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State, Society and Governance in Melanesia Project
Australian National University
Social conflict and development
The Communication for Development programme has the primary task of
training students to work in the mineral resource extraction industries.
Their role in these industries is to work with landowner groups and companies
and to facilitate communicative processes between these groups in such
a way that the developmental goals of the landowners, companies, regional
groups, provincial governments and the state are supported and not negated
by conflict. The role envisaged for the students places them at the critical
interface between multi-national companies and local landowner and village
groups. Whichever side they work for, landowners or companies, students
will spend a considerable part of their working lives acting as translators
and communicators, communicating the goals, methods and aspirations of
each side to the other.
The collision between modernity and tradition has long been recognised as a major potential source of conflict in Papua New Guinea. Douglas Oliver's reports on the impact of the giant Bougainville copper mine on the Bougainville villagers written during the 1970's contain many prescient comments and warnings.1 What was not fully understood at that time was the extent to which many of the conflicts provoked by the development process had their roots in custom, that custom law processes would prove inadequate to the task of resolving inter-group disputes and that some landowner groups would respond to the inter-group conflict by reasserting the sovereignty of their customs and laws in their pursuit of justice and the redress of grievance. Similar comments may also be made about the recent court cases in Australia between the Lower Ok Tedi landowners and the giant Australian company BHP, the "guiding hand" behind the Ok Tedi Mining company. The point which I take from these examples is that our students will be working, everyday, on the critically difficult interface of state law and custom law. In any society, and Papua New Guinea is no exception, law has the general function of regulating and containing conflict. Laws tend to be effective insofar as they are known, and used and provide consistent solutions to a range of problems. Laws may be ineffective insofar as they are unknown, unused, give rise to variable solutions or are seen to harass people in the conduct of their ordinary, everyday lives. These are the common problems of law and legal education. Some problems, however, are unique to the Papua New Guinea context of endemic legal pluralism and sovereignty contestation,2 raising special difficulties that place them at the core of the work interests of our students. These problems include:
Problems of legal policy in Papua New Guinea
The primary piece of legislation governing the environment in Papua
New Guinea is The Environmental Planning Act 3 (EP Act) passed in 1982.
The passing of the EP Act followed an international move in the early 1980's
for legislatures to make legislation at the national level governing the
relationship between development and the environment and setting standards
for the protection of the environment. In these respects the EP Act followed
"best practice" as it was understood at the time and contains clauses reflecting
recent advances in environmental thinking such as:
"environment" means the total stock of physical, biological and social resources available to man and other species and the ecosystems of which they are a part; (EP Act I, 2).
The EP Act widened previous legal definitions of "environment" to include not only flora and fauna but also natural features and "social resources". The EP Act was intended to be the primary vehicle for the assessment of environmental impact of major development projects and requires developers to submit for approval environmental plans and impact assessments. In these respects the EP Act is unexceptional. In practice, however, the EP Act has proved to be "dead law" in the sense that since its passing it has engendered no prosecution, nor is it likely to do so. The reasons for this are complex. They involve: the exceptionally wide powers of ministerial discretion that are granted under the Act; the assertion within the Act that matters of national interest will overrule environmental protection conditions; the limitation of the juridical scope of the Act (which had the unintended and undesirable consequence of forcing the Lower Ok Tedi landowners into an offshore jurisdiction); and, possibly, some deficiencies in the administration of the Act.
What is of interest in this context, however, is not so much the limitations of the Act and its administration, but rather the underlying policy problems. The principal problem is that while the Act more or less satisfactorily performs its allotted task at the national level, it is now widely recognised that the protection of the environment must, in order to be effective, be grounded in local interests. The role of national legislation is to set certain standards, to ensure uniform codes, to establish principles, and to supply a legal framework for local activisms. Accordingly, many countries have tended in recent decades to make legislation the national interest and regulation the local interest. The duty of care for the environment is found in its most effective form at the local level and an important purpose of national legislation is therefore to give an effective legal voice to local and community interests. It is this latter feature that is absent in Papua New Guinea.
