STATE OWNERSHIP OF MINERALS CLAIM, SHATTERED BY BOUGANVILLEAN TEORI TAU.
Papua New Guineans need to know of Mr. Teori Tau, a Bougainvillean, and a landowner of the Panguna valley. He is famously known throughout the legal fraternity in Australia ,for claiming his rights to “just compensation” in the high Court of Australia in 1969, for the mining of minerals below the subsoil in the Panguna valley. Bougainville is today part of Papua New Guinea after independence in 1975, as it was part of Australia’s Territory of Papua and New Guinea before independence.
Prior to independence, the Territory government granted mining leases to Bougainville Copper Limited to mine copper and gold in the Panguna valley. The Mining Ordinance for the Territory of Papua and New Guinea proclaimed the ownership by the State of all minerals under any land in the Territory.
Teori Tau and his Panguna people were not to receive any benefit for the extraction of the minerals from their lands, as these were owned by the State according to the law and not by them. Teori Tau and his people felt dispossessed of their land by the act of a government that should be protecting their rights. He and his Panguna landowners inherited ownership of the land from their fathers and ancestors from the beginning of time. They felt that the law made by the State which took away their rights was against the law of God as passed down to them by their fore fathers which said; he who owns the land owns everything below it, upon it and above it. Those who respected and observed this law overtime lived in peace while those who decided to move the boundary stones with his neighbours lived without peace.
If Teori Tau and his people were to be dispossessed of their minerals by a law made by the Territory Government of Papua and New Guinea, then they should at least be paid just compensation, as required by the Constitution of the Commonwealth of Australia, was the advice they received from some lawyers who were sympathetic to their plight.
Teori Tau took his claim for just compensation to the High court of Australia. To his further amazement, the High Court dismissed his claim on the basis that the right of a Territory government of Australia to make laws for its Territory, is a right provided for in the same Constitution of Australia, and was not subject to the provision for just compensation to be paid for the compulsory acquisition of property.
Some twenty years later in 1989, it became obvious to the world that the Panguna valley landowners never accepted nor agreed with the ruling of the High Court of Australia, resulting in the declaration of war against the mine and the government of Papua New Guinea. Teori Tau’s fight was now taken up by a new generation of landowners from the Panguna valley, in the form of violence, led by another landowner named Francis Ona. In the civil war that lasted a decade, the Panguna copper mine, one of the largest in the world, was closed and more than twenty thousand Papua New Guinean lives were lost.
A further twenty years on, in 2009, the Teori Tau ruling was over turned by another High Court of Australia, following a separate claim for just compensation brought on by indigenous Australians in the Northern Territory, after the State’s compulsory acquisition of land owned by the indigenous Claimants.
Meanwhile Papua New Guinean Politicians have made no attempt to take any positive action towards restoring the ownership of minerals in the traditional landowners in the country or to ensuring that just compensation were paid to landowners when issuing mining leases for minerals extracted from their lands. The injustices that citizens like Teori Tau, Francis Ona and their Panguna valley landowners have been fighting against, continue to be issues with other landowners across the country today.
Prime Minister O’Neill’s recent stance that he will not be amending the current mineral ownership laws is a stance that is no longer supported by any foundation in law or in truth. The overturning of the Teori Tau 1969 decision ,which provided the foundation for the State’s ownership of minerals both in the past and today have now been shattered by the High Court’s latest ruling of Teori Tau in 2009.
The Australian States and Territories continued ownership of any minerals found within their States and Territories, in spite of the overturning of Teori Tau, stem from their ownership of all the underlying land in Australia; or Gods law; that he who owns the land owns everything below it, upon it and above it. In contrast, almost all the land in Papua New Guinea are owned by the traditional owners and it therefore follows that the only way left for the State’s continued ownership of minerals found on traditional lands is by compulsory acquisition of the mineral rights, which in turn is subject to payment of just compensation, as is also a requirement of the constitution of Papua New Guinea .
Prime Minister O’Neill’s stance is also in direct breach of international law made by the United Nations in its Declaration on the Rights of the Indigenous Peoples of the world, in 2007, whilstothers like the High Court of Australia take note of the Declaration, as shown by its overturning in 2009, of the 1969 Teori Tau ruling. A preamble of the 2007 UN declaration clearly states as follows;
Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development, in accordance with their own needs and interests.
Article 26 of the Declaration further states;
.Indigenous peoples have a right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
.Indigenous peoples have the right to own, use, develop and control the lands, territories and resources they possess by reason of traditional ownership or other occupation or use, as well as those they have otherwise acquired.
.States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
The legal ramifications of the latest decision of the High Court of Australia in relation to Teori Tau’s original claim is not yet clear. However, companies who want to continue to exploit minerals in Papua New Guinea should now take note that their companies may be held liable for extracting minerals from private lands without the payment of just compensation for those minerals as guaranteed by the constitution of Papua New Guinea, the Customary laws of all the peoples of this country and the United Nation’s declaration on the rights of the indigenous peoples of the World.
The time has now come for governments and companies to deal honestly and fairly with landowners of Papua New Guinea. Deception, trickery, lies, suppression, oppression and other forms of injustices to avoid the truth will all fail as education, technology and God undermine these evils, which promote nothing but GREED!.