SMLOLA & RTG WIN IN THE SUPREME COURT OF VICTORIA HAS A RECENT...

SMLOLA & RTG WIN IN THE SUPREME COURT OF VICTORIA
HAS A RECENT SUPREME COURT JUDGMENT & THE FOCUS ON RIO TINTO’S TREATMENT OF INDIGENOUS PEOPLES THROUGHOUT THE WORLD, CAUSED A DIFFERENT APPROACH TO THE PANGUNA ENVIRONMENTAL DAMAGES QUESTION?
17 JULY 2021
After 30 years of constant denial of any responsibility for the Legacy Issues by Bougainville Copper Limited (“BCL”) who owned the Panguna mine, and Rio Tinto who operated the mine and controlled BCL, it seems the winds of change may finally be blowing, if rumours from Bougainville are right. Are they trying to rush out a settlement before the real stakeholders have had a say to minimise their exposure and move on? The Human Rights Law Centre does not have our mandate, they are working with a small, and highly secretive group of Bougainvilleans – but we want to help find a solution that will be fair to all parties, one that is commensurate with the extent of damage and harm done by Rio and BCL. It is the members of the Special Mining Licence Osikaiyang Landowner Association (SMLOLA) who suffered the most, it was their lands which were totally destroyed and it was their communities which were forcibly removed. A recent Supreme Court in Victoria decision has found extensively against BCL. This included that BCL was responsible for the Panguna Legacy Issues. There are numerous references in the recently handed down Supreme Court Judgment where the Court holds BCL responsible for the Legacy Issues including; Paragraph 21, 238, 239, 247 and 248, acknowledging the BCL ‘legacy issues were real and burdomesome and a simmering source of resentment’.[1] BCL and Rio Tinto have always denied any responsibility for the Panguna Legacy Issues. This is the first time ever a Court has held BCL, which was a subsidiary of Rio Tinto at all relevant times, responsible for the Legacy Issues. This changes the fundamental legal position with respect to accountability. At the same time Rio Tinto is also under growing global corporate governance pressure to improve their relationships with indigenous peoples. This comes after the Chairman, the CEO, and the head of its most important business unit, all lost their jobs over Rio Tinto’s destruction of the Juukan Gorge Caves in Western Australia, a site of deep cultural significance to the local Aboriginal community - the traditional owners of the land upon which Rio mines. It seems that BCL is quickly trying to do some limited “social mapping” after not doing it 50 years ago and which was a source of conflict as their chosen “block representatives” did not fairly distribute the minimal BCL payments equitably to the community, but in many cases pocketed the money for themselves. Also, it now seems that BCL is also trying to do an environmental audit on the very damage it caused. Mr Philip Miriori said “If this rumour is true, that BCL intends auditing its own environmental damage, SMLOLA will oppose their involvement on principle. BCL caused the environmental damage and the assessment needs to be conducted completely independently of the wrongdoer.” Responding to rumours BCL is also trying to settle its liability for past environmental damage, the forced removal of families and the issues arising from the conflict, Mr Philip Miriori said, “I am not in the least surprised the rumours are that BCL is hurriedly trying to settle its obligations with an offer of compensation to the ABG. The Panguna Landowners have been proud to have been at the forefront of holding BCL & Rio Tinto accountable for 30 plus long years.” “The members of SMLOLA welcome the findings of the Supreme Court, and in particular that SMLOLA is the dominant or relevant Landowner Association and that it will be its members who determine whether access will be granted or denied over the land contained with the Special Mining Licence (and in which the mineral resources of Panguna are contained).” “It is ironic that the Supreme Court’s views on the BCL Legacy Issues arose out of litigation BCL itself initiated in Melbourne, Victoria and whilst being represented by Rio Tinto’s Melbourne based, 30 year long Bougainville legal team of barristers and solicitors.” BCL and its 4 associates have launched a barrage of litigation against SMLOLA and its members – no fewer than seven cases. Mr Miriori said, “BCL and its associates have lost every one of those seven cases, with costs being awarded against them in every case, and in two instances the superior courts of PNG found it was an abuse of Court process. None of these cases had any merit.” Philip MirioriSMLOLA Chairman
ABOUT THE SMLOLA (SPECIAL MINING LEASE OSIKAIYANG LANDOWNERS ASSOCIATION INC) The SMLOLA was established by the Autonomous Bougainville Government (“ABG”) on 7 September 2011 with its Constitution being drafted by the ABG Mining Department. The SMLOLA was established uniquely for and on behalf of all the Customary Landowners who own land contained within the area covered by the former Special Mining Lease at Panguna (which became the subject of the now expired EL 01), including the land used for the Panguna Gold Copper Mine Pit, industrial processing areas, Panguna Township, and the areas around the mine within the area contained in EL 01. The stated purposes of the SMLOLA pursuant to its Constitution are set out in detail in Clauses 1.2 (a) – (h), and include amongst other things, the duty to maximise the commercial benefits of their members in the Panguna Mine and promote peace, unity, and co-operation amongst landowners in a sustainable manner. The Customary Landowners and their families are members of the SMLOLA by right of birth within the 7 named villages, in accordance with the Naisoi Custom, and as set out in Clause 2.1.1(a) of the SMLOLA Constitution. The SMLOLA has more than 3,500 members. The governing body of the SMLOLA is democratically elected every three years as required by clause 4.3.3 of the Constitution, by the members so that its structure and Board is truly representative of the owners. The current Board was elected on 21 December 2018. Section 8 of the Bougainville Mining Act states that “all minerals existing on, in or below the surface of Customary Land in Bougainville are the property of the owners of the Customary Land”. This is exactly the same as Bougainville’s customary law on minerals ownership that has been in effect for millennia.
