. This is also arrogance at its best and might I add what a bunch of puppets we have in the Haus puppeteer-ed by foreign interests. Why on earth give preference to, and protect some foreign interest over the people of PNG? There MUST BE A REASON BEHIND SUCH MOVE TO SEE THE DEMISE OF DEMOCRACY IN PNG WHICH I RECKON WARRANTS FURTHER INVESTIGATION. I do really hope they have not been cashed up in some o/seas accounts to go down this track?Truly and totally unbelievable what this govt is up to gauging by recent turn of events of national interest n importance...Lord save us!

While the heat is on, I would like to post a few comments here to air my view of this issue...

We all are for change/progress/improvement/betterment...

How do we archieve that as a nation? One way to do so it to work with our government, elected representatives & leaders and policy makers.

One of the main impediments/factors stolling progress and development in PNG is landownership [which comes in a way or compensation]. Surely we own the land, but aren't we also dying for development which will lead to better living patters and life style...?

If we are serious about our land, as traditional land owners, why can't we register our land and make it a legal entity which we can then be able to fight out in court of law should anyone want to rip our resources without our consent...
The way it is now, we are claiming the land to be ours, but hey, we are in the 21st century hence were is your proof that confirm your ownership to that land...? verbal?
Give me a break...

People, if we need and want change, better change, we need to change some of the ways we think and behave and do the things we do...
the more we stick to our traditional style and patterns, we will only be the worse enemies to ourselves.. not the investors or people from outside...

My piece of mind...

All sides need to be discussed. Many development projects in PNG are thwarted because of greedy landowners, too. Roads and other construction projects are often delayed and even abandoned because landowners think that they deserve millions of kina in "compensation" for these projects, and often they want their compensation in a form that is annually and lasts forever (from generation to generation). This is one reason that PNG doesn't has so few roads, and the capital city of Port Moresby isn't linked by roads to any other major city (like Lae). The government cannot afford to make landowner payments forever to landowners for a road going through their traditional land and also pay to maintain the roads. Language communities in PNG do not even pay property taxes, and so this stagnates development throughout the country. You have communities who pay virtually nothing into the government system but they expect to get lots of money from the government for schools, medical services, roads, airstrips, water projects, etc. Many road projects, school projects, etc. have been stopped because landowners cannot agree on how much they should get and for how long.

When a big company comes into PNG, they are faced with many things that they aren't faced with in many other countries. In many other countries, land is zoned for certain things, and there are restrictions as to what land owners can charge for. Land can be purchased or leased without sudden changes in negotiations or threats from land owners to burn down your operations if you don't meet their demands (which are ever-changing in PNG). Sometimes landowners do make unreasonable demands and expect everyone in their clan to be paid millions forever (even beyond the life of the company!). This makes many projects in PNG unviable, and keeps many large companies from ever investing in PNG and opening up shop. Even if the first generation agrees to something in a contract, future generations can rise up and demand additional compensation -- and the threat cycle begins again.

We often talk about how the poor landowner is shafted. This is true, and it happens all of the time. But the flip side is that some landowners make unreasonable demands that keep the country from being able to prosper. When a company comes in like the Liquified Natural Gas (LNG) project, the landowners become almost euphoric over the possibilities and begin to imagine millions of kina for every man, woman and child forever. They begin to imagine having everything they have ever wanted and then some. There is no limit to what they think they should get because they cannot even fathom what a million kina even looks like. They don't have any way to compare the value of a million kina and, say, a billion kina --only that a billion is more and they should demand that, instead.

What usually happens is companies come in and negotiate with landowners, make promises and sign contracts and then have trouble making good on those promises because they underestimate the extra expenses that come from working in the tropics. Also, their are usually constant renegotiations with landowners who are not satisfied with the way the contractual promises are being carried out. Sometimes this is legit, but other times the landowners want more than what is reasonable. Then what often happens is the landowners put a halt to the work, costing the company thousands, if not millions of kina in lost production. Schedules get messed up, and suddenly the company is going bankrupt because they have ordered things but do not have enough ongoing production profits to pay for their equipment and initial investments.

The fact is, if PNG wants development, it isn't going to happen on their terms alone. It never happens this way. If they want to live in their pristine rainforest habitats and garden like they always have, they can do that. But if they want to mine their vast resources, guess what: Mining is expensive and makes a mess. There is no place on earth where mining has started that doesn't screw with the environment, so if you don't want a messed up environment, then don't mine. Stay as you are. Don't develop. Live like you always have. But if you want to develop, then there is always a price to pay. I'm not saying that companies should be able to just come in and screw over all of the landowners and rape the land. What I am saying is that there is going to have to be a compromise or the opposite will happen: the company will either go bankrupt or elsewhere and development will not happen.
All I hear is about how the landowners are getting an unfair deal, but I know from experience that many landowners are paid far more in PNG for projects then landowners elsewhere in the world are paid. Also, some landowners demand to have jobs or stock in the companies, too (even when they are unqualified). There are some landowners in PNG who have gotten an overly fair deal and some who have gotten screwed over -- so let's quit pretending that all of the poor landowners are poor, because many are quite wealthy.

