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Policies laws and regulations

Cancun Safeguard A

Relevant PLRs to be used to ensure the implementation of this Safeguard

The legal framework in PNG sets out clear objectives for its forest programmes under the National Forest Policy,[2] the National Forestry Development Guidelines and the Forestry and Climate Change Framework for Action [3], and key National Policies such as the MTDP III[4] which set out specific indicators and targets (also known as KRA[5]’s) relating to the development of PNG’s forests. These targets are also captured within an NRS which further expounds upon and reinforces these broad objectives. The National Constitution sets the overall basis for these forest programmes.[6]

 

PNG is Party to twelve (12) relevant international conventions and agreements.[7] The Constitution does ‘bind’ PNG to the specific instrument once it is ratified. This denotes a commitment on PNG’s part to ensure compliance with its terms and provisions.

Cancun Safeguard B

Relevant PLRs to be used to ensure the implementation of this Safeguard

With regards to access to information

The Right to Freedom of Information is a qualified right under the National Constitution of PNG.[8] The National Constitution[9] interprets ‘Information’ as ‘official documents.’ The Constitution[10] establishes procedures by which citizens may obtain access to official information. Forestry legislation requires a Public register to be kept of all important documents and decisions concerning forest management.[11] It also specifies the kinds of information recorded[12] and also sets out the processes/procedures necessary for accessing this information.[13]

 

With regards to Accountability

All Government agencies are subject to Financial and Accounting/ Auditing processes enforced through institutions designated for this purpose.[14] These institutions have been given their mandate by either an Act of Parliament or the Constitution of PNG.[15]

 

With regards to Access to Justice

The Constitution of PNG recognizes the Right to the Protection of the Law for all citizens ‘directly affected’.[16] This legal framework also provides for dispute resolution mechanisms at all levels of government[17] (especially in relation to customary land or natural resources). They are also not cost prohibitive. Public Law offices are established to assist citizens incapable of accessing legal services and other support. A process of appeal[18] is also provided as part of the traditional legal system[19] and is prescribed within individual sector specific Acts. Remedies for breaches of rights are also afforded under both Acts and subordinate laws but they are not clearly prescribed. There are also specific courts and ADR mechanisms provided to enforce the rights of access to justice for all customary landowners/local communities vulnerable to unfair/ unjust business practices.

 

With regards to rights over Forest Land

The Constitution, Land and forestry legislation guarantee clear land tenure rights to customary landowners and recognizes the extent of these rights in relation to forest resources.[20] It also provides the basis for just compensation to be awarded in the event of development and acquisition of land/resources from them[21] and applies to both statutory and customary ownership, use rights. Land titling procedures are also established via respective legislation and involve the formation of land holding groups to govern them. Gender equality is recognized and guaranteed as part of these groups and relates to decision making processes over forest/land tenure arrangements and benefits.

Cancun Safeguard C

Relevant PLRs to be used to ensure the implementation of this Safeguard

The National Constitution of PNG provides a standard criteria for defining who are ‘indigenous people’ in PNG which is consistent with international law. However, the term ‘indigenous people’ is not used in the Constitution or in relevant PLRs. This is replaced with the term ‘customary landowners.’ These definitions are elaborated further in Acts of Parliament which relate to land and natural resources.  The legal framework also provides definitions for ‘local communities’. The rights promoted and protected, include:

 

Non Discrimination

The PNG National Constitution obliges the Government, as the custodian of the people of PNG, to recognize and ‘uphold’ the Underlying Laws governing customs and traditions and

the rights associated with them. These are also detailed and reinforced via specific Acts of Parliament. This legal framework outlines all available means of ensuring there is sufficient remedy to address any discrimination shown towards customary landowners/groups.

 

Self Determination

This is recognized in the National Constitution and also detailed within specific Acts of Parliament which are designed to facilitate and to recognize this right through the recognition of primary forms of traditional decision-making structures.

 

Rights associated with culture

The legal framework outlines a clear objective towards safeguarding customary landowner’s and local communities’ rights as they relate to culture and also indirectly includes a respect for their identity, customs, traditions and institutions. There is various legislation which promotes the need to maintain cultural inheritance through the establishment of the institutions and systems which support and facilitate its preservation.

