Papua New Guinea's forest are collectively owned by local people whose informed consent is essential before a logging project can be lawfully approved.
However, although customary land rights are Constitutionally recognised and are protected in all laws, including the Forestry Act 1991, there is considerable and well documented evidence that these rights are routinely violated and that the PNG Forest Authority is failing to ensure the free, prior, informed consent of community forest owners to logging operations on their land.
Over the past forty years there have been a number of official inquiries and numerous court cases that have revealed how customary land rights are seemingly being ignored in the allocation of logging and agricultures licences and leases.
Government reviews in 2001 and 2004 found that customary landowners were, in general, not giving informed consent to logging operations on their land. Research conducted since that time has also found repeated instances of logging operations taking place without informed consent from landowners.In particular, a government commissioned review in 2013 found 90% of Special Agricultural and Business Leases it examined, covering more than 5 million hectares of land, did not have genuine landowner consent.
In Papua New Guinea special protection is given to customary land that reflect its integral role in community life. It is estimated that 97% of land in Papua New Guinea is customarily owned. In practice, this means that land is owned communally by kinship groups that administer the real property though local tenure systems that grant user rights and benefits to its members.
A strong emphasis is placed both in local tenure systems and in the Constitution of Papua New Guinea on conserving customary land in a responsible manner for the benefit of future generations. The National Goals and Directive Principles, which are enumerated in the preamble of Papua New Guinea’s Constitution, state: ‘We declare our fourth goal to be for Papua New Guineas natural resources and environment to be conserved and used for the collective benefit of us all, and be replenished for the benefit of future generations
Accordingly, under Papua New Guinea law, customary land cannot be alienated directly to private interests and informed consent from local people is required for any changes in land use or the transfer of property rights. This can only occur following a thorough process of public consultation, which ensures all landowners provide substantive consent to the proposal and understand its implications for their rights going forward. These steps are required, the Supreme Court of Papua New Guinea has observed, ‘to ensure that customary landowners whose title is, after all, usually collective, rather than individual, are protected from the loss of their interest in the land whether it be a result of the actions of exploitative outsiders or fraudulent or self-interested co-owners’ [Lau v Maniwa [2016] PGSC 47; SC1528].
The PNG Supreme Court has also articulated the requirement for project proponents to obtain landowners’ “free and informed consent and approval and ultimately, their social license to operate.” The Court has made it clear that: foreign investors or developers who wish to enter any land in PNG and more so customary land [must] enter into meaningful discussions and negotiations with them [customary landowners] and get their free and informed consent or approval before entering, occupying, and using their land.’ [Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36].