The Mining law in Papua New Guinea is contained in the Mining Act 1992 which we say is not Constitution Section 53(5)(a), (c) and (d) compliant.
Section 5 of the Mining Act reads as follows:
5. MINERALS THE PROPERTY OF THE STATE.
(1) All minerals existing on, in or below the surface of any land in Papua New Guinea, including any minerals contained in any water lying on any land in Papua New Guinea, are the property of the State.
(2) Nothing in Subsection (1) shall be construed as an additional acquisition of property in relation to Section 53 of the Constitution beyond that which prevailed under the repealed Acts and all previous Acts.
The fiction created by the World Bank consultants to cast the veil that shroud the eyes and minds of Papua New Guinea policy makers and customary land rightsholders is Section 5(2) of this legislation.
This is done by a failure to recognise a simple principle of law.
This principle is that the validity of all ordinary Acts of Parliament are dependent on compliance with the Constitution.
The Consultants' arguments have been that they are only perpetuating existing laws and assumed that existing laws are constitutionally compliant. This means that they take their queue from pre-independence mining laws rather than the Constitution.
The pre-independence mining laws are Australian mining laws that were extended to or were applied to Papua New Guinea.
Australian laws are based on non-existence of the original Australians, and all land and resources belong to the State.
In Papua New Guinea less than 5% of land is owned by the State. Therein lies the dichotomy of interests – the fiction – the veil that shrouds Papua New Guinea.
Secondly, the Consultants failed to recognise the existence of Schedule 2.4.6(2) of the Constitution which reads:
(2) Subject to any Constitutional Law, all pre-Independence laws are, by virtue of this section, adopted as Acts of the Parliament, or subordinate legislative enactments under such Acts, as the case may be, and apply to the extent to which they applied, or purported to apply, immediately before the repeal referred to in Subsection (1)(a), or immediately before Independence Day, as the case may be.
It is clear that the pre-independence Mining Act is subject to the Constitution on Independence Day.
The vesting of minerals under customary land in the State under Section 5 is unconstitutional on independence day by virtue of Section 53(5)(a)(c) and (d) of the Constitution.
For a detailed discussion, you must then acquire a copy of the publication: “Lifting the veil that shrouds Papua New Guinea”. A copy of this publication can be ordered through the University of Papua New Guinea bookshop or by going to:Donigi Books List and make your enquiries using the form provided.
It is clear from the above that the government of Papua New Guinea since 16 September 1975 has and is in collusion with foreign consultants to deprive the customary land rightsholders their right to create wealth using their resources on, in and under their land and to vest that right to create wealth in foreign capital.