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LNG landowners not part of mediation


PNG LNG project landowner representatives who relied on Section 18(1) of the Constitution to file Supreme Court references will not be part of an alternative dispute resolution process initiated by the Chief Justice Sir Salamo Injia and National Court judge Justice Ambang Kandakasi to deal with the LNG-related caseload.

The Registrar of the National Court has advised the reason is because there are no Supreme Court rules that give the trial judge the power to make orders as to mediation unlike the National Court rules which do.

In a statement released late last week, the LNG landowners did not agree with one part of the mediation process which excluded the issues raised in references filed under Section 18(1) of the Constitution.

This is because, at the mediation process before Judge Kandakasi last Wednesday, the judge mentioned that the Chief Justice had decided that all Supreme Court references filed under Section 18(1) of the Constitution challenging the validity of Section 6 of the Oil and Gas Act and other sections should not be included in the mediation process.

The result of this decision is to exclude from mediation the core issues involving the rights of land owners, which are:

1. Whether the State owns the resources under customary land.

2. Whether the government has the power to compulsorily acquire customary land for the benefit of oil and gas companies.

3.Whether the existing benefit sharing system is equitable.

4. Whether the production sharing contracts should be used for the exploitation of all resources in Papua New Guinea.

The landowners and the National Gas Corporation now support the use of Production Sharing Contracts. They say they will not be satisfied with anything less than that outcome.

If these issues are not included in mediation to be coordinated by Judge Kandakasi then they say that there are only two options open for consideration:

1. The suspension of all mediation until such time as the Supreme Court has dealt with the two Supreme Court references SCR No 5 and SCR No. 7 of 2010.

2. Postponement of the hearing of the Supreme Court References No. 5 and No. 7 of 2010 until the completion of the mediation process.

They say that their own preference is for all issues to be included in the mediation process.

There are more than 20 cases in the National Court dealing with landowner issues and issues raised by the National Gas Corporation, the mandated body that is to manage the project areas and the affected provincial and local level governments’ “participating interests”.

The issues outlined here are the key issues that will make or break the LNG project. They say that lessons must be learned from the Bougainville crisis.

Peter Donigi is a barrister with Warner Shand Lawyers in Port Moresby


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Arthur Williams

Paul - I pay one-third more per day for the runoff water that falls on my residence than I do for the water I consume from their piped water to my taps!

Arthur, Dwr Cymru user, Wales

Phil Fitzpatrick

You have to add into the mix the considerable talents of groups like the Huli to take and analyse European anthropological findings and twist them every which way to come up with reasons why certain individuals and groups are the "rightful" owners of particular pieces of real estate.

I have no doubt whatsoever that the Huli will eventually take over the world; they have an innate understanding of globalisation for instance. This will occur as the last anthropologist runs screaming off the nearest convenient cliff.

The muddle surrounding the LNG project and the land it wants is way beyond rational solution.

Paul Oates

From what is being reported about the Hides' landowner dispute and from Peter Donigi’s succinct précis of the matter, it seems inevitable a clash of cultures was always going to happen.

The key issue is ownership and who decides who owns what?

The so called ‘developed nations’ concept of ownership is based on the premise that ultimately, the government owns everything and can in fact assume control of any material possession within its national borders, given the appropriate circumstances and the passing of relevant legislation.

Even if there is private ownership of land, this is only limited to the surface and does not necessarily cover the possibility of there being minerals underneath the land.

The PNG concept of ownership is far more complex. It depends on traditional and historical ties which may never have been codified or written down. They are just assumed to have always been so, unless challenged.

To mount a suitable challenge to the ownership of any material possession, contesting parties can either resort to violence (i.e., clan warfare) or seemingly endless rounds of theatrical discussion and lively debate.

This is part of PNG’s broad canvas of traditional and colourful culture. People used to look forward to a good performance and often temporarily lost track of the original issues when someone makes a good showing.

From media reports, it would seem that the original agreement between the government and landowners has been further complicated by delays in the judicial review process. There is an old saying that ‘justice deferred is justice denied’.

Until and unless a common concept of ownership of material possessions is accepted and can be applied across PNG, it is inevitable that these problems will continue to occur.

After all, it took hundreds of years to legally sort ownership matters out elsewhere and even then, often it is never to everyone’s satisfaction.

For example, even though I own my land, I cannot do everything I want on it. Unless I can prove I planted the trees as a cash crop I may not be legally allowed to cut them down and use the timber.

Some have even come up with the absurd notion that farmers will in future have to be taxed on the rain that falls on their property.

How would that go down in PNG? Would traditional landowners be prepared to put their hands up and claim ownership of the rain? Yet water is set to become a contestable commodity along with food in the not too distant future.

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