The structure of law in Papua New Guinea
The structure of law in Papua New Guinea is unusually complex. The
Constitution, while establishing the primacy of Parliamentary legislation
also recognises the existence of custom law and common law. The relationship
between these three kinds of law is not fully worked out in The Constitution
and it has been neither clarified by later legislation, nor by judicial
decisions.4 Among the many difficulties is the fact that The Constitution
does not identify "customary law", but rather talks only of "underlying
law". It was the intention of the authors of The Constitution that subsequent
Acts develop the concept of underlying law by defining and incorporating
custom law points and principles in to the legal system. This has not been
done. Nevertheless a hierarchy of laws has been established (The Constitution
s9 and sch. 2.1). Following Orr on this point:
Customary law is subject to written laws and common law is subject to both.
Firstly, customary law is not adopted where and to the extent that it is inconsistent with a Constitutional Law (The Constitution and the Organic Laws). There may in particular be clashes between, on the one hand custom, and on the other hand The National Goals and Directive Principles, the Basic Social Obligations and the equality of citizens (s550). In all cases the constitutional requirements prevail.
Secondly, "custom" is subject to statutes . . . [and under the powers granted by the Organic Law on provincial Government (OLPG)] . . . the provincial Act, regulation or rule will prevail over custom. 5
The effect that customary law has on common law has not yet been established, nevertheless it appears that where there is an inconsistency, custom applies and not the common law.6 It is unlikely that any significant advances will be made towards clarifying this situation for a considerable period of time.
The existence of these problems within the law has, perhaps, had the unfortunate effect of diverting attention away from the underlying policy problems. Whatever the legislative confusion there remain the larger problems of the relationship between law and civil society.
The function of the police is quite well understood in rural and village Papua New Guinea. There is a long history of colonial policing and a continuation of the colonial practices and policies into the modern period. However in recent decades the ability of the police to function as a para-military force, a direct extension of the power of the state, has declined. This decline has been paralleled by the rise of assertive local sovereignties.
Local communities, with a solidarity defined through landownership and perceiving the state to have failed in its developmental tasks, have in recent years frequently confronted the state with assertive sovereignty and compensation claims. The response of the state has been, in many cases, to avoid confrontations and to meet local group compensation demands for both real and imagined wrongs. The moral basis of these claims is to be found in the custom law of the group. But the same landowner group, pursuing similar custom law claims against a near neighbour may find itself enmeshed in a violent conflict. In these contemporary regional conflicts the police and the state are reduced to being largely powerless bystanders playing, at best, a mediating role between the warring parties.
What is absent is a regional civil society that transcends the moral community of the village. What is absent is the structure of Act, regulation and rule that both supports and is supported by the institutions of a regional civil society. I refer here to those aspects of law and society that have little or nothing to do with policing but nevertheless play an essential role in supporting the politics and economics of daily life of all citizens. They have the function of regulating and supporting markets, exchanges, rights and obligations, entitlements, of being the rules of everyday life. These matters are part of every developed society and their role in the growth and development process has gained in recognition in recent decades.7
Law and development in Papua New Guinea
Since its enactment in 1978 the Organic Law on Provincial Government
has been legislatively revisited many times. The discussions have usually
focussed on the question of the giving of more autonomy to the regions
to arm them against the perceived overweening power of the centralised
state. Politically this has been seen as a contest of sovereignty between
the local and the central. This, I think, is a mistake. Provincial government
in Papua New Guinea does not effectively represent any local principle,
nor can it be reasonably expected to do so. It is simply too distant from
the myriad of local communities that make up each region. Provincial government
can expect no better success than national government in this respect.8
Nevertheless the changes to the OLPG have had the effect of creating the
possibility of locally grounded regulation in some areas, particularly
in relation to the environment and in the cities. Recent discussions with
officials on these matters have led to complaints being aired on the turpitude
of State Government on many legal matters. My response has been that to
wait for the state is to wait forever and in any case the state cannot
address these problems. What is called for are positive initiatives on
the part of responsible officials that will have the effect of creating
the conditions that inspire and support the development of appropriate
Acts and rules and regulations at the regional and local level. In short
the role of the administrator in stimulating legal advances through generating
effective rules and regulations at the local level should not be overlooked
and, given the development needs of Papua New Guinea and the necessity
to build and strengthen the bonds of civil society, a society that transcends
the village, these matters should be given some priority.