APPENDIX 1
VICTORIAN SUPREME COURT JUDGEMENT AGAINST BCL The primary judgment is 254 paragraphs spanning 100 pages but some key aspects in connection with the BCL Legacy Issues are summarised below:
1. The Judge said [at Paragraph 238], ‘the legacy issues for BCL, were real and burdensome and a simmering source of resentment’, by the Landowners.
2. ‘The refusal, based on the absence of a social licence, could not be said to be objectively incredible or surprising’ when referring to the refusal to extend the BCL EL [at Paragraph 248].
3. The Supreme Court noted that ‘the objective evidence is … that landowners had already refused to make any agreement to give BCL access to any land that was the subject of BCL’s two-year exploration licence’ [at Paragraph 239].
4. ‘What the respondents offered was a joint venture legal relationship that enabled the customary landowners to be part of the commercialisation of their own newly granted interest in the minerals under their land. It seems to me that with all the ‘heavy baggage’ of the legacy issues, this is what BCL was up against in obtaining what was termed the ‘social licence’ to redevelop the mine [at Paragraph 247].
5. ‘I trust it is not controversial or damaging to say (according to materials in this application) that BCL’s operations of the mine had major adverse environmental and social impacts on Bougainville, and brought with it serious grievances among Bougainvilleans about matters such as the limited share of mine revenue and inadequate, unfairly distributed, and unpaid compensation for damage done’[at Paragraph 21].

APPENDIX 2
THE SUPREME COURT ON SMLOLA
1. ‘The stated objectives and purposes of SMLOLA show that, in post-civil war Bougainville, the customary owners of the land in Panguna were attuned to the prospects of the redevelopment of the Panguna mine, the commercialisation of their mineral interests, and their participation in any redevelopment of the mine with a developer’ …. and… The formal SMLOLA Objectives include at Paragraph ‘(g) To be partners in development and operation of Panguna Mine ....’ in the words of the judgement at [45].
2. ‘Thus for customary landowners (as owners of the minerals under their land) to commercialise their interests, they would have to form commercial engagements with mining companies’ [27].
3. ‘It is clear that SMLOLA was a legitimate entity, active and providing something resembling the auspices or representative voice for its members’ commercial interests as customary landowners in the redevelopment of the Panguna mine in a joint venture with Central’ [47].
4. ‘The customary owners were given ownership of the minerals under the 2015 Mining Agreement. It appears to be sound and commercially and politically appealing … to satisfy all interests with a well resourced mining outfit and customary owners as joint venturers’ [238].
5. ‘For such [Joint Venture] activities, people would have to be employed and properly paid’ [241].
6. ‘What the respondents offered was a joint venture legal relationship that enabled the customary landowners to be part of the commercialisation of their own newly granted interest in the minerals under their land. It seems to me that with all the ‘heavy baggage’ of the legacy issues, this is what BCL was up against in obtaining what was termed the ‘social licence’ to redevelop the mine [247].
7. The Supreme Court of Victoria held that the members of the SMLOLA ‘are the relevant and dominant customary landowners and it will be their views and objections that count when it comes to any assessment of Landowner attitudes to the grant of any exploration or mining tenement over the former Special Mining Lease’[46]. [1] See attachment at back for some key quotes from the Victorian Judgement