Bougainville’s new Mining Law does not live up to its hype as a world first.*
Despite the rhetoric from President Momis and the celebratory headlines of a compliant press, led by the Australian ABC, the new law fails to deliver on the promised rights for customary landowners.
Sure, local people can veto exploration on their land, but who doesn’t want to know what might be under their feet?
Unfortunately once the exploration starts that is the end of any meaningful rights for the landowners and it is the Bougainville government that then holds all the cards.
This is a poorly drafted piece of legislation, the people of Bougainville deserve better.
Annotated key sections
12. CUSTOMARY RIGHTS OVER MINERALS OF OWNERS OF CUSTOMARY LAND The customary rights over minerals of the owners of customary land include, but are not limited to, the following rights: (a) to be consulted about the grant of an exploration licence over the land and to withhold consent to any such grant; (b) in the case of a mining lease, a lease for mining purposes or a mining easement over the land: (i) to be consulted at a Bougainville Mineral Resources Forum; and (ii) to participate in a mediation in accordance with section 25; (c) to be consulted about the grant of a small-scale extraction lease over the land and to withhold consent to any such grant; (d) to share in any revenue generated by mining development on the land; (e) to participate in opportunities arising from mining development on the land; (f) to receive compensation for the impact of mining development on the land, being compensation which reflects the nature and extent of such impact.
Under 12(a) landowners can withhold consent for exploration licenses, but that’s it. Once the exploration license is granted, the ABG hold all the cards. At this very preliminary stage landowners would have few indications as to the size of the deposit, their share of the revenue, benefits to be given, waste disposal methods – so the only enforceable moment where they can refuse mining is made when very few facts are to hand. Once consent to exploration is given, the ABG can from then-on override landowners.
The landowners may have some rights to revenues, but the ABG has complete authority to determine what those are. So really this should more accurately be called the transfer of power from PNG to ABG Act. All customary rights are expressed in such vague language, as to be virtually unenforceable.
And then there is this:
14. RESOLVING DISPUTES BY CONSENSUS. Subject to this Act, disputes about minerals involving the owners of customary land are to be resolved, so far as practicable, by consensus.
Come on, this is just waffle, or fluff if you like; notional rights (dressed up in a quasi-Melanesian idiom), with absolutely no teeth
But now we get to where the Act becomes much clearer – the teeth appear and the ABG are given them all.
15. EXCLUSIVE POWER OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT TO GRANT TENEMENTS (1) The Autonomous Bougainville Government has exclusive power to grant tenements under this Act because of the multiplicity of landholders’ interests mentioned in subsection (2) that are, or are likely to be, affected directly or indirectly by the grant of a tenement.
16. EXCLUSIVE POWER OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT TO DISTRIBUTE MINING REVENUES The Autonomous Bougainville Government has exclusive power to determine the amount, and the allocation, of revenue from the development of minerals.
18. CUSTOMARY RIGHTS DO NOT AFFECT EXCLUSIVE POWERS OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT To avoid doubt, customary rights do not in any way affect the exclusive powers of the Autonomous Bougainville Government under sections 15 and 16.
But this is not all – it gets worse, The ABG is given the right to recognize landowner representative organizations – the ABG become kingmakers, regardless of local views. Leaders against mining will be sidelined as unrepresentative, and those in the ABG’s pocket will be recognized!
20. APPROVAL OF LANDOWNER ORGANISATIONS. (1) Subject to subsection (2), the Bougainville Executive Council may from time to time approve one or more organisations to represent all or some of the owners: (a) of customary land that is the subject of an application for a mining lease; or (b) of customary land that the Council is satisfied is likely to be the subject of an application for a mining lease.
And what happens if those made king by the ABG fail to consent to the mine, they can still be overridden:
26. OVERRIDING POWERS OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT. (1) This section applies to an application for the grant of a mining lease if: (a) a mediation in respect of the application has been conducted under section 25; and (b) the consent to the grant of the application has not be given by: (i) the approved landowner organisation, or one or more of the approved landowner organisations, representing the owners of the customary land in respect of which the application has been made; or (ii) any owners of that customary land not represented by an approved landowner organisation; or (iii) any other landholders of the land in respect of which the application has been made; and (c) no other issues relating to the application remain in dispute. (2) The Autonomous Bougainville Government is by force of this section empowered to override the requirement for the consents referred to in subparagraphs (1)(b)(i),(ii) and (iii).
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