In April next year Papua New Guinea will appear before the Human Rights Council at the United Nations in Geneva to explain its human rights record.

ACT NOW! has made a submission to the UN that focuses on the PNG government's very poor record on land grabbing, illegal logging and experimental seabed mining.

The submission highlights the government's failure to fulfil its promise from the last UPR in 2011 'to increase its scrutiny over extractive and logging industries with a view to reducing their negative impact on the environment and, consequently, negative effects on the full enjoyment of human rights'.

I   Promotion and protection of Human Rights since the last review

1.   When Papua New Guinea last appeared before the Working Group during its eleventh session held in May 2011 the State affirmed[1] that PNG’s National Constitution accords to all persons living in PNG the basic rights and freedoms espoused by the Universal Declaration of Human Rights[2].

2.   PNG is also party to certain international treaties and conventions[3] and, according to the State it has in place the necessary laws and institutional mechanism to address human rights issues.[4]

3.   However, in the period since 2011 the PNG government has seriously failed to promote and protect the human rights of its citizens in the context of land grabbing, illegal logging and experimental seabed mining.

Land grabbing

4.   PNG has an agro-based economy with the agriculture sector sustaining the livelihoodof over 85% of the population[5].These people live in rural communities and depend on their land for substance agriculture, hunting and materials to provide shelter. Until recently over 95% of land was still in community hands[6] with customary land ownership recognized and protected by the Constitution and national laws.

5   However, between 2003 and 2011 rights to more than 5 million hectares of land were taken from indigenous customary landownersand given to national and foreign corporations using a scheme known as Special Purpose Agriculture and Business Leases[7]. Under these leases the corporations have been given exclusive rights to the land for up to 99 years.

6.   The more than 5 million hectares taken represents over 10% of PNG’s total landmass - which means the leases potentially impact more than 700,000 people.[8]

7.   Many of the leases are being used as a cover for clear-fell logging operations. This logging is ostensibly to prepare forest areas for agriculture planting although the areas being cleared far exceed what is necessary and many are in areas unsuitable for agriculture.

8.   In 2014, 30% of PNG’s 3.8 million cubic metres of round log exports came from SABL areas.[9]

9.   The SABL leases have been issued without the informed prior consent of customary landowners and without following the rules, processes and procedures under the Lands Act. This has been confirmed in the findings of a Commission of Inquiry[10], six court cases where individual groups have managed to successfully challenge an SABL over their land[11] and several independent investigative reports[12].

10.    The history and circumstances surrounding this huge land grab were laid out in February 2011 in a civil society submission to the United Nations High Commission for Human Rights Committee on the Elimination of Racial Discrimination under the Urgent Action / Early Warning Procedure to Prevent Irreparable Harm to Indigenous Peoples Rights.

11.   The submission, which is attached as an Annex 1, warned of the threat of irreparable harm to the rights of indigenous peoples, to the continued use, enjoyment and ownership of their lands and resources and to judicial remedies.

12.    As a result of the submission, on 11 March 2011 the Chairperson of the Committee wrote to the PNG Ambassador Permanent Representative of PNG to the United Nations, Mr Robert Aisi. The letter expressed the concern of the Committee that indigenous lands were under threat of alienation through the issuing of the SABL leases, the lack of consent from indigenous landowners and the lack of adequate information provided to landowners. In the letter the Committee urged the State to provide information to ensure that indigenous peoples land was not alienated and of the measures taken to ensure indigenous landowners have access to justice and an effective remedy. A copy of that letter is attached as Annex 2.

13.   As well as breaching the International Convention on the Elimination of Racial Discrimination and the UN Declaration on the Rights of Indigenous People[13]and International Covenant on Economic, Social, and Cultural Rights[14]the leases breach many of the fundamental human rights protected in the Universal Declaration.[15]

14.   The government response to the SABL land grab has been wholly inadequate.

15.    Although a Commission of Inquiry was established in July 2011, the Commission was underfunded, given inadequate time and was poorly supervised.[16] As a result there were lengthy delays, the timeframe of the Commission had to be twice extended and the Commission did not produce any final reports until June 2013. The two reports released covered only 42 of the 77 leases investigated.