When a mineral resource extraction company enters a region for the first time it typically deals with landowners, villagers, forest dwellers, who have been waiting for the state to bring development to them for a very long time. They have expectations for the modern. Yet when the company officials step out of their offices and into the village or into the forest clearing to meet with landowners they step into a custom law setting. When liaison officers make their regular trips to villages to hear the "talk", they hear talk which comes from a custom law context and insofar as the talk raises disputatious matters they are so in reference to the villagers aspirations for justice to be done according to custom. Land is the physical basis of the sovereignty of the community and custom law is the cultural basis of the sovereignty of the community. In order to deal with these matters effectively community liaison officers must have a knowledge of, and sympathy for, custom law issues. Mining companies ignore custom law and the individual and community desire for justice at their peril.
When they are dealing with these matters liaison officers are in a position to, through the exercise of a knowing judgement, lay the basis for future institutional development. At the beginning of the mine project the host landowner community may be viewed as traditional. Before ten years have elapsed this community will have been transformed by the process of economic differentiation, migration in and out, employment and unemployment, the rise of new forms of politics, new kinds of households, all the factors that accompany development and when combined create a sharp sense of difference between people where none existed before. Traditional forms of dissensus frequently continue and may also sharpened by the movement to the modern. Traditional forms of consensus are found inadequate. New forms are required.
There are three main requirements that must be met for endogenous economic growth to take place in a developing country. The three requirements may be expressed as "gaps".9 The first (and best understood) is the "object gap" - capital, human capital and embodied capital. The second is the "idea gap" - the transfer of ideas from the developed world to the developing country. The third is the "trust gap" - in a developing country there is a relative absence of the set of shared expectations, norms, rules and institutions that support the interpersonal exchanges that lie at the heart of the economic life of the market, town and city in a developed society. This is the social element in economic development. It is easy to underestimate the extent to which the institutions of a developed society support modern forms of interpersonal exchange because their ubiquity ensures that they form mostly a backdrop to people's conscious lives. The formal legal system of a country constitutes the projecting tip of this complex of ideas and expectations. But the legal order would not exist without a supporting framework of social practices and attitudes that simultaneously support and constitute the element of trust that is part of all social and economic exchanges and define where trust ends and bad dealing, malfeasance, misfeasance and nonfeasance, begins.
Development economists have devoted considerable efforts towards the definition and analysis of the object gap, the need for capital and embodied capital, in the developing countries. In recent years some attention has been paid to the ideas gap, both to limit and to aid the transfer of intellectual property to developing countries. In each case there is an obvious and prominent role for North South transfers in overcoming these gaps. But overcoming the "trust gap" in a developing country is strictly a local problem. The gap may only be filled and the institutions created by the small and incremental gestures of individuals. Institutions cannot be imported into the country on consignment like rice and computers. There is no Asian Development Bank loan for this purpose. It is my view that it is in precisely this area that liaison officers can fulfil a most important role. Working at the critical interface between custom law and state law they are able to supply a vision of trust and through their knowing use of rule and regulation create an example of the use of trust in the modern context where none such has existed before.
Some constructive responses to the policy problem
The problems of the mining company and the liaison officer are really
no different from those of the government itself. What is required in the
long run is the consent of the governed. The agreement to live under the
rule. But consent to rule must be a democratic consent. Without this consent
there is only disorder or authoritarian rule, the rule of the soldier with
the gun. Located in the regions, faced with strongly assertive local sovereignties
and their demand for "development", mining companies are confronted with
the same problems that face a governing power. By forming a relationship
with landowner groups mining companies become inextricably entwined in
local politics and come, inevitably, to exercise a decisionist role, to
be a site of regional sovereignty. In seeking agreements with landowner
groups mining companies enter into a politics of negotiation. However in
creating accordances, which inevitably convey benefits to some and not
others, they simultaneously create a politics of envy and enmity. In this
way mining companies through their presence create and give focus to a
regional, dissensual and divisive politics. In doing so they take on, for
their "subject" populations, some of the characteristics of the state.
