Biodiversity Law and Policy in Papua New Guinea - College of ...

Biodiversity Law
and Policy in
Papua New Guinea
Papua New Guinea Institute of Biodiversity

Prepared by
Eric L Kwa
PhD Scholar (Auckland Uni), LLM (Hon) (UoW), LLB (Hon) (UPNG)
Faculty of Law
The University of Auckland
and
Law School
University of Papua New Guinea
May 2004
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Acknowledgment
This project was undertaken under the auspices of Program 7 of the Papua New
Guinea Institute of Biodiversity (PINBio). Program 7 is focused on Biodiversity
Policy and Legislation. The lead agency for the Program is the Department of Justice
and Attorney-General. The leaders of the Program are Ms. Masio Nidung Finter and
Mr. Douveri Henao. Several institutions are collaborators in the program. These
include: the Department of Environment and Conservation (DEC), Department of
Foreign Affairs, Department of National Planning, National Research Institute,
University of Papua New Guinea (UPNG), Papua New Guinea University of
Technology (Unitech), National Agriculture and Quarantine Inspection Authority
(NAQIA), National Cultural Commission and Conservation Melanesia.
The project involved several meetings in Port Moresby with relevant stakeholders, a
trip to three provinces namely; Eastern Highlands, Morobe and Manus, and a
workshop at the National Agriculture Research Institute (NARI) station at Laloki
outside Port Moresby. During the duration of the project, I was able to meet with and
talk to more than 80 people both in Port Moresby and in the provinces. The project
received overwhelming support from the government officials, non-governmental
organisations and individuals in the provinces and in the capital - Port Moresby.
The views presented in this document would not have found their place in this paper
without the contribution of all these individuals and institutions. My sincere gratitude
goes firstly to the Steering Committee of PINBio for having the confidence in me by
engaging me in this project.
Five individuals played a critical role in the outcome of this project. They are: Dr.
Wari Iamo – Secretary of DEC and the Interim Chairperson of the PINBio Board; Dr.
Teatulohi Matainaho – Chairperson of the Technical Steering Committee of PINBio;
Mr. John Genolagani – First Assistant Secretary of DEC; Ms Nidung Finter and Mr.
Douveri Henao from the Department of Justice and Attorney-General and the coleaders
of Program 7. I acknowledge their firm commitment to this project and
PINBio generally.
In Goroka, Lae and Manus, three individuals played a key role in organising the three
Provincial Consultative Meetings. Without the leadership of these three individuals I
would not have had these provincial meetings. My thank you to Mr. John Ericho of
the PNG Conservation Forum (Goroka), Mr. Taikone Gwakoro of the Morobe
Provincial Government and Mr. Wep Kanawi, the Administrator of Manus Province
for having the insight and commitment in organising these meeting.
A lot of people (about 80) contributed in one way or another to this project. To them
all I say thank you for your participation in this important milestone for PNG.
A special word of thanks is also due to Mr. Hostine Korokoro, of Manukau Institute
of Technology in Auckland for the technological support he provided to me in this
project. And finally but not the least, a sincere gratitude and thanks to my wife Enaha,
P Kwa for proof reading and making useful comments to the final text of this paper.
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As much as possible I have attempted to present in a coherent and readable manner
the views of every one that was involved in this project. The aspirations of PINBio
are also reflected in the paper. However, the views presented in this paper are those of
the author alone and not of PINBio. Any one wishing to comment or raise any issues
presented in this paper can contact me on: kwaeric@hotmail.com or write to me at:
Faculty of Law, The University of Auckland, Private Bag 92019, Auckland, New
Zealand or Law School, University of Papua New Guinea, P. O. Box 320, University,
NCD, Papua New Guinea.
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Table of Contents
Acknowledgment ..................................................................................................... iii
Table of Contents.......................................................................................................v
List of Policies and Laws Reviewed..........................................................................x
1. International ...................................................................................................x
1.1 Treaties.......................................................................................................x
1.2 Other International Documents.................................................................xi
2. Domestic .......................................................................................................xi
2.1 Policies......................................................................................................xi
2.2 Laws........................................................................................................ xii
Acronyms................................................................................................................xiv
Executive Summary ............................................................................. 1
Overview................................................................................................................1
Aims and Objectives of the Review.......................................................................1
Methodology..........................................................................................................2
Structure of the Report...........................................................................................3
Results....................................................................................................................3
1: Introduction ................................................................................... 7
1.1 Challenges to Papua New Guinea’s Biodiversity ......................................7
1.2 The Dilemma of Development...................................................................8
1.3 Changing the Development Paradigm .....................................................12
1.4 The Challenge ..........................................................................................15
2: International Biodiversity Policy and Law .............................. 18
2.1 Policy Framework on Biodiversity ..........................................................18
2.2 Legal Framework on Biodiversity ...........................................................22
2.2.1 The Convention on Biological Diversity (CBD) .................................23
2.2.2 The Cartagena Protocol to the CBD ....................................................24
2.2.3 United Nations Framework Convention on Climate Change
(UNFCCC)...........................................................................................25
2.2.4 Kyoto Protocol .....................................................................................25
2.2.5 United Nations Convention on the Law of the Sea (UNCLOS)..........26
2.2.6 Convention on the International Trade in Endangered Species (CITES)
27
2.2.7 Convention Concerning the Protection of the World Cultural and
Natural Heritage (World Heritage Convention) ..................................28
2.2.8 Convention on Wetlands of International Importance Especially as
Waterfowl Habitats (RAMSAR)..........................................................28
2.2.8 Agreement on Trade-Related Intellectual Property Rights (TRIPs
Agreement) ..........................................................................................29
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2.2.9 International Convention of the Union for the Protection of New
Varieties of Plant (UPOV)...................................................................32
2.2.10 International Treaty on Plant Genetic Resources for Food and
Agriculture (PGRFA Treaty) ...............................................................33
2.3 Key Issues Relating to Biodiversity under the Treaties...........................35
2.3.1 Creation of a National Biodiversity Authority.....................................35
2.3.2 Access to Biological Resources ...........................................................35
2.3.2.1 Prior Informed Consent........................................................................36
2.3.2.2 Benefit Sharing ....................................................................................36
2.3.2.3 Technology Transfer............................................................................37
2.3.3 Intellectual Property Rights .................................................................38
2.4 Developing Synergies in International Biodiversity Law........................39
2.5 The South Pacific Region and Biodiversity.............................................41
2.5.1 Regional Environmental Treaties ........................................................41
2.5.1.1 Environment Generally........................................................................41
2.5.1.2 Marine Environment ............................................................................43
2.5.1.3 Pollution...............................................................................................44
2.5.2 Regional Initiatives ..............................................................................44
2.5.2.1 CBD and UNFCCC..............................................................................45
2.5.2.2 Cartagena Protocol to the CBD............................................................45
2.5.2.3 UNCLOS..............................................................................................45
2.5.2.4 UPOV Convention ...............................................................................46
2.5.2.5 PGRFA Treaty .....................................................................................46
2.5.2.6 TRIPS Agreement................................................................................46
2.5.3 Where to Next ....................................................................................46
2.6 Conclusion ...............................................................................................46
3: Papua New Guinea’s Policy on Biodiversity............................. 48
3.1 Introduction..............................................................................................48
3.2 Overview of the National Development Goals........................................49
3.2.1 National Goals and Directive Principles..............................................49
3.2.2 The Medium Term Development Strategy 2003-2007........................50
3.2.3 Poverty Alleviation ..............................................................................52
3.2.4 Health...................................................................................................52
3.2.5 Education .............................................................................................53
3.2.6 Law and Order .....................................................................................54
3.3 Policies on Components of Biodiversity..................................................55
3.3.1 Environment Policy .............................................................................55
3.3.2 Forests..................................................................................................56
3.3.3 Eco-Forestry Policy .............................................................................57
3.3.4 Fisheries ...............................................................................................58
3.3.5 Transport..............................................................................................59
3.3.6 Tourism................................................................................................60
3.3.7 Agriculture ...........................................................................................60
3.4 Policies on ABS .......................................................................................61
3.4.1 Energy ..................................................................................................62
3.5 Conclusion ...............................................................................................65
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4. Papua New Guinea Law on Biodiversity................................... 67
4.1 Introduction..............................................................................................67
4.2 Laws on Biodiversity ...............................................................................69
4.2.1 National Parks Act ...............................................................................69
4.2.2 Conservation Areas Act .......................................................................71
4.2.3 International Trade (Fauna and Flora) (Amendment) Act 2003..........77
4.2.4 Fauna (Protection and Control) Act.....................................................77
4.2.5 Environment Act 2000.........................................................................79
4.2.6 Forestry Act 1991 ................................................................................82
4.2.6.1 Reservation of Forests and Trees.........................................................82
4.2.6.2 Environmental Management................................................................83
4.2.6.3 Designation of Forest Areas.................................................................84
4.2.7 Organic Law on Provincial Governments and Local-level
Governments 1995...............................................................................85
4.2.8 Fisheries Management Act 1998 .........................................................86
4.2.9 Physical Planning Act 1989.................................................................90
4.2.10 Dumping of Wastes at Sea Act ............................................................92