16.    Despite its limitations, the Commission did find there were serious legal irregularities in almost all the leases investigated and it recommended most be revoked as they were unlawful. The Commission endorsed only 4 leases as genuine and requiring no further intervention - each involved small areas granted for genuine coffee plantations

17.   Among its many findings the Commission of Inquiry stated: 

”The Commission of Inquiry found widespread abuse, fraud, lack of coordination between agencies of government, failures and incompetence of government officials to ensure compliance, accountability and transparency within the SABL process from application stage to registration, processing, approval and granting of the SABL”[17]

“We found numerous examples of incompetence, failure, inaction and lack of commitment by officers of government agencies to properly and diligently carrying out their statutory functions. Legal requirements were deliberately breached and proper processes and procedures were either by-passed or simply ignored… agencies were reckless, careless and negligent”[18]

“With corrupt government officials from implementing agencies riding shotgun for them, opportunistic loggers masquerading as agro-forestry developers are prowling our countryside, scoping opportunities to take advantage of gullible landowners and desperate for cash clan leaders.”[19]

18.   The Commission of Inquiry Reports were given to government on June 26 2013, but to date none of the leases has been cancelled.

19.    This is despite repeated assurances from the Prime Minister the leases will be cancelled and land returned to its indigenous owners. For example, In September 2013, speaking in Parliament, the Prime Minister said[20]:

“Out of the 42 leases reported on, only in four leases were there bona fide landowner consent and a commercially viable agricultural project being undertaken”

“We will no longer watch on as foreign owned companies come in and con our landowners, chop down our forests and then take the proceeds offshore”

20.    In June 2014, announcing a Cabinet decision endorsing the Commission recommendation to revoke the leases, the Prime Minister said:[21]

“We are taking these steps to reclaim our customary land illegally lost to foreigners with the help of corrupt public servants and leaders”

“As a responsible government we want to ensure that all citizens have access to the lands of their ancestors. We will not allow our land to be lost to unscrupulous people out to con our people” 

21.   However, to date none of the leases have been cancelled, clear-fell logging is ongoing in many of the areas and no sanction has been taken against the public servants responsible for issuing the fraudulent leases.

22.    Instead, the government has made various erroneous claims to try and justify its inaction. In May 2015 the Secretary for Justice claimed the government was facing damages claims amounting to Kina 8 billion if it cancelled the leases[22] and in August 2015 the Minister for Lands said legislation was necessary to cancel the leases and his Department was drafting a new law.[23]

23.   Neither of these claims is true. If the leases were fraudulently issued there can be no civil liability to the companies who have benefited; the proceeds from logging far outweigh any costs incurred by the lease holders; it is the governments responsibility to put the rights and interests of its citizens first and the leases can be administratively cancelled without the need for new laws.

24.   It is now over five years since the original civil society submission to the Committee on the Elimination of Racial Discrimination. It is over five years since the letter from the Committee to the PNG government asking for answers. It is over two years since a damning Commission of Inquiry reported to the government. But still no leases have been cancelled; no logging operations stopped and nothing done to stop the serious violation of indigenous and human rights.

25.   This failure by the government to protect the rights of customary landowners breaches a number of further fundamental rights in the Universal Declaration.[24]

Illegal logging

26.   Foreign, mainly Malaysian, logging companies harvest and export over 3 million cubic metres of raw logs from PNG forests every year. The government licenses most of the logging operations but they are widely regarded as illegal[25], as summarized in a 2014 report from Chatham House[26]:

“Illegal practices are widespread, and the weight of available information (including independent reviews commissioned by the government, and the views of private sector experts surveyed by Chatham House) suggests that the majority of timber production in PNG is illegal in some way”.

“The types of illegality recorded include: licences being issued or extended in breach of regulations (especially those relating to consultation with indigenous landowners); extensive breaches of harvesting regulations by concessionaires; and, most recently, the abuse of licences for clear-felling forest for commercial agricultural plantations”.

27.   The illegal nature of the logging, its environmental impacts and the lack of sustainability have been recorded in numerous reports dating back over the last fifteen years.[27]

28.   The logging breaches fundamental human rights of customary landowners protected in the Universal Declaration.[28]

29.   Although the government is fully aware of the illegal nature of the logging no action has been taken to protect the rights of customary landowners. This itself breaches a number of further fundamental human rights.[29]

Experimental seabed mining

30.   Countries across the Pacific region have issued hundreds of seabed exploration licences to mining companies[30] and in PNG the government has issued the world's first experimental seabed mining lease to Canadian company, Nautilus Minerals.[31]  

31.   Nautilus intends to mine copper and gold from high-grade massive sulphide deposits[32] on the sea floor at a depth of 1600 metres. The lease covers an area of 59 km2 known as Solwara 1, 30 km off the coast of New Ireland and 50km north of Rabaul.

32.   The mining process will involve remote controlled vehicles strip mining the sea floor, collecting the disturbed material and sending it as slurry via a pipeline to the surface where the water and rock is separated from the ore and sent back to the sea floor via a second pipeline. The ore will then be transferred from the mining support vessel onto a barge and taken for processing.

