Landowners Challenge Section 6 of the Oil and Gas Act
By MOHAMMAD BASHIR
In a test case, a constitutional reference has been sought by Michael Wilson of Warner Shand Lawyers on behalf of 24 clans of Tuguba in Hides gas project to challenge the validity of Section 6 of the Oil and Gas Act (OGA) and the powers of the State to compulsorily acquire land for the benefit of outsiders under the Land Act.
The referrers who are customary land rights holders and members of 24 clans from Tuguba are seeking opinion pursuant to Section 18(1) of the Constitution on questions relating to interpretation or application of Section 32, 41, 53 and schedule 2.4.6(2) of the Constitution.
The reference states that the large Tuguba tribe owns and occupies land territory across 3 provinces which include Hela, Gulf and Western provinces and speak one language.
Of the 26 main clans and many sub-clans, the reference is made by 24 and the rest may join as parties later.
All Tugubas subscribe to the ‘Gigira Laitebo’, legend of the creation and the ‘Laitebo’ prophesy which is about the energy of light under Mt Gigira which would light the world.
Under Tuguba customary land, there are several oil and gas pools known as Hides, Juha and Angore.
Following the PNG LNG Agreement of May 22, 2008, the licencee (ExxonMobil and partners) will take out the gas under the surface of Tuguba customary land and pipe it to portion 152 to be processed for export.
The reference contends that under customary law, the primary user is notified whenever another clansman wants to use a land or the second rule is that prior consent must be given before a foreigner is allowed to use it, failing force is used to expel intruders.
The reference states that Section 6 of the OGA which deems petroleum and helium at or below the surface of Tuguba customary land as the property of the State is therefore contrary to customary law.
The referrers asserts that the definition of “land” in Section 3 of the Land Registration (Customary Land) (Amendment) Act 2009 and Article 26 of the UN Declaration on Human Rights on the rights of Indigenous People is consistent with their claim.
The Tugubas said by boycotting the signing of the Kokopo UBSA and LBBSA, they have never at any stage granted their consent to the State to award any licences under the OGA to the Licencees. Prominent Lawyer Peter Donigi’s book Lifting the Veil that shrouds Papua New Guinea was described as a God-sent by the referrers.
Their leader Simon Ekanda said: “Mr Donigi has by the words in his book; shown to us what we knew in our own hearts was right. This book is now our voice - the road is now clear for us. We have accepted the solutions as recommended in the book.”
“We thank Donigi for showing us how we can protect and benefit from our resources. When we get a decision in our favour we will be using the production sharing contract that is written in the book and nothing less will satisfy us,” Mr Ekanda said.
He said the State and developers can agree to settle their case outside the court only if they were prepared to enter into a production sharing contract.
“We note that under the Donigi formula, PNG will earn more than K100 billion over 30 years and not K40 billion as our government says we will get.
“Is it fair that foreign companies will take out of the country about K200 billion in profits over 30 years? We think it is not,” Mr Ekanda added.
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