4.2.11 Prevention of Dumping of Wastes at Sea Act .....................................92
4.3 Access to Biological and Natural Resources ...........................................95
4.3.1 Forestry Act .........................................................................................95
4.3.2 Mining Act...........................................................................................97
4.3.3 Oil and Gas Act..................................................................................100
4.3.4 Fisheries Management Act ................................................................101
4.3.5 Conservation Areas Act .....................................................................102
4.3.6 Fauna (Control and Protection) Act...................................................103
4.4 Benefit Sharing ......................................................................................104
4.4.1 Organic Law on Provincial Governments and Local-level
Governments......................................................................................104
4.5 Intellectual Property Rights ...................................................................106
4.5.1 Patents and Industrial Designs Act 2000 ...........................................106
4.5.2 Copyright and Neighbouring Rights Act ...........................................108
4.5.3 Trade Marks Act ................................................................................109
4.5.4 Income Tax Act..................................................................................110
4.5.5 National Agriculture and Research Institute Act ...............................112
4.6 Conclusion .............................................................................................112
5: Research and Development in Biodiversity ............................ 114
5.1 Introduction............................................................................................114
5.2 Research and Development Organizations ............................................115
5.2.1 Research and Development in Higher Learning Institutions.............116
5.2.1.1 University of Papua New Guinea ......................................................116
5.2.1.2 Papua New Guinea University of Technology ..................................117
5.2.1.3 University of Goroka .........................................................................118
5.2.1.4 University of Vudal............................................................................118
5.2.1.5 Pacific Adventist University..............................................................118
5.2.1.6 Divine Word University.....................................................................118
5.2.2 Special Research Organisations.........................................................119
5.2.2.1 National Agriculture Research Institute.............................................119
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5.2.2.2 Institute of Medical Research ............................................................119
5.2.2.3 National Aids Council........................................................................120
5.2.2.4 National Fisheries Authority..............................................................120
5.2.2.5 Forest Research Institute....................................................................121
5.2.2.6 Coconut and Cocoa Research Institute ..............................................121
5.2.2.7 Coffee Research Institute...................................................................122
5.3 Research on Specific Biological Species...............................................122
5.3.1 Animals Act .......................................................................................122
5.3.2 Cocoa Act...........................................................................................122
5.3.3 Kokonas Indastri Koporesen Act 2002 ..............................................123
5.3.4 Crocodile Trade (Protection) Act.......................................................123
5.3.5 Fauna (Protection and Control) Act...................................................123
5.3.6 International Trade (Fauna and Flora) (Amendment) Act 2003........124
5.3.7 Medicines and Cosmetics Act 1999...................................................124
5.4 Control on Research and Development .................................................126
5.4.1 Coffee Industry Corporation (Statutory Functions and Powers) Act
1991....................................................................................................126
5.4.2 Conservation Areas Act .....................................................................126
5.4.3 Criminal Code Act .............................................................................127
5.4.4 Dangerous Drugs Act (Consolidated to No 23 of 1990)....................128
5.4.5 Environment Act 2000.......................................................................128
5.4.6 Local-level Governments Administration Act 1997..........................128
5.4.7 National Agriculture, Quarantine and Inspection Authority Act.......129
5.4.8 National Institute of Standards and Industrial Technology Act.........131
5.4.9 National Cultural Commission Act 1994...........................................131
5.4.10 National Narcotics Control Board Act 1992......................................131
5.4.11 National Parks Act (Consolidated to No.33 of 1989)........................132
5.4.12 Oil Palm Industry Corporation Act 1992...........................................133
5.4.13 Organic Law on Provincial and Local-level Governments 1995.......133
5.4.14 Papua New Guinea Science and Technology Council Act 1992.......133
5.4.15 Plant Disease and Control Act ...........................................................134
5.4.16 Poisons and Dangerous Substances Act ............................................135
5.4.17 Provincial Governments Administration Act 1997............................135
5.4.18 Public Hospitals Act 1996 .................................................................135
5.4.19 Public Health Act...............................................................................136
5.4.20 Spice Industry Act 1989.....................................................................137
5.5 Conclusion .............................................................................................137
6: PINBIO ....................................................................................... 139
6.1 Introduction............................................................................................139
6.2 Establishment of PINBio .......................................................................139
6.3 PINBio Programs ...................................................................................140
6.4 Guiding Principles Governing Research and Development in PNG .....142
6.4.1 Basic Research Agreement ................................................................142
6.4.2 Elements of Collaborative Research..................................................143
6.4.3 Principles Governing Research towards Commercial Development.144
6.4.4. Procedures for Lodging an Application for a Research Permit .........145
6.4.5 Criteria for Collection, Use and Transfer of Original Material .........146
6.5 Strategic Issues for PINBio....................................................................147
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6.6 Future Direction .....................................................................................147
7: Conclusion and Recommendations.......................................... 149
7.1 Conclusion .............................................................................................149
7.2 Recommendations..................................................................................150
8: References................................................................................... 152
9: Annexes....................................................................................... 158
Annexure 1: Guidelines for MSR Programs in PNG Territorial Waters (2003) ..
....................................................................................................158
Annexure 2: State Agencies that have some Responsibilities over Biodiversity
(Provisional)...............................................................................167
Annexure 3: Draft Drafting Instructions.........................................................168
Annexure 4: Report of the Eastern Highlands Provincial Consultative Meeting
(9-10 March 2004 – Goroka) ....................................................175
Annexure 5: Report of the Morobe Provincial Consultative Meeting (11-12
March 2004 – Lae)....................................................................180
Annexure 6: Report of the Manus Provincial Consultative Meeting (15-16
March 2004 – Lorengau)...........................................................184
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List of Policies and Laws Reviewed
1. International
1.1 Treaties
• Cartagena Protocol 2000
• Treaty on Plant Genetic Resources for Food and Agriculture 2001
• Kyoto Protocol to the UNFCCC 1997
• Agreement on Trade-Related Aspects of Intellectual Property 1995
• Agreement for the Implementation of the Provisions of the
UNCLOS of 10 December 1982 Relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks 1995
• Convention to Ban the Importation into Forum Island Countries of
Hazardous and Radioactive Waste and to Control the
Transboundary Movement and Management of Hazardous Waste
within the South Pacific Region 1995
• Agreement Establishing the South Pacific Regional Environment
Program 1993
• Convention on Biological Diversity 1992
• United Nations Framework Convention on Climate Change 1992
• Niue Treaty on Cooperation in Fisheries, Surveillance and Law
Enforcement in the South Pacific Region 1992
• Basel Convention on the Transboundary Movement of Hazardous
Wastes and their Disposal 1989
• Convention for the Prohibition of Fishing with Long Driftnets in
the South Pacific 1989
• Vienna Convention on the Protection of the Ozone Layer and the
Montreal Protocols 1985-87
• Treaty on Fisheries Between the Governments of Certain Pacific
Island Countries and the Government of the United States of
America 1987
• Convention for the Protection of Natural Resources and the
Environment of the South Pacific Region 1986
• Protocol Concerning Cooperation in Combating Pollution
Emergencies in the South Pacific Region 1986
• Protocol for the Prevention of Pollution of the South Pacific
Region by Dumping 1986
• South Pacific Nuclear Free Zone Treaty 1985
• Nauru Agreement Concerning Cooperation in the Management of
Fisheries of Common Interest 1982
• United Nations Convention on the Law of the Sea 1982
• Convention on the Conservation of Migratory Species of Wild
Animals 1979
• South Pacific Forum Fisheries Agency 1979
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• Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage 1971 and Protocol 1976
• Convention on the Conservation of Nature in the South Pacific
1976
• Convention on Civil Liability for Oil Pollution Damage 1969 and
the Protocol 1976
• Convention Relating to the Intervention on the High Seas in Cases
of Oil Pollution Casualties 1973 and the Protocol 1973
• Convention on International Trade in Endangered Species of Wild
Fauna and Flora 1973
• Convention for the Protection of the World Cultural and National
Heritage 1972
• Convention on the Prevention of Marine Pollution by Dumping of
Wastes and other Matter 1972
• Convention on Wetlands of International Importance Especially as
Waterfowl Habitats 1971
• Convention for the Prevention of Pollution of the Sea by Oil 1954-
1971
• Berne Convention for the Protection of Literary and Artistic Works
1971
• Paris Convention for the Protection of Industrial Property 1967
• Convention of the Union for the Protection of New Varieties of
Plants 1961-1991
• International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations, 1961
• International Convention on the Regulation of Whaling 1946
1.2 Other International Documents
• Johannesburg Declaration 2002
• Johannesburg Plan of Implementation 2002
• Millennium Declaration 2000
• Rio Declaration on Environment and Development 1992
• Agenda 21 1992
• Statement of Principles for a Global Consensus on the
Management, Conservation and Sustainable Development of All
Types of Forests 1992
• Stockholm Declaration on the Human Environment 1972
2. Domestic
2.1 Policies
• Sustainable Mining Policy (draft 2003)
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• Eco-Forestry Policy (draft 2003)
• Medium Term Development Strategy 2003-2007 (draft 2003)
• Medium Term Development Strategy 1997-2002
• National Health Plan 2001-2010
• National Agriculture and Livestock Policy 2001-2012
• National Population Policy 2001
• National Transport Plan 2001-2010
• Law and Justice Sector Policy 2001
• Tourism Policy 2001 (draft)
• National Energy Policy Guidelines 2001 (draft)
• Policy Handbook on Petroleum 2001 (draft)
• White Paper on Higher Education, Research, Science and
Technology 1996
• White Paper on the Natural Liquefied Gas 1993
• Forestry Policy 1990
• Environment Policy: A Statement of Principles 1976
2.2 Laws
• Constitution of the Independent State of Papua New Guinea 1975
• Organic Law on Provincial Governments and Local-level
Governments 1995
• Organic Law on National and Local-level Government Elections
1997
• Organic Law on the Integrity of Political Parties and Candidates
2001
• HIV/AIDS Management and Prevention Act 2003
• Kokonas Indastri Koporesen Act 2002
• Environment Act 2000
• Papua New Guinea Science and Technology Council Act 1992
• National Institute of Standards and Industrial Technology Act 1993
• Medicine and Cosmetics Act 1999
• Fisheries Management Act 1998
• Oil and Gas Act 1998
• International Trade (Fauna and Flora) (Amendment) Act 2003
• National Health Administration Act 1997
• Public Health Act.
• Mining Act 1992
• National Parks Act
• Conservation Areas Act
• Fisheries (Torres Strait Protected Zone) Act
• Physical Planning Act 1989
• Dumping of Wastes at Sea Act
• Prevention of Dumping of Wastes at Sea Act
• Forestry Act 1991
• Land Dispute Settlement Act
xii