The best thing that could happen to PNG is for the government to step down and allow an outside power (like Australia) to come in and run the place for a while. The first thing that would need to happen is for the whole country to be zoned and property laws rewritten for maximum benefit for both outside investors and landowners, as well as future development of infrastructure. Right now you have a wontok system that is so unfair that what the government has become is just a money-funneling system for those who are elected. The politicians can all fill their pockets (and the pockets of their wantoks) and funnel money to those who voted them in. National development (like a rail system, national highway system, better nation-wide services like medical, etc.) are neglected because if they are focused on, those who voted them in will remove them next election.

narapela man's commentary is profounding but it needs the bolds and nuts to fully substantiate the statements. as it covers, economics, social, development, politics and many other aspects.
there is always a price to pay for what we do - "reap what you sow". though the giant companies can rape the customary land and go due to beraucratic red tape and in collaboration with our political self gain corruption, the wages will follow when the stewards of the land cry as legitimately entrusted.

This is a sign of greed and the love of money. To take away powers from the very people who put you in there to protect them is a total mockery of our democracy. This amendments will allow our people to suffer while the fat puppets get richer...Lord save us!

Hi Anthony, your comments are valid. The main concern here, though, is that land registration or not, a new section has been added to the Environmental Act 2000, in effect sates regardless of your rights under any other law, any decision by the director of DEC to change or add to the conditions of an environmental permit (in relation to activities on your land) is final and no cause of action arises out of any act carried out in compliance with the instrument of authority issued by DEC. So simply, you can have title over your land whether customary or by registration, but that is not a right that you can exercise when it comes to any such "authorised" activity that becomes detrimental to your well being...and I agree, we are only making enemies amongst ourselves with these kind of outrageous decisions and laws...

I agree with Effrey. The issue at hand here is about a draconian law made by our 'representatives' to take away the right to be heard in respect of matters that concern our environment and livelihoods.

Although related, the issue here is NOT about land registration or what not. Effrey said it beautifully that it does not matter which law gives rise to your right to ownership of land. When it comes to the use of your land, you can shut up and bugger off na ol narapla man olgeta ken mekim nambaut lo busgraun na laif blo yu, as long as they can buy themselves some stupid permit that says its OK to do whatever they please regardless of the consequences.

These changes are made in light of specific projects as stated and it is made with the understanding that the DEC has the capacity to actually carry out the review on the proposed methods and technology to be utilised per project as well as possible impacts these proposed project will have on the environment and the people within the vicinity of the project area. But there is very little evidence that the DEC has such capacity and even when accurate scientific evidence is paid for and made available, it appears to be done solely as a formality when the permits have already been granted.
Such ammendments will only cause more problems in the long term. What about other projects that don't exactly fit the bill? Are they going to make more changes to the law for every single time something like this happens?

It is appropriate in some way to point out exploitation of a land for the sake of development has to involve some form of Environmental Damage. But I would suggest why not the Government make policies to prioritize attention on the lives of those people whom their land is being exploited? Usually after the so-called developers leave with their pockets filled up, there are no tangible developments left behind for environmental damage and majority of the people would most likely resort back to relying on the natural habitation for sustaining their basic livelihood, hopefully not much worse than before, but sure it will. Is this what we call DEVELOPMENT? I would take Lihir Gold Mine as a classic example, being just a small island, after being dug out with a big hole, what is there in place for the loss of huge mass of land being dumped at sea? Are Lihirians going to build floating houses on the sea when land runs scarce? And that is one of the reasons why people will always bite back at the government for its negligence on their part!

The government is also running out of ideas and is using its mandated power to crush its own people, needless to say, wrestling against them. It’s also acting DEFENSIVE and blunt, instead of being PROACTIVE in its capacity to portray true leadership and to address important issues forwarded by its people. To place absolute power in the Government to decide as to environmental permits…etc., is another blunt act of being REACTIVE to another agenda that should have involved further consultation and rigorous analysis.

We all know that in a modern-day organizational system, especially governance, nothing works right on the hand of one person; failure/abuse is always imminent. It needs a mechanism or due process for better checks and balances. Why can’t the Government see this, or is there some hidden agenda…that we don’t know of? Worst still, it is hardly comprehensible how and why pass this law to be universal when it’s applicable only to RAMU Nickel Mine? What a shame, even a man on the streets can figure out a flaw in such a blind move from those experienced leaders, who think we are still in the colonial era…They should be checking their calendar, THIS IS THE 21st CENTURY! After numerous minings, loggings, fishing, etc., that have played along in the past where are we now?....peace