 

Collective tenure rights

PLRs recognize the collective rights of forest ownership in PNG through the establishment of ILGs as per the relevant legislation. Incorporated Land Group (ILG) are designed as a customary social unit to possess, manage and trade land. The National Constitution also recognizes the right to use their traditions to achieve this purpose and also provides for the process to be followed when the right over the land is extinguished or diminished for national interests.

 

Benefit sharing

The legislative framework in PNG covers mechanisms required for the fair sharing of benefits derived from forest resources. Forestry legislation also establishes mechanisms by which customary landowners are able to be involved in forest industry activities and also directly benefit from them.

Traditional knowledge has always been an aspect of customary law which is recognized under the Constitution. Traditional Knowledge is referred to in the PA Bill (currently awaiting endorsement by Parliament)

Cancun Safeguard D

Relevant PLRs to be used to ensure the implementation of this Safeguard

The relevant PLRs[22] provide for equal opportunities for the participation of every citizen in the development process and also make it mandatory for customary resource owners and local communities to be present on decision making bodies[23] concerning the use of forest resources. PLRs[24] also make it mandatory for participation at the subnational level and comply with the basic elements of international law in the process.[25] The responsibilities of all respective agencies in relation to public participation are defined within forestry and natural resource PLRs.[26] Forestry regulations set out timeframes for inputs. PLRs provide for the Right to Freedom of Information[27] and establish procedures for citizens to access it, subject to certain restrictions. There are also provisions which outline the process of providing inputs and receiving them.[28] Refusals of applications must state the reasons and has to be registered in a ‘register’ which is open to public scrutiny.[29] PLRs provide for access to justice through clear internal administrative processes[30] and relate to disputes over environmental plans or impact assessments.[31] PLRs [32] allows for a non-prohibitive option in allowing for the pursuit of further legal remedies[33] despite also using internal/administrative dispute resolution processes.[34] It also clearly stipulates the timely delivery of rulings as well.

 

PLRs provide legally recognized traditional structures used by customary landowners to engage with corporations, government, and other stakeholders in activities concerning the utilization/development of their land or natural resources.[35] This is also recognized and provided for within forestry, land and customary law. Forestry legislation[36] provides for financial assistance to ensure that the ILGs are contributing effectively towards the management and development of the forest industry activities. The National Constitution refers to Equality and Participation[37] and reflects the intentions of the UNDRIP[38] especially in relation to issues concerning the access to and use of customary land and resources for development purposes. It also provides for various guaranteed rights and freedoms[39] which are core to ensuring compliance with the right to FPIC also embodied within relevant Acts of Parliament[40] and specific national policies[41] also in accordance with the ILO 169.

 

The Constitution recognizes Gender Equality[42] and the Right of women citizens to participate in all economic activities.[43]This is further recognized and encouraged in specific PLRs at the national level.[44]  Gender discrimination issues are also addressed within specific policies of the public service[45] and applicable within all sectors. There are also dedicated public and private agencies established to implement this right and to raise awareness and implement policies on gender equality and discrimination in PNG.

Cancun Safeguard E

Relevant PLRs to be used to ensure the implementation of this Safeguard

Relevant PLRs promote the conservation of natural forest and biological diversity as per the objectives of the Constitution and specifically through its planning process.[46] Relevant PLRs mitigate threats imposed to flora and fauna species as per international law.[47] This includes the protection of specific kinds of endangered wood species with measures to monitor and control the trade in these species also included, and the control and trade of endangered species.

 

Forestry Policy provides for background considerations[48] in relation to forest conversion within FMAs as well as outside of Forest Management Agreements (FMA).[49] In addition, Environment and Forestry legislation set some degree of ‘control’ over conversion in both public and private forests through environmental impact assessments and mitigation measures.[50] Currently, areas subject to FCAs, outline clear procedures to monitor the development of agricultural projects. Any failure to achieve the planned targets under FCA’s results in the seizure of logs held by the company in breach, and the disposal of them is free of production costs.[51]

 

Relevant PLRs take account of and address the ecological, biological, socio-cultural and economic contributions of forest resources via Acts of Parliament and through other forms of standards/guidelines and Certification processes.[52] Forestry PLR’s provide for adequate rights to fair distribution of benefits arising from the use of forest resources. Benefit Sharing arrangements are also clearly stipulated within the present broader legal framework of general natural resource sectors as well.