• Fauna (Protection and Control) Act
• National Seas Act
• Civil Aviation Act 2000
• National Road Safety Council Act 1997
• Copyright and Neighbouring Rights Act 2000
• Trade Marks Act
• National Agriculture Research Institute Act 1996
• Income Tax Act
• Land Act 1996
• Coffee Industry Corporation (Statutory Functions and Powers) Act
1991
• Cocoa Act 1981
• Copra Act
• Criminal Code Act 1974
• Divine Word University 1999
• Crocodile Trade (Protection) Act 1974
• Dangerous Drugs Act 1952
• Institute of Medical Research Act 1967
• Local-level Governments Administration Act 1997
• National Agriculture, Quarantine and Inspection Authority Act
1997
• National Maritime Safety Authority Act 2003
• National Roads Authority Act 2003
• Oil Palm Industry Corporation Act 1992
• Pacific Adventist University Act 1997
• Papua New Guinea University of Technology Act 1986
• Plant Disease and Control Act 1953
• Patents and Industrial Designs Act 2000
• Public Hospitals Act 1996
• Spice Industry Act 1989
• Poisons and Dangerous Substances Act 1952
• Provincial Governments Administration Act 1997
• University of Goroka Act1997
• University of Papua New Guinea Act
• University of Vudal Act 1997
• National Narcotics Control Board Act 1992
• National Aids Council Act 1997
xiii

