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Landmark decision gives miners exclusive land rights in Papua New Guinea

Post Courier

A SENIOR lawyer has predicted that a recent landmark decision of the National Court giving Porgera Joint Venture Company exclusive rights of occupancy to its Special Mining Lease will affect thousands of landowners living in major resource development project areas throughout the country.

Placer Dome (PNG) Ltd, as then manager of PJV, filed an Originating Summons in February 2006 claiming a number of declarations and permanent injunctions to re-assert their rights of occupancy as the holder of the Porgera SML against the landowners of Wapini sub-clan.
Barrick (PNG) Ltd subsequently inherited the case when it bought out Porgera mine from Placer.

PJV began erecting a new permanent fence in 2005 to improve security and safety and to prevent illegal miners and other unauthorised persons from entering the mine area.
The company took the matter to court after the landowners disrupted the work by destroying parts of the fence and threatening to continue to do so.

The issue has been the subject of protracted court proceedings involving four or five separate cases, one of which is pending before the Supreme Court.
The recent case was argued before Mt Hagen resident judge David Allen by Robert Bradshaw of Bradshaw Lawyers of Port Moresby for PJV and Danny Gonol of Paulus M Dowa Lawyers of Mt Hagen for the landowners.

Mr Bradshaw argued that the company was entitled to exclusive occupancy to its SML for mining purposes and to carry on operations and works that were necessary or expedient for mining purposes.
Mr Gonol submitted on behalf of the landowners that the company was constructing the fence through their village and this would result in their displacement, as well as destruction to their homes, food gardens and economic trees.
He further told the court that the fencing would occupy the landowners� scarce arable land and raised safety and health issues as well.
Mr Gonol further asserted that PJV should address and resolve all issues concerning compensation and relocation of the landowners first before constructing the fence.

�The (landowners�) are free to pursue their claims concerning ownership and compensation in the other court proceedings,� Mr Bradshaw argued.
�Their rights in the other proceedings will not be extinguished by virtue of the (PJV) undertaking works in the SML area. The (landowners�) claims in the other court proceedings will have to be determined on their own merits,� he said.

Justice Allen handed down his decision on May 3. �I consider that the plaintiff (PJV) has made out a case for the grant of permanent injunctions,� he ruled.

Judge Allen granted the following orders:

  • PJV is entitled under the provisions of the Mining Act 1992 to exclusive occupancy of its SML for mining purposes and to carry on any operations or work that is necessary for mining purposes;
  • the area of land known as Kulapi is part of the land in the SML; and
  • the landowners or their agents are prohibited from preventing, attempting to prevent, intimidating, assaulting or interfering with PJV and its employees or agents from carrying out operations and undertaking fencing works on the land.

Commenting on the decision, Mr Gonol said that landowners were now effectively squatters.

�The decision is a precedent that will affect landowners throughout the country. There are more than 6 000 people living in the Porgera SML area with permanent buildings, food gardens etc but the court did not address the question of relocation.
�The effect of the decision can be likened to people squatting on State or customary land in towns and cities like Mt Hagen. The landowners in Porgera and elsewhere are now squatters on their own customary land�

Mr Gonol added  the decision had ramifications for the developers and landowners of Ok Tedi, Lihir , Tolukuma, Ramu Nickel, Kutubu, Hides and other mining and petroleum development projects:

�This is a landmark decision that gives the developer, whether it is PJV or any other, the right to do anything. The government must address this issue as a matter of priority because PJV can give the landowners marching orders at any time and there is nothing they can do about it�

Mr Gonol said Paulus M Dowa Lawyers had received instructions and they were contemplating lodging a Supreme Court appeal against the National Court decision.
�Other landowner groups in Porgera and other resource development projects are welcomed on onboard as joint appellants,� Mr Dowa said.


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