33.   Experimental seabed mining and the Solwara 1 project are being carried into effect without the informed consent of local people and in defiance of the internationally recognized precautionary principle[33]. It will also directly impact on the cultural life and traditional practices of the people of the adjacent New Ireland and East New Britain Provinces. This is in direct contravention of their human rights.

34.   Experimental seabed mining also raises serious environmental concerns.[34] In New Zealand, concern over the environmental impacts of seabed mining have led to two mining applications being rejected by the Environmental Protection Agency[35] which has said:

“The DMC [Decision Making Committee] found that the destructive effects of the extraction process, coupled with the potentially significant impact of the deposition of sediment on areas adjacent to the mining blocks and on the wider marine ecosystem, could not be mitigated by any set of conditions or adaptive management regime that might be reasonably imposed”[36]

35.  Terrestrial mines in PNG have had serious environmental, social and other human rights impacts and the PNG government and its institutions have proven themselves incapable of properly managing such large-scale operations and protecting the rights of their citizens.[37]

II   Implementation of accepted recommendations since the last review – no National Human Rights Institution

36   The proposal for a National Human Rights Institution in PNG has a long history. PNG’s cabinet, the National Executive Committee, first endorsed the idea in 1997 and again in 2007 and a draft bill was prepared in 2008.[38]

37   In 2011 Papua New Guinea informed the Working Group on the Universal Periodic Review that a National Human Rights Institution for PNG was imminent. It explained that draft legislation had been proposed and was currently under review, and although there had been some delays there was a commitment to establish this “overdue and vital body”. [39]

38   PNG said a Government Taskforce was scheduled to submit a Policy Submission for endorsement and once endorsed, the Human Rights Commission would be in operation by 2012.[40]

39   PNG also supported recommendations from Samoa, Thailand, Canada, Morocco, Costa Rica, Maldives, Poland, Argentina, Norway, South Africa, France, and New Zealand that it establish an independent national human rights commission.[41]

40    Since 2011 PNG has failed to take any or any material steps to establish the promised National Human Rights Institution.

III   National Consultations for this UPR

41.   ACT NOW! has not been able to engage directly with the PNG Government  on any of the issues raised in this submission in the lead up to the Universal Periodic Review as the government has failed to engage in any open or transparent national consultation process in the preparation of its National Report.

42.   ACT NOW! wrote to the Chief Secretary to the Government [attached as Annex 3] and the Secretary to the Department of Foreign Affairs and Trade [attached as Annex 4] on 1 April 2015 declaring its interest to participate in the National Consultations and raising the issues in this submission. Copies of these letters were also sent to the PNG Ambassador Permanent Resident to the United Nations, Robert Aisi [attached Annex 5]. None of the letters received a reply.

43.   The only response was from United Nations Office of the High Commission for Human Rights in Port Moresby who advised the contact details of the person, Farapo Korere, in the Department of Foreign Affairs leading the drafting of the National Report.

44.   When contacted, Ms Korere advised the government was preparing its own report and civil society groups should do likewise[42]. When asked to confirm whether there would be any national consultation meeting Ms Korere did not respond.

IV   Recommendations

45.   The PNG government is urged to:

1. Cancel the SABL leases and return the land to customary landowners
2. Cancel all Forest Clearance Authorities allowing logging in SABL areas
3. Instigate disciplinary action against all officers identified in the Commission of Inquiry as having failed to protect the interests of customary landowners and uphold the law
4. Place a moratorium on the renewal of all annual logging plans until an independent audit is completed to determine if customary landowners have given their informed consent and logging is sustainable
5. Place a moratorium on any seabed mining until coastal communities have been fully consulted and given their informed consentand the potential environmental impacts are fully understood and proper plans are in place to manage their impacts
6. Ensure a National Human Rights Institution is in place by the end of 2016

[1]United Nations General Assembly Report of the Working Group on the Universal Periodic Review: Papua New Guinea. 11 July 2011. At page 4

[2]Part III, Division 3 of the National Constitution, includes the following: right to freedom (Section 32); right to life (Section 35); freedom from inhuman treatment (Section 36); protection of the law (Section 37); liberty of the person (Section 42 ); freedom from forced labor (Section 43); freedom from arbitrary search and entry (Section 44); freedom from conscience, thought and religion (Section 45); freedom of expression (Section 46); freedom of assembly and association (Section 47); freedom of employment (Section 48); right to privacy (Section 49); right to vote and stand for public office (Section 50); right to freedom of information (Section 51); right to freedom of movement (Section 52); and protection from unjust deprivation of property (Section 53) – see the United Nations General Assembly National Report: Papua New Guinea. 9 May 2011, at page 4.