Acronyms
ABS
AIA
APEC
BAA
BAS
BBSA
CAMC
CBD
CDM
CITES
DEC
EEZ
EIA
FAO
FBR
FFA
FMA
FRI
GDI
GEM
GDP
GM
GNP
HDI
IMR
IPPC
IPR
JPOI
LMO
MEA
MRDC
MSG
MSGTA
MSR
MSRC
MTA
MTDS
NARI
NBSAP
PBA
PBR
PGRFA
PINBio
PIC
PNG
PPA
PRS
Access Benefit Sharing
Advanced Informed Agreement
Asia Pacific Economic Community
Biodiversity Access Agreement
Biodiversity Access Statement
Biodiversity Benefit Sharing Agreement
Conservation Area Management Committee
Convention on Biological Diversity
Clean Development Mechanism
Convention on International Trade in Endangered Species
Department of Environment and Conservation
Exclusive Economic Zone
Environmental Impact Assessment
Food and Agriculture Organization
Farmer Breeders’ Rights
Forum Fisheries Agency
Forest Management Agreement
Forest Research Institute
Gender Development Index
Gender Empowerment Measure
Gross Domestic Product
Genetically Modified
Gross National Product
Human Development Index
Institute of Medical Research
International Plant Protection Convention
Intellectual Property Rights
Johannesburg Plan of Implementation
Living Modified Organism
Multilateral Environmental Agreement
Mineral Resources Development Corporation
Melanesian Spearhead Group
Melanesian Spearhead Group Trade Agreement
Marine Scientific Research
Marine Scientific Research Committee
Material Transfer Agreement
Medium Term Development Strategy
National Agriculture Research Institute
National Biodiversity Strategy and Action Plan
Papua New Guinea Biodiversity Authority
Plant Breeders’ Rights
Plant Genetic Resources for Food and Agriculture
Papua New Guinea Institute of Biodiversity
Prior Informed Consent
Papua New Guinea
Poverty Participatory Assessment
Poverty Reduction Strategy
xiv

SBSTTA
STD
UNCED
UNCLOS
UNCHE
UNFCCC
UoG
UPOV
WMA
WSSD
WTO
Subsidiary Body on Scientific, Technical and Technological Advice
Sexually Transmitted Diseases
United Nations Conference on Environment and Development
United Nations Convention on the Law of the Sea
United Nations Conference on the Human Environment
United Nations Framework Convention on Climate Change
University of Goroka
International Convention for the Protection of New Varieties of Plants
Wildlife Management Area
World Summit on Sustainable Development
World Trade Organization
xv

Executive Summary
Overview
Papua New Guinea (PNG) has a very rich and unique biodiversity. The country’s
biodiversity is located largely on customary land which consist of 97% of the total
land mass of the country. Over the years, this biodiversity has been threatened and
there are some estimates that many of the country’s endemic biological species are
being threatened with extinction. There is presently no firm national data indicating
the total number of biological species in the country. Whatever biological data that is
available is being held by different organizations in different parts of the country. The
total economic and social value of these biological resources is also presently
unknown.
In the light of this diabolical situation the government established the Papua New
Guinea Institute of Biodiversity (PINBio) through a National Executive Council
decision in 1998. The institution was tasked with the primary aim of establishing a
conservation based industry through appropriate research and development programs.
Over the years PINBio has evolved into an institutional creature with an expanded
mandate to deal with biodiversity matters of national significance.
PINBio has been able to develop nine programs which it coordinates through a
Technical Steering Committee and the Interim Board of the Institute. These nine
programs are implemented through the collaboration of various State and nongovernmental
organizations. The implementation of these programs overlaps and
even succinctly impinges on some of the laws that create these very institutions. One
of the salient goals of this project is therefore, to identify the relevant laws and
establish which of these laws do impact on the functions of PINBio.
Aims and Objectives of the Review
The volume and nature of work PINBio has assumed over the years has ignited
several issues which touch at the heart of the operations of PINBio. Some of these
burning issues are: (1) Should PINBio be given a proper legal mandate to manage,
monitor and implement all the programs it has assumed given their value to national
development; (2) What appropriate structure should be devised for PINBio; (3)
What should be its powers and functions; (4) Who should manage PINBio; and (5)
where will the finances of PINBio come from These are the issues that require close
attention of the government and need to be addressed quickly by PINBio.
There are three key issues which have also impacted on the work of PINBio. These
are: (1) Access to the country’s biological resources; (2) Benefit Sharing from the
commercial development of the country’s biological resources and (3) the protection
of Intellectual Property Right (IPR) over biological inventions. Access to genetic
resources activates another process called the prior informed consent (PIC). When the
1

question of PIC emerges, issues of ownership, status of parties, degree of
relationships of parties, points of entry and a host of other issues arise.
Access and benefit sharing (ABS) is a mechanism which must be in the forefront
before any research and consequently, development of a biological resource is
initiated. Without a strong and flexible mechanism to promote ABS, all the relevant
stakeholders will not benefit equitable from the outcome of the research and
development of genetic resource. The absence of an ABS mechanism will also result
in the exploitation of the people of PNG and their resources. Developing an
appropriate ABS mechanism which is amicable to all the stakeholders is a challenge
that must be firmly addressed by PINBio. IPR on the other hand involves both
territorial and extra-territorial issues. Issues such as: who owns the original biological
species; What is the status of traditional knowledge relating to biological resources;
Who has the IPR Which law will apply to the IPR; are considerations which also
require close scrutiny by the government and PINBio.
These are the shadows which hang over PINBio. The message that emerges through
this paper is that these issues are secondary and are dealt with at best by a formally
recognized institution created by legislative enactment. With the creation of an
institution with a legal mandate, it is then able to amicably address all the secondary
issues such as ABS and IPR.
The current review involved an examination of the relevant policies and pieces of
legislation that have a direct or indirect bearing on biodiversity in PNG. There are
four major objectives of the review.
1. Ascertain whether the current policy and legal framework adequately caters
for access to the country’s rich biological resources for research and
development;
2. Ascertain whether the current policy and legal framework adequately
provide for access benefit sharing from the development of the country’s
biological resources;
3. Ascertain whether the current policy and legal framework adequately
provide for the protection of intellectual property rights relating to research
and development of biological resources; and
4. Advise whether or not PINBio should be given a more definite legal status.
One of the principal recommendations that emerges from the current exercise is that:
a piece of legislation should be enacted to create a biodiversity institute and to
also cover biodiversity conservation and sustainable use.
Methodology
The project involved the review of all relevant national policies and laws relating to
biodiversity, its protection and sustainable use. Without a methodology, the review
would have transcended into a quagmire. For the ease of PINBio and to achieve the
goals of the project the following methodology was adopted. First, the country’s
biological background is postulated to appreciate the status of the country’s
biodiversity and the important role it plays in the lives of the peoples of PNG and the
2