Cancun Safeguard F and G

Relevant PLRs to be used to ensure the implementation of this Safeguard

Relevant PLRs require updating land use and forest inventories for management and land use planning purposes and as a way of monitoring forest destruction.[53] This is achieved through the “REDD+ Web Portal”[54], created through the joint collaboration of government and key international partners.[55]  Voluntary legality & chain of custody verification schemes,[56]chain of custody, and FSC Controlled Wood certification is also promoted in PNG. PLRs in PNG include measures to address drivers of deforestation and forest degradation[57]. PLRs at the national and subnational level encourage alternative livelihoods for local communities and customary resource owners.[58]

[2]National Forest Policy 1991, Part II (2) refer to Forest Management Policies and outlines the basis for all National Forestry Development Programmes, and includes the need for all forestry in the country to be managed in accordance with this policy.

[3]The Forestry and Climate Change Framework for Action 2015 , Section F – this refers to Climate Change Initiatives under UNFCCC and mention specific reference to REDD+ under Clause (F.2(i)(e) as a possible activity to be included within their forestry mandate. However, this document is now considered outdated.

[4] The MTDP III, 2018-2022 has specific c sections (2.1 and 3.2, 3.3, 4.2 and 4.8 ) which make reference to forestry as part of  broad targets for increased revenue and wealth creation and responsible sustainable development These sections set out clear indicators and targets for this.  Forestry targets and indicators are tied into the broader goal of responsible sustainable development and covers  the reduction in round logs and increases to downstream processing, conservation and sustainable management of forests, sustainable reforestation and afforestation programmes and protecting and conserving rainforests through the reduction in primary forest depletion rates per year from logging. In this policy document they are presented as key results areas (KRAs) for the country. .

[5]Key Results Areas

[6]The Fourth National Goal and Directive Principle of the Constitution of PNG and section 25 – Implementation of the NGDP’s.

[7] These are: United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol to the UNFCCC, Cancun Agreement, Convention on Biological Diversity, Convention on the International Trade in Endangered Species of Wild Flora and Fauna (CITES), Convention on Wetlands of International Importance Especially as Waterfowl Habitat, UN Convention on the Law of the Sea, Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter, Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, International Tropical Timber Agreement 1983, International Tropical Timber Agreement 1994, Torres Strait Treaty 1978.

[8] Section 51 of the National Constitution.

[9] Section 51 of the National Constitution.

[10] Section 51 (3) of the National Constitution.

[11] Section 103A (3)(a) of the Forestry Act, 1991

[12] Section 103A (3)(b) to (c) Forestry Act, 1991.

[13] Forestry Regulations 1998, regulations 245 (access to Maps), 246 (access to Forms related to various aspects of Forestry activities/operations and PNGFA regulated matters), 247 (access to Tender Forms), and 249 (access to the Public register).

[14] Those of particular relevance are the Auditor General’s Office, the Department of Finance, Department of Treasury and the Internal Revenue Commission as well as the Public Accounts Committees.

[15] Under Part VIII and Division 1 the relevant Public Finance offices are established. These include the Auditor-General (s.213 and 214), and the Public Accounts Committees (s. 215 and 216).

[16]This provision, however, focuses on the rights emanating from persons in custody or charged with criminal offences.

[17] Section 37 of the National Constitution.

[18] Section 155(2), (3) and of the National Constitution.

[19] Supreme, National Court and District Courts of PNG.

[20] Under section 58 of the Forestry Act in relation to Forest Management Agreements and the 34 step process for establishing this.

[21] Under section 53 of the Constitution.

[22] National Goals and Directive Principles, 2 and ss.37 and 55 of the National Constitution.

[23] E.g., section 46 of the Forestry Act 1991 and representation of customary owners is seen in the National Forest Board, the Provincial Forest Management Committees (PFMCs) and through multi-stakeholder representation.

[24] Participation by all key stakeholders is provided for under sections 98, 115 and 116 of the OLPLLG 1998.