[3]These include the International Convention on the Elimination of Racial Discrimination (27 January 1982); Convention on the Rights of the Child (2 March 1993); Convention on the Elimination of All Forms of Discrimination Against Women  (12 January 1995); International Covenant on Civil and Political Rights (21 July 2008); and International Covenant on Economic Social and Cultural Rights (21 July 2008) - United Nations General Assembly National Report: Papua New Guinea. 9 May 2011, at page 5

[4]ibid.

[5]United Nations General Assembly National Report: Papua New Guinea. 9 May 2011, at page 3.

[6]The Political Construction of a Land Grab in Papua New Guinea. Colin Filer. Australian National University. September2011. https://crawford.anu.edu.au/rmap/pdf/Rpapers/2011/READ_PDP1_CF.pdf

[7]ibid.

[8]This is inferred from a total population of 7.5 million people of whom 85% live in rural communities and the land grab affecting more than 10% of the total land area

[9]https://pngexposed.wordpress.com/2015/06/29/log-exports-reach-new-peak-d...

[10]http://www.coi.gov.pg/sabl.html

[11]For a summary of the six cases see - http://www.actnowpng.org/blog/court-rulings-confirm-null-and-void

[12]“The people and forests of Papua New Guinea under threat: the government’s failed response to the largest land grab in modern history* Global Witness, 2014.

“On Our Land Modern land grabs Reversing independence in Papua New Guinea” Oakland Institute, 2013.

 “Up for Grabs. Millions of hectares of customary landing PNG stolen for logging” Greenpeace, 2012.

“Banking on shaky ground. Australia’s big four banks and land grabs” Oxfam, 2014.

[13]The UN Declaration on the rights of indigenous people (2007), includes, inter alia, the rights for indigenous people to: Effective mechanisms for the prevention and redress of any action that dispossesses them of their land or resources; Freedom from forcible removal from their land; Participate in decision making in matters that affect their rights; Free, prior and informed consent for any administrative measures that may affect them; Security in the enjoyment of their own means of subsistence and development; Just and fair redress for depravation of their means of subsidence and development; Maintain and strengthen their spiritual relationship with traditional lands, waters and coastal seas; The land, territories and resources they have traditionally owned, occupied or used; Redress where lands and resources are taken, used or damaged without free, prior and informed consent; Conservation and protection of the environment; Maintain, control, protect and develop their cultural heritage; Access to and prompt decisions through just and fair procedures and effective remedies for all infringements of their rights

[14]PNG is a Party to the International Covenant on Economic, Social, and Cultural Rights (ICESCR) (1966) that includes these rights: In no case may a people be deprived of their own means of subsistence; The right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing; The right to take part in cultural life

[15]These include: Article 3: The rights to life, liberty and security of person – as people have been denied access to their land and their means of subsistence. Article 9: Freedom from arbitrary arrest, detention or exile – aspeople havebeen exiled from their own land; Article 12: Freedom from arbitrary interference with privacy, family, home – as people and their families have been excluded from land which has been their home for generations; Article 17: No arbitrary deprivation of property – as people have not consented to and in many cases have no knowledge of the loss of their land; Article 25: The right to a standard of living adequate for health and well-being, including food and housing

[16]http://www.coi.gov.pg/sabl.html

[17]Commission of Inquiry into the Special Agricultureand Business Lease (SABL) Final Report. John Numapo, June 2013, at page 235.

[18]Ibid at page 236

[19]Ibid at page 242

[20]PNG government report reveals land lease corruption. PNG Industry News. September 20, 2013 - http://www.pngindustrynews.net/storyview.asp?storyID=801574183&section=G...   

[21]http://www.officeofprimeminister.com/#!june-2014/c1j7

[22]http://www.actnowpng.org/blog/lawrence-kalinoes-astonishing-defence-unlawful-sabl-land-grab-rewrites-history-and-ignores-law

[23]https://pngexposed.wordpress.com/2015/08/17/more-government-lies-delays-...

[24]These include: Article 7: Equality before the law and equal protection of the law; Article 8: An effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law; Article 12: Protection of the law against arbitrary interference with privacy, family and home.

[25]In July 2006 the British Commissioner to PNG, David Gordon-MacLeod, noted “There is substantial evidence from independent sources that current levels of logging (in PNG) are unsustainable, the legality of many current concessions is in doubt, corruption is a growing problem in the sector… and there are human rights abuses of forest communities and local labour”.