country generally. Second, the international scenario is presented to highlight the
international community’s position on biodiversity protection and sustainable use.
Third, the country’s policy and law on biodiversity is assessed to establish the
linkages between law and policy on biodiversity. Finally, the paper focuses on a
specific aspect of biodiversity - research and development.
Structure of the Report
The paper is divided into four parts. Part 1 contains the Introduction. Part 2 contains a
discussion on the international legal and policy framework on biodiversity protection
and sustainable use. The review of the international framework sets the setting for
Part 3 which is focused on the domestic policy framework and Part 4 which deals
with the domestic law on biodiversity. Issues relating to research and development of
biological resources are contained in Part 5. Part 6 is devoted to PINBio and its
programs. Part 7 of the paper contains the Conclusions and Recommendations. Part 8
contains a list of all the reference materials used in this work and Part 9 contains
several annexes including the three Provincial Consultative Reports.
Results
The project involved the review of both international and domestic policy and law on
biodiversity. The scope of the review also covered a discussion on the law relating to
research and development of biological diversity, and the work of PINBio. The results
of the review of these specific fields of review are presented below.
1. International Biodiversity Policy and Law
The review reveals that at the international level concerted effort is
being made to protect the global biodiversity and promote its
sustainable use. Several treaties and strategies have been adopted at the
international level to deal with certain components of biodiversity.
However, with the adoption of the Convention on Biological Diversity
(CBD) attempts are being made at the international level to integrate
different international initiatives under the various multilateral
environmental treaties (MEA) aimed at biodiversity protection and
sustainable use.
The international action on biodiversity protection and sustainable use
is unfortunately, not being matched at the regional level. At the
regional level, the South Pacific region continues to focus its attention
more on marine biodiversity and pollution – its traditional mandate. A
serious shift from this narrow focus to a more holistic approach is
warranted at the regional level.
3

2. Domestic Biodiversity Policy
The review of PNG’s national policies and their impact on biodiversity
shows that the country is lagging behind in implementing its
international obligations under the MEAs and particularly the
Convention on Biological Diversity (CBD). Two types of policies were
reviewed. Those that are standing national policies and those in the
draft form. The general conclusion is that there is no specific national
biodiversity policy that can provide guidance to the development of the
country’s biological resources. There are several policies which target
specific components of biodiversity. These include the Forestry Policy
1990; the National Agriculture and Livestock Policy 2001- 2012; the
draft Eco-Forestry Policy 2003; the draft Sustainable Mining Policy
2003 and the draft Medium Term Development Strategy 2003-2007
(MTDS). These policies have a narrow focus and thus, do not
adequately cater for general principles of biodiversity conservation and
sustainable use. Some of these policies do not provide a clear linkage
between biodiversity conservation and sustainable use and national
development. There are also no transparent linkages between these
different policies and their contribution to the sustainable development
of PNG.
The review also highlights a deficiency which has plagued the country
since the colonial era – sectoral approach to national development!
Even the last national development plan - the MTDS 1997-2002, failed
to achieve its goals and the current MTDS 2003-2007 which is still
being developed would follow the same path if serious amendments
are not made to the draft. This narrow pathway to development has
resulted in the failure of numerous past and present national
development initiatives. The key is to develop national development
plans which embrace all sectoral issues in a consistent, tangible and
transparent manner. This will require a strong commitment by the
government and its agents to make a paradigm shift.
3. PNG Biodiversity Law
The legislative review covered a wide field, encompassing laws
relating to biodiversity protection to research and development. In the
area of general biodiversity protection and sustainable use, there is
currently no law in place to cater for the subject. There are three laws
which do have a strong bearing on biodiversity protection, but they
lack the necessary provisions to deal with issues of sustainable use.
These laws are: (1) the National Parks Act; (2) the Conservation Areas
Act and (3) the Fauna (Protection and Control) Act. The Conservation
Areas Act would be the most appropriate legislation for the protection
of biodiversity. Rules on sustainable use of biological resources can be
tested in conservation areas due to the fact that it will now be
implemented for the first time since its enactment in 1978. The
weakness of the National Parks Act is that it applies to State land.
4

Customary land can fall within the ambit of the legislation, but only
through a complex procedure permitted under the Land Act 1996. The
focus of the Fauna (Protection and Control) Act is more restricted –
only to fauna. However, biodiversity is protected under the guise of the
protection of fauna habitats: sanctuaries; protected areas and wildlife
management areas (WMA).
Several laws do provide opportunities for the creation of protected
areas which can encompass general biodiversity protection and
sustainable use. These laws include the Land Act 1996, the Mining Act
1992, Forestry Act 1991, the Oil and Gas Act 1998, the Fisheries
Management Act 1998 and the Environment Act 2000. These laws
provide key provisions which can be harnessed to establish new
protected areas. A careful implementation of these crucial provisions
can enable the prohibition of large scale natural resources development
projects in these areas.
Generally, there has been very little reform in the law on the subject of
biodiversity conservation and sustainable use. Some of the key
environmental statutes were enacted before 1992 – the year in which
biodiversity was elevated to the international landscape, and have not
been amended to reflect the internationally accepted principles of
biodiversity use and management.
4. Biodiversity Research and Development in PNG
In terms of research and development the basic conclusion is that apart
from a few specifically designated organisations performing a special
task relating to research and development of special biological species,
the laws are silent on biodiversity conservation and sustainable use.
Many of the laws were enacted before the CBD and thus, do not
embrace many of the principles of the treaty.
5. Future of PINBio
PINBio was established in 1998 by the government to address the
issues of biodiversity conservation and sustainable use. Over the years,
PINBio has assumed a lot more responsibilities and encountered a
number of critical issues which pose a challenge to its future existence.
The survival of PINBio and its programs depend on it being given a
formal legislative mandate. The introduction of a legislative mandate
would provide an opportunity to also transform DEC and some of the
important pieces of legislation which have an impact on biodiversity
protection identified in this paper.
Generally the results of the review are: (1) the current policy framework does not
adequately embrace biodiversity issues; (2) the present legal framework lacks the
tenacity to embrace significant biodiversity issues; (3) PINBio does not have the
5

capacity to handle all the biodiversity issues affecting the country and (4) there are no
adequate legislative mechanisms dealing with ABS and IPR issues.
Recommendations
Three specific recommendations emerge from the policy and legislative review.
Recommendation 1
It is strongly recommended that an institution to be called the “Papua New
Guinea Biodiversity Authority” (PBA) be established through a legislative
enactment as soon as is practicable. The PBA will be a hybrid of the
Conservation Division of DEC and PINBio. Its principal mandate will be to
deal with all biodiversity issues, particularly the protection, research and
development of biological resources.
In light of this recommendation a draft Drafting Instruction is included for
consideration by PINBio and the government.
Recommendation 2
It is recommended that issues relating to ABS, IPR and other relevant
biodiversity issues be left to the PBA to deal with when it is established. In the
interim, the prevailing procedures and rules relating to access and benefit
sharing and IPR promulgated by PINBio and DEC continue to apply.
Recommendation 3
It is recommended that a national workshop be held soon to discuss certain
aspects of this paper and especially Recommendation 1. The national
workshop should involve representatives of relevant stakeholders such as:
resource owners; State agencies; provincial and local-level governments;
research organizations; industry and non-governmental organizations.
There are strong indications that given the country’s weak policy and legal framework
on biodiversity, issues of bio-piracy and loss of potential economic investments and
gains pose a serious concern for the development of the country. It is therefore,
imperative on the government and PINBio to move speedily on these
recommendations to ensure the protection of the country’s biodiversity and also to
obtain maximum benefits from positive results of biological research and
development.
6

