Archive for the 'Land and land reform' Category

State against a nation of landowners

Published on August 25, 2009 in Land and land reform and Mining. 5 Comments

“STATE OWNERSHIP OF MINERALS IS VITAL to the development of PNG as  a nation. State control of resources allows them to be developed for the benefits of all citizens as required by the Constitution”.  Bear in mind here that this is an argument that is coming from no one other than the President of the Papua New Guinea Chamber of Mines and Petroleum, Mr Greg Anderson (Post Courier 25th of August 2009).

Mr Anderson is concerned about proposed ammendments to the Mining Act which will divest the state of its ownership over mining and petroleum resources and transfer it to private ownership. It is not clear from the Post Courier article which category of people  who shall be entitled to ”private ownership” of resources but my hunch is that it would be landowners. If this assumption is in fact correct then, Mr Anderson is gravely concerned that

“the arguments presented for private ownership of resources were grossly misleading and simplistic and will stop any future resource development in PNG….The simple fact is that if a chance is made to mineral ownership, exploration will die, and there will be no new resource developments as the risk profile will be unacceptable to any potential developer. There will be a complete breakdown in the well established, internationally recognised system that underpins resource development in PNG. There will be no benefits for anyone.

The simple fact is that if a change is made to mineral ownership, exploration will die and there will be no new resource developments as the risk profile will be unacceptable to any potential developer. There will be a complete breakdown in the well established, internationally recognised system that underpins resource development in PNG. There will be no benefits for anyone. State ownerhip of minerals is vital to the development of PNG as a nation. State control of resources allows them to be developed for the benefit of all citizens as required by the Constitution. The resources are managed in an effective and orderly manner that is recognised internationally and accepted by the investor. Private ownership of minerals means that a few lucky individuals could expect to become rich at the expense of the rest. Papua New Guinea cannot develop as a nation under these conditions; it would splinter into groups driven by self-interest.

Again it is critical that the Post Courier should have specified who represents the class of private owners. But for the sake of argument, if these were landowners, then the argument Mr Anderson advocates is already in the interest of some private interest. In this regard the State should maintain its hold over such resources so that it could facilitate the exploitation and we know enough from Karl Marx about how the State institutions and bureaucrats serve in that regard.

If it were the landowners, why should we slavishly abide to a common law principle (the State ownership of resources) that doesnt comply with how Melanesians think and relate to land and questions of ownership? What are the philosophical assumptions that should now inform such an ammendment?

Mr Anderson makes a valid argument about the guarantee that a State should provide in such a scale of resource extraction. He also associates the State with orderliness, regulation redistribution of wealth and benefits. Is it not time enough to try out out alternative legislative frameworks that could achieve similar or better results than our present paradigm of State ownership. This is not the first time that this question has been debate. Two prominent Papua New Guinean legal thinkers, Bernard Narokobi and Peter Donigi, have wrestled with these questions in two separate books. It seems the question about State ownership versus a nation of landowners will never be resolved, and if paradigms are meant to be superceded then we live in an epochal moment where the possibility of initiating such a resolve begins with question of landownership in Melanesia

He said an exploration tenement gave the holder the right to explore for minerals or oil and gas which is an expensive and high risk activity.
The explorer’s only security is the tenement and the guarantee provided by the State that the explorer will have the right to develop any discoveries made on the tenement in accordance with requirements and obligations set by the State, Mr Anderson said.
“If any potential explorer believes that the State will not, or cannot, provide this guarantee with an acceptable risk profile then the explorer will not invest exploration dollars.”

Graon toktok na kastom

Published on August 20, 2008 in Land and land reform. 0 Comments

ISSUES RELATING TO LAND USE AND MANAGEMENT WILL never cease to employ the preoccupations of policy makers and legislators, academics and the numerous batallion of landowners scattered in and around the many countries of the Pacific where primodial links to land, spirits and ancestors continue to be guarded with a particular zeal.

Vanuatu’s Daily Post carries a story about a recent meeting amongst Vanuatu Chiefs at the Nakamal. The agenda that dominated the meeting centred around the challenging task of codifying kastom law relating to land. Two persistent and vexing questions were discussed at the meeting: (1) a sensitivity to historical contingency demands that we must seek to find appropriate responses to the incessant changes wrought by changing social, political and economic circumstances; (2) the nerving question of definition: how does one and who gets to define what is kastom? While acknowledging the strides they have taken to deal with issues of kastom value and land, reticence was expressed by the Vaturusi Council of Chiefs over the project of codifying kastom law relating to land.

“…there are those who caution us not to rush into writing custom because first of all, we all must agree on what custom is most suitable for us to record. The question therefore remains – are we ready yet?”

In Papua New Guinea, a former parliamentarian, observed that the procedure and process of alienating land from their ‘customary or traditional owners’ carry the enduring imprint of colonial legacies. Ben Micah, former MP for Kavieng, made the following observations during the Waigani Seminar hosted at the University of PNG.

“Taking land from customary landowners through trickery, bribery and divide and rule tactics for administration and business purposes without proper compensation by both German New Guinea and Britsh Papua is a legacy that continues today”.

Recently I took part as a discussant on a panel in the European Society for Oceanists (ESfO) Conference held at the University of Verona in Italy. This panel was organised by Tony Crook (University of St Andrews) and Sue Farran (University of Dundee) and focused on the issue of land reform in the Pacific. The papers came from anthropologists and lawyers working in Melanesia (PNG, Solomon Islands New Caledonia), Micronesia (Palau) and Polynesia (Samoa). Among other things that came out of these papers is a struggle Pacific Island countries have to  face as they seek to disentangle themselves from the shackles of colonial legacies that still retain their hold in the array of legislative provisions relating to land and customary law.

Customary law tends to be defined mainly in contrast to or in comparison with British common law. In the abstract it seems as though common law has become what natural law is to physics. That is physics tries to model and interpret itself according to its particular understanding of natural law and processes. By analogy, it seems that common law has provided a kind of “natural law” model to customary law so that customary law is defining itself only in response to or in some relation of similarity or difference to common law.

One evidence for this observation comes from the fact that most of the lexicons and specialised jargons used in talking about customary law is often borrowed from and is dependent on common law principles. In uninentionally receiving its languages from the dominant common law, customary law is slowly becoming like common law much like physics is modelling itself after natural law.

Maybe if customary law is to develop with a sense of its own jurisprudential integrity, it might be worthwhile to consider the power that analogy and comparison have played in maintaining its relation to common law. Maybe advocates of customary law might want to pursue a very fundamental question originally posed by the anthropologist, James Weiner, in his critique of anthropology: what is the law of obeying law? as opposed to how it is similar or different to common law? This is perhaps another way of recasting the conceptual conundrum expressed by the Vaturusi Council of Chiefs: what is kastom and how does kastom become what it is?