[25]ILO Convention 169, Article 6 – I.

  1. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

[26] Example in Forestry – the responsibilities of the Board in initiating this process is defined under Regulation 83 (and specifically Form 80), in which a notice is expected to be drafted and sent to these respective stakeholders advising them to provide their views within a specified time. This process is also provided for Timber Permits and under some of the activities requiring Timber Authorities described in Regs. 160 – 168.

[27] Section 51(3) of the Constitution.

[28] Section 88(c)(vi) & (vii) of the Forestry Act 1991 and Regulations 160, 162, 164, 166 and 168 and Form 165 of the Forestry Regulations 1998.

[29] Access to this register, however, is subject to the payment of a fee. The Register is established under Section 103A of the Forestry Act 1991.

[30]Section 14 of the Environment Planning Act.

[31] Section 13(1) of the Environment Planning Act

[32] The Environmental Planning Act, 1978.

[33] Section 20 of the Environmental Planning Act, 1978.

[34] Section 18 of the Environmental Planning Act, 1978.

[35] Incorporated Land Groups are created for this sole purpose under the Land Groups Incorporations (Amendment) Act 2009.

[36] The Forestry Act 1991 and Forestry Regulations, 1998.

[37] National Goals and Directive Principle 2 of the National Constitution.

[38] UNDRIP – Article 10 “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Also applicable are Articles 28 and 32.

[39] Sections 32 – 56 of the National Constitution.

[40] Forestry Act 1991, the Oil & Gas Act 1998, the Fauna (Protection and Control) Act and the Climate Change Management Act 2015.

[41] Under Pillar 1 of the Protected Areas Policy and specifically mentioned in the recent NRS 2017, the CCDMP and the CCDA developed FPIC Guidelines for REDD+ Projects.

[42] National Goals and Directive Principles 2, subsections (3) and (5).

[43] This is stated specifically in section 55 of the Constitution in regards to the Right to Equality of Citizens.

[44] The Papua New Guinea National Policy for Women and Gender Equality 2011-2015.

[45] The National Public Service Gender Equality and Social Inclusion Policy.

[46] The Constitution, NGDP 4(a) refers to the requirement to “manage, develop and protect the Nation’s forest resources and environment in such a way as to conserve and renew them as an asset for the succeeding generations.”

[47] Convention on the International Trade in Endangered Species.

[48] Example, considerations such as whether an area is designated as production or protection forests under the Forestry Policy and Act. This includes ascertaining whether the area is ideal for potential timber harvesting or not (as per criteria listed under the PNG Logging Code of Practice).  These are limited to areas proposed for FMA’s and TA’s/TP’s. The NFDG’s mention consideration of biodiversity in relation to the process of Forest Land Conversion.

[49] Article M.1 of the National Forest Development Guidelines – Conversion of Forest Lands.

[50] Mitigation activities within forestry legislation relate to provisions which deter any interference within naturally forested areas such as the 10% set aside for ‘conservation areas’ within FMAs or other timber production areas

[51] This is often the outcome of a project commenced under an SABL as per the Land Act 1996. However, these processes are now subject to review as part of national land reforms and amendments to all land legislation

[52] Example, as seen in the FSC National Forest Management Standards for PNG.

[53]Section 53(2)(e) of the Climate Change Management Act 2015.

[54] This is an all-encompassing tool using GIS and satellite imagery to monitor and distribute information on land classification, land use, forest cover and forest resources and areas suitable for afforestation, conservation and traditional/indigenous land use.

[55] The key agencies involved in setting up this system are the PNGFA, CCDA and UNREDD.

[56] These are the standards and certification processes used by the forest industry/private sector in PNG to verify the processing of timber including the SGS ITTO TLTV (Timber Legality and Timber Verification Standards).

[57] In the recent NRS These the main drivers of deforestation were (i) comercial logging (98.1%) are and (ii) other forms of land use (small scale logging, gardening and fires, etc (1.9%): whilst the main drivers of forest degradation were (i) subsistence farming (shifting agriculture)(55%), clearing, (ii) commercial agriculture (26%) and (iii) forest to other land use and agriculture (19%).

[58] E.g the development of EcoForestry Guidelines as part of the National Forest Policy.

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