1: Introduction
1.1 Challenges to Papua New Guinea’s Biodiversity
Papua New Guinea is a tropical country which lies wholly within the southern tropics
north of Australia and comprises the eastern half of the island of New Guinea (the
western half being Iran Jaya, a province of the Republic of Indonesia). The total land
mass of PNG is 462 840 square km which consist of 0.5 percent beaches and ridges,
11 per cent swamps, 15 percent lowlands; 43 percent foothills, mountains to 1000m
above sea level; 25 per cent mountains 1000-3000m and 4% above 3000m. Natural
forest covers almost 77 percent of the total land area.
The country contains about 5-7 percent of the world’s species of plants and terrestrial
live forms. It is estimated that PNG has:
• 20, 000 plant species
• 90,000 fungi
• 300,000 insects
• 600 fish species
• 800 species of corals
• 304 mammals species
• 733 species of birds
• 298 species of reptiles
• 228 amphibian species
• 45 types of forest/wetlands.
The country has the world’s largest and smallest parrots, the largest doves, the largest
lizard, some of the smallest frogs, the largest butterflies and moths, some of the
largest stick insects, the widest-headed (stalk eyed) flies, the tallest tropical trees, the
largest rhododendron flowers, the richest mangrove and sea grass floras which are
unique and fascinating. PNG occupies half of the world’s largest and highest tropical
island, has 5,000 lakes, extensive river systems, 5,000 miles of mangrove swamps
(1.5 percent of land area), lagoons, wetlands, coral reefs and atolls plus island
archipelagos. PNG’s jurisdiction extends over 8,000 square kilometres of ocean,
including 40,000 square kilometres of coral reefs. This diverse biodiversity is unique
and endemic to PNG. A lot of work remains to be done to scientifically identify and
record the biological resources of PNG.
It is estimated that there is approximately 60 percent of plants which are endemic to
PNG. There are about 500 species of food crops, 30 root and staple crops, 43 nut
types, 100 fruits and 60 leafy green vegetables. There are a number of plants which
are used by Papua New Guineans for different purposes. Some of the plants and their
uses are shown in Table 1.
The PNG environment is unique in many ways as it is very rich in biodiversity. The
importance of PNG’s biological diversity to the global ecosystem and the stability of
the global environment cannot be underestimated. It is generally accepted that the
7

socio-economic and political circumstances of the country is a threat to this rich
biodiversity. This has resulted in the country being declared a “hot-spot” of biological
diversity.
Table 1: Some of the Plant Uses
Use
Numbers
Food 229
Ash salt 17
Medicines 252
Narcotics, stimulants, intoxicants 10
House and Shelter 100
Canoes and Rafts 43
Tools and Weapons 73
Hunting and Fishing 44
String and Bark Cloth 31
Ropes used in House and Fence Construction 31
Personal Ornaments 75
Ritual and Magic 78
Art 50
Food Preparation 30
In PNG these biological species are found primarily on customary land which is
owned by customary landholders who are grouped into clans and tribes. These
customary landholders own 97% of the land while the State owns only about 3
percent. The world’s 5-7% of biological species is therefore, held on customary land.
The challenge for PNG is developing an appropriate strategy to enable easy access to
the biodiversity located on customary land and at the same time ensure that customary
landowners gain maximum benefit from the sustainable use of the biological
resources. The formulation of such a strategy would require innovative ideas and firm
action from all stakeholders.
1.2 The Dilemma of Development
The country’s rich biodiversity has been and continues to be threatened from various
fronts. These include large-scale natural resources development projects such as
mining, logging and fishing; large-scale agricultural projects such as oil palm, coca
and coconut plantations; natural disasters such as earthquake, floods, droughts and
volcanic eruptions; and unsustainable village farming methods such as slash and burn.
These various activities adversely affect the environment and the biodiversity of the
country. The two main activities which have caused a lot more controversy are: large
scale mining and logging projects, and large-scale agricultural projects such as oil
palm.
Given the relative population of the country and its rich diversity and natural
resources, how has the country performed economically, socially and
environmentally The question is best answered by considering the various economic,
social and environmental indicators provided below. The indicators in Table 2 show
8

that since independence in 1975 PNG has not performed very well over the last 29
years.
Table 2:
Some Economic, Social and Environmental Indicators for
Papua New Guinea
Indicator Unit Year Measure
Human Development
Index (HDI)
No unit 1999 0.534
rank =
122/162
Population size million 2000 5.1
Population growth
% 1990- 2.7
rate
2000
Population density Persons per 1000 hectares 2000 110
Urbanization % 1999 17.1
Adult literacy % age group > 15 years 1999
2002
45 / 76 *
56
Poverty rate
Measured as human
1998 43.7
Poverty rate
deprivation index
Measured as human poverty
index
1999 36.2
rank =
60/90
Infant mortality rate Per 1,000 live births 1999 79
Total fertility rate Births per woman 2000 4.8
Life expectancy at birth Years 1999 56.2
Contraceptive prevalence Any method % 1990-98 26
Women in Government % at all levels 1997 1.8
Gender-related
No unit (comparable with 1999 0.503
Development Index
HDI)
GNP per capita US$ 2000 264
Total debt service as a % GDP % 1999 5.9
Public debt as a % GDP % 2001 70
Average Annual
Growth Rate of GDP
% 1992-2000
1995-2000
3.2
1.2
Agriculture as a % GDP % 2000 28
Industry as a % GDP % 2000 37
Services as a % GDP % 2000 35
Population without
% 1996 76
access to safe water
Energy consumption Petajoules/commercial +
1995 96
traditional
Fertiliser consumption
Kg ha -1 a -1 1994 30
per cropping area
Public Expenditure on Health % GDP 1997 5.8
Public Expenditure on Education % GDP 1997 9.7
Military expenditure % GDP 1999 1.0
Food Intake
Daily calories supply per 1999 2974
capita (kilocalories)
Number of doctors Number of people per doctor 1990-93 12754
HIV/AIDS AIDs cases per 1,000 1999 2.2
Carbon dioxide emissions Million tonnes 1996 2.400
Greenhouse Index Share of global CO 2 emissions 1996 0
9