[26]Illegal Logging in Papua New Guinea. Sam Lawson. Chatham House, April 2014 at page 2

[27]PNG Government review of current logging operations, 2004 - http://pngforests.com/forestry-review/current-logging-projects/
PNG Government review of disputed permits and extensions, 2004 - http://pngforests.com/forestry-review/disputed-permits-and-extensions/
ITTO Diagnostic Mission Report, 2007 - http://pngforests.com/itto-2/
Overseas Development Institute, 2007 - http://pngforests.com/odi/
Forest Trends, 2009 - http://pngforests.com/forest-trends-2/
Transparency International, 2009 - http://pngforests.com/ti-png/
Greenpeace, 2004, 2010, 2012 - http://pngforests.com/greenpeace/

[28] These include: Article 3: The rights to life, liberty and security of person – as people are denied access to their land and their means of subsistence; Article 9: Freedom from arbitrary arrest, detention or exile – as people are excluded from areas where logging takes place;

Article 12: No arbitrary interference with privacy, family, home – as people and their families are excluded from land which also suffers severe environmental degradation; Article 17: No arbitrary depravation of property – as people have not consented to the loss of their forest; Article 25: The right to a standard of living adequate for the health and well-being of himself and of his family, including food and housing

[29]These include: Article 7: Equality before the law and equal protection of the law; Article 8: An effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law; Article 12: Protection of the law against arbitrary interference with privacy, family and home.

[30]https://ramumine.wordpress.com/2015/07/31/pacific-civil-society-wants-se...

[31]http://pacific.scoop.co.nz/2011/01/png-grants-first-deep-sea-mining-leas...

[32]Sea floor massive sulphide deposits occur around sub-sea volcanoes (called sea floor hydrothermal vents). The mine will bulldoze active mineralized chimney habitats and their associated colonies of hydrothermal vent fauna.

[33]According to a report by the United States office of the Environmental Law Alliance World Wide, the precautionary principle is cited in the Rio Declaration and there is a clear obligation on all States to widely apply the principle. This includes the need for an open, informed and democratic process involving all potentially affected parties and this is something that has just not happened with the introduction of experimental seabed mining. ELAW says: "The significant risks and uncertainties surrounding deep seabed mining implicate strict application of the precautionary principle. Little is known about seafloor mining technology, its efficacy, safety, andthe impacts that may arise from the process. In addition, the deep sea environment is a unique and diverse realm that has not beenextensively researched and is not well understood. Both of these uncertainties warrant unprecedented caution and attention before proceeding with full-scale development of deep seabed mining". http://www.actnowpng.org/sites/default/files/ELAW_dsm_opinion_0.pdf

[34]These include [1] Habitat destruction from the excavation of the ore and the plumes of mud it will create causing loss of habitat, loss ofendemic or rare species, reduced species diversity, loss of knowledge and future opportunities. The hydrothermal vents that will be mined are one of the rarest and most unique ecosystems known to science and are only just beginning to be explored and understood. Each vent site and its ecosystem is unique.[2[ Impacts of light and especially noise from undersea vehicles and mining on deep sea dwelling creatures, whales, dolphins, etc [3] Disposal on the sea floor of 'subeconomic rock and sediment' (estimated at 250,000 tonnes) [4[ Disposal of waste from surface vessels [5[ The integrity of pipelines and possible leakage [6] Toxic wastes from the processing [7] Cumulative impacts of mining many sites over a relatively short period of time [8[ Pollution from surface ships and the risks of collision or spillage

[35]http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11400171

[36]Ibid

[37]See for example: 1. Human Rights Watch report ‘Gold's Costly Dividend: Human Rights Impacts of Papua New Guinea's Porgera Gold Mine’ at https://www.hrw.org/news/2011/02/01/papua-new-guinea-serious-abuses-barr...

2. ‘Papua New Guinea leads the world in mine pollution of waterways’ at https://ramumine.wordpress.com/2012/11/06/papua-new-guinea-leads-the-wor...

3. The Ok Tedi environmental disaster - https://en.wikipedia.org/wiki/Ok_Tedi_environmental_disaster

4. Bougainville and the Panguna mine - http://www.actnowpng.org/project/Bougainville%20(Panguna)%20mine

[38]United Nations General Assembly, Summary prepared by the Office of the High Commissioner for Human Rights: Papua New Guinea. 28 January 2011, at page 2

[39]United Nations General Assembly Report of the Working Group on the Universal Periodic Review: Papua New Guinea. 11 July 2011, at page 9

[40]United Nations General Assembly National Report: Papua New Guinea. 9 May 2011, at page 14

[41]United Nations General Assembly Report of the Working Group on the Universal Periodic Review: Papua New Guinea. 11 July 2011, at page 13

[42]From: Farapo Korere <farapokorere56@gmail.com>