Faced with making the region "work", of being the vehicle for development,
mining companies become a substitute for an absent government. In order
to realise their own policy goal of contract stability mining companies
must, therefore, accept at least some of the responsibilities of government.
Community relations policies in the mineral resources extraction industries
should aim to initiate, build and strengthen the institutions of a modern
civil society.
Put in the simplest possible form a two step policy is required:
Mining companies bring to their regions a formidable capacity for rational decision making. Much of this takes place within the familiar technical environment of the project. It is reasonable for a region to expect to receive a direct benefit from this capacity for project design and implementation. But project design and implementation must be subordinate to a policy of generative juridicism. A policy of generative juridicism recognises that a mining company's responses to its landowner problems have a decisionist character (this is true of virtually all company operations much of the time). If the decisionist role is not exercised in a justicial manner there may be a double offence. An offence not only against custom law and traditional community concepts of justice but also against the institutionalisation of trust that is required to build a world above and beyond the village out of the every day exchanges of individuals. An offence of this latter kind will destroy the future. I hope that our students will create a future.
Notes
1. Douglas L. Oliver, Aspects of Modernization in Bougainville, Papua New Guinea, Honolulu Pacific Islands Studies, Centre for Asia Pacific Studies, 1981: 36,38,46,80-2.
2.The relationship between social conflict, legal pluralism and contested sovereignties is discussed in John Rivers "Formulating Basic Policy for Community Relations Programmes in the Mining Industry", Proceedings of the GEM Conference, AUSMIM, Madang, October, 1997.
3. The Environmental Planning Act is presently undergoing what is likely to be a substantial revision. I understand that this will include some measures to deal with the emplacement of regulatory mechanisms and the appointment of appropriately empowered officials. Some of these measures have already been informally put in place. For example the Ausaid funded Bridge Replacement and Upgrading Programme requires an environmental impact assessment for major works to be approved by an officer of the Department Public Works with "signing authority". However the recent relegation of the Department of Conservation to an Office status and the very small number of trained personnel available to implement the provisions of the present or any future Acts means that little change can be expected in this important area of public policy and public action.
4. Zorn argues that there has been at least a weak trend towards the use of genealogies by the courts to settle land claims. Zorn overlooks the fact that, even if this trend does exist, the use of genealogies to generate a decision making rule (which is something the courts do) may have little or a negative impact on the resolution of disputes, Zorn, J. "Graun Bilong Mipela: Local Land Courts and the changing customary law of Papua New Guinea". Pacific Studies 15:2, 1992.
5. Orr, Robert "Provincial Government and Customary Law", Melanesian Law Journal, special issue, 1991:78.
6. Orr, Robert "Provincial Government and Customary Law", Melanesian Law Journal, special issue, 1991:79.
7. See for example: Edgardo Boeninger, "Governance and Development: issues and constraints", in World Bank, Proceedings of the World Bank Annual Conference on Development Economics - 1991, World Bank: Washington, 1992. Peter Larmour, "Corruption and Governance in the South Pacific", State, Society and Governance in Melanesia, Discussion Paper 97/5, Research School of Pacific and Asian Studies, Australian National University: Canberra, 1997. Denis-Constant Martin, "The Cultural dimensions of Governance", in World Bank, Proceedings of the World Bank Annual Conference on Development Economics - 1991, World Bank: Washington, 1992.
8. Letter writers to the Post Courier newspaper frequently assert that Provincial Governments simply reproduce the kleptocracy and neo-patrimonialism of national government. Post Courier 7/5/98, 11/5/98, 14/5/98.
9. The three gap formula is taken from Barrett, Christopher B., "Idea Gaps, Object Gaps, and Trust Gaps in Economic Development", Journal of Developing Areas, 31: 553-68, 1997.
10. The extreme pluralism of Papua New Guinea, the prevalence of social conflict and the considerable social capital devoted to the management of conflict all suggest that the regional economies of Papua New Guinea should be analysed in terms of prudential values rather than an economics of taste.