Total freshwater
Cubic metres per capita 1987-95 28
withdrawals annually
Deforestation
Average annual rate of
1990-95 0.40
deforestation
National Protected Areas % all protected areas – IUCN 1996 0.1
categories I-V of total land
area
National Protected Areas % by PNG criteria 1997 3.0
% mammals at risk/
Number at risk over number of 1990s 26.7
threatened
species known
% birds at risk/
Number at risk over number of 1990s 4.8
threatened
species known
% higher plants at
risk/threatened
Number at risk over number of
species known
1990s 1.0
Source: Papua New Guinea’s Report to the WSSD
The figures in Table 2 reveal that there are many social and economic woes which
affect the country now and in the future. The data shows that the country has an
unsustainable population growth with approximately 45% of the population belonging
to the category of young dependent age group of 0-14 years. Given the continued
patterns and trends of fertility and mortality, the population of PNG is expected to reach
10.2 million by the year 2020. The young age structure means that the population will
continue to grow long after it reaches replacement level of fertility.
By international standards PNG’s literacy rate is well below 50%. The low rate of
literacy, participation and retention remain a critical concern. Only 45% of the
population is literate compared to an average of 85% for the other Pacific Island
countries with the female literacy rate (40.3%) which is lower than males (49.7%).
This situation is exacerbated by the fact that in PNG males are given more priority
and preference than their female counterparts.
Despite their numerical strength, women, children and youth have not been given
adequate opportunities to participate meaningfully in the development process. This
has negatively impacted on the economy. In many traditional societies, although
women play significant traditional roles in resource management, they are restrained
by cultural and even formal barriers from actively participating in development
programs. Based on the measures of gender development index (GDI) and the gender
empowerment measure (GEM), the indicators show the GDI at 0.363 and the GEM at
0.177, while the human development index (HDI) and human deprivation index (HDI)
showed 0.363 and 43.7 respectively. In 2001 a Poverty Participatory Assessment
(PPA) revealed that there is widespread inequality between males and females in
participation levels and active roles in the development process. Other measures
covering women and other major groups in the areas of educational attainment,
earning power, employment, longevity and political representation revealed similar
levels of disparity.
Global statistics show that PNG ranks among the bottom ten countries of the world for
access to safe drinking water. Furthermore, only half of the country’s population has
access to adequate sanitation facilities. This situation has a significant bearing on the
general health status of the population and the context in which the HIV epidemic is
spreading. Achieving a quality healthy status can also be impeded by various factors.
10

The combined effects of poor nutrition, anaemia, malaria and respiratory diseases
weaken the health status of much of the population. The situation increases an
individual’s overall vulnerability to the effects of HIV/AIDS because of an already
weakened immune system. With a high population concentration of people in the young
age groups, vulnerability to sexually infectious diseases and HIV/AIDS is also expected
to be high.
At the heart of the different national issues affecting PNG is the problem of poverty.
Poverty affects all people at all levels both in the rural and urban areas. The
magnitude of the problem is felt differently by the various groups of people in
different cross-sections of the community. For many years poverty was not
acknowledged as a problem in PNG. This view has changed dramatically over the last
few years. This shift in position was reflected in the MTDS 1997 - 2002, which
included a Poverty Reduction Strategy (PRS). The draft MTDS 2003-2007 also
adopts poverty reduction as one of the core development strategy of the government
over the next five years. The draft MTDS acknowledges the reduction of poverty as a
long term-goal of the government and to meet the Millennium Development Goals of
the United Nations approved in 2000.
The existence of poverty signals that there are gaps in the distribution of development
benefits to different areas and groups of people within the country. The decrease in
the standard of living and inaccessibility to services and opportunities indicates low
living standards of people and the prevailing degrading socio-economic and
environmental conditions. The PPA also revealed that in measuring the existence,
nature, characteristics, causes, effects and perceptions of poverty in the country, there
was a misunderstanding of the term “poverty” in PNG. In conventional terms, poverty
is a condition of lack and chronic shortage of food supply, shelter and water. Poverty
has many faces. In PNG poverty manifests itself in: (1) hunger; (2) unemployment
and lack of a permanent source of income; (3) unreliable and poor infrastructure; (4)
poor accessibility and low quality of services especially in education and health; (5)
lack of adequate shelter; (6) lack of safe and clean drinking water and (7)
disempowerment.
The main causes of poverty are attributed to the following factors: (1) inadequate
government services provided to rural areas; (2) mismanagement and corruption in
public offices at all levels of government; (3) lack of implementation of government
policies; (4) misappropriation and mismanagement of government resources; (5)
disempowerment of civic society and disadvantaged groups particularly women and
youth; and (6) narrow emphasis on development focusing primarily on a small
minority of the population thus, preventing the majority from full and active
participation.
Today there are serious social, economic and environmental problems confronting
PNG. These issues are complicated and without appropriate remedial strategies, they
have hindered the sustainable development of the country since Independence. These
problems have plagued the country for almost three decades plunging PNG into a
national development crisis.
The natural resources sector, especially minerals, petroleum and gas, timber and
fisheries are traditionally the main revenue earners for the country. They have been
11

able to sustain the country in very difficult economic crises. However, the minerals,
petroleum and gas resources are being depleted and in the near future will be
exhausted. In the case of timber and fisheries, the issue of sustainability will
determine the way these resources are utilized in the future. The future of the mineral,
petroleum and gas looks bleak in the long-term. It is against this backdrop that Papua
New Guineans must aspire to develop innovative strategies to alleviate many of the
social, economic and environmental ills that hamper the sustainable development of
the country.
1.3 Changing the Development Paradigm
The issues of development identified above have clearly influenced the mindset of
successive governments since Independence. There is no contention that issues of
poverty, health, education, sustainable rural development and physical infrastructure
will continue to affect government visions and goals over the years to come. These
are what can be termed as ‘traditional government policy goals and objectives’.
The experiences over the last three decades have shown that the various approaches
adopted by successive governments to tackle these traditional goals do not seem to
have assisted in the achievement of these goals. Some of these approaches such as the
MTDS actually exacerbate the situation. Obviously there is a need to reconsider the
approaches being adopted by the government in achieving its goals. It is suggested
that the time is now ripe for a paradigm shift. But to what, is the question that may be
asked. The answer to this question lies in the very heart of the planning processes
being applied by the government itself.
It is suggested that the government should adopt a long-term development strategy
such as a 20 or 50 years development plan. Such a program would involve strategic
thinking based on a reassessment of the various sectoral programs and clearly
identified goals. The identification of these goals would be based on in-depth analysis
of the root causes of the social, economic and environmental problems of the country.
The approaches that are then designed to tackle these social, economic and
environmental ills must be transparent and clearly shows the nexus between the
cause-intervention-result processes. Countries which have adopted and applied longterm
development plans have seen dramatic growth and clear signs in the alleviation
of their social, economic and environmental problems. Such a long-term development
plan might be considered in the light of what Chapter 8 of Agenda 21 and the
Convention on Biological Diversity (CBD) call the ‘National Sustainable
Development Strategy’ (NSDS). The NSDS would usually contain the short to longterm
development goals of a country with workable and tangible programs for the
achievement of these goals. A NSDS is a holistic development plan and visionary in
its character.
The development of a long-term development plan should also comprise new visions
and achievable goals, and a strong political will to change. This transformation must
target the areas of policy, law and administration (institutional). There are positive
signs that even without a long-term development plan, certain changes have already
occurred in these three main areas. However, this transformation has been slow and
sporadic.
12

The adoption of a long-term development strategy will involve the realignment of ideas.
New and innovative ideas which have long-term beneficial use must be identified and
incorporated into the long-term development strategy or the NSDS. The paradigm shift
will require the support of all the different stakeholders both in government and in the
civil society. Some of these new ideas may include:
• Green trade
The membership of PNG to the WTO and APEC signals PNG’s desire to
become an active participant in the globalization process. Its strong push for
the Melanesian Spearhead Group Trade Agreement (MSGTA) is also
indicative of its position as a major economic player in the MSG and the
South Pacific. Being a member of this new economic order also carries with it
certain responsibilities especially in relation to the removal of protectionism
clauses. The removal of these clauses exposes PNG’s industries to stiff
competition from foreign competitors.
In the context of globalization, PNG must also bear in mind the parallel push
by multilateral organizations to encourage more “green trade”. Green trade
and globalization must go hand in hand. They do not necessarily have to be in
collision. The challenge for PNG is to develop appropriate policy and legal
framework to promote these two goals concurrently.
• Carbon Trade
PNG has done well on the international scene by ratifying a number of treaties
that protect the atmosphere. The three principal treaties that PNG has ratified
are the Vienna Convention on the Protection of the Ozone Layer 1985 and the
Montreal Protocols 1987 and the United Nations Framework Convention on
Climate Change (UNFCCC) 1992 and the Kyoto Protocol 1997, and the Basel
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal 1989.
At the domestic level, PNG has not introduced any specific legislation or
policy relating to the protection of the atmosphere. The scheme of the new
Environment Act 2000 will hopefully indirectly contribute towards the
achievement of this goal.
Under Articles 4 and 12 of the UNFCCC, member countries are required to
submit their country report called “Initial National Communication” which is
an inventory of the country. A group of experts were commissioned to prepare
the country’s position paper for presentation to the UNFCCC Secretariat. This
report entitled “Papua New Guinea Initial National Communication” was
completed and presented to the government in 2000. The report contains
information about the country’s major sources of GHG emissions and
sinks, vulnerability and adaptation options together with necessary
mitigating factors.
The Kyoto Protocol to the UNFCCC is supplementary to the UNFCCC and
contains three mechanisms which can be capitalised by member States to
access financial benefits. For developing countries, only the Clean
Development Mechanism (CDM) is applicable to them. The CDM provides
13

PNG with opportunities for: (1) enhancement of the sustainability of the
country’s forest resources; (2) financial benefits; (3) technology transfer; (4)
capacity building and (5) enhancement of biodiversity protection and
sustainable use.
As a follow-up to the Initial National Communication, the government agreed
to commission a team to assess the implications of the Kyoto Protocol and the
benefits the country can obtain through the carbon exchange mechanism
provided for under the Protocol. Attempts were made in 2001 to commission
this study, but to date not much has been done to effect this study.
• Biodiscovery and Agro-biodiversity
This is probably the biggest challenge for the country. The government has
shown some commitment to these two programs with the establishment of
PINBio in 1998, the introduction of the new Agriculture Policy 2001-2010,
the creation of Vudal Agriculture College as a university in 1997 and the
transformation of the National Agriculture Research Institute. The current
study is a contribution to that process.
However, a more firm commitment by the government is needed to promote
these two areas to enable the country to realize the full potential of these two
programs. The implementation of the recommendations contained in this
paper will reflect the government’s commitment to these two programs and to
sustainable development in the country.
• Environmentally Sound Technologies
PNG is still a long way from developing innovative technologies which are
environmentally friendly. The methods of extraction of natural resources and
the manufacture of materials are based on technologies which are
environmentally unfriendly. There is no serious attempt by the government
and the industry to fund research into new technologies suitable to the PNG
context. There is also very little incentive offered by the government for
private sector research in this area. Collaborative research between different
government agencies and the private sector is very minimal. PNG needs a
strong regulatory framework to promote and support products which are
manufactured or processed by environmentally sound technologies.
The government has however foreseen the development of these new
technologies by providing enabling legal and administrative frameworks
through the Papua New Guinea Science and Technology Council Act 1992;
the National Institute of Standards and Industrial Technology Act 1993 and
the Medicine and Cosmetics Act 1999. The first legislation creates the Science
and Technology Council which will have the power to promote research and
monitor scientific developments in PNG. Unfortunately, the legislation has not
been implemented since its inception in 1993. The second legislation
establishes the National Institute of Standards and Industrial Technology and
also sets out national standards for the development of industrial technologies.
The third legislation provides standards for the development of medicines and
cosmetic products in the country.
14

The government has shown its genuineness in promoting and developing
environmentally sound technologies. The government has to follow through
this commitment with adequate funding and resources for research and
development of these technologies.
• Changing Production and Consumption Patterns
This subject is closely related to environmentally sound technologies. State
agencies such as universities, research institutions such as the National
Research Institute, the National Agricultural Research Institute, and other
relevant organizations such as the Manufactures’ Council must be encouraged
to undertake collaborative research in common fields, so that limited resources
and expertise can be fully utilized to achieve the best results. In this regard,
the government must make it its aim to fully fund new and ongoing research
into new methodologies aimed at reducing poverty, changing production and
consumption patterns and so on. It is suggested that funding to State
educational and research institutions be tied to research areas which are
prioritized by the government. Such research must then be supported with
adequate funding.
These ideas may be new in PNG, but they have been around in the global arena for
years. PNG must refocus its attention to these and other global and regional issues to
make use of opportunities that are available out there to tackle these issues. By
addressing these emerging issues, PNG can use the opportunities to also make
advancement on the traditional policy issues. This integration can best be achieved
through a NSDS or a similar long-term development plan.
1.4 The Challenge
The task of reforming the traditional mindset in PNG to the new development
paradigm will obviously take time. However, it does not mean that Papua New
Guineans should wait for the ‘right time’. The government has already begun the
process of change with the adoption of a number of key policy, legislative and
institutional initiatives. In the policy regime, these initiatives include: (1) the
introduction of the rolling five year MTDS; (2) the National Health Plan 2001-2010;
(3) the National Agriculture Policy 2001-2010; (3) the National Transport Plan 2001-
2010; (4) the National Population Policy 2001; (5) Law and Justice Sector Policy
2001; (6) the Eco-Forestry Policy 2003 (draft) and (7) the Sustainable Mining Policy
2003 (draft).
In the legal field, several pieces of legislation have been enacted by the Parliament
which reflects the government’s desire for change. These include: (1) the Organic
Law on Provincial Governments and Local-level Governments 1995; (2) the Organic
Law on National and Local-level Government Elections 1997; (3) the Organic Law
on the Integrity of Political Parties and Candidates 2001; (4) the Fisheries
Management Act 1998; the Oil and Gas Act 1998; (5) the Environment Act 2000 and
(6) the International Trade (Fauna and Flora) (Amendment) Act 2003.
In the area of institutional reform, again the government has shown some commitment
to change, with the introduction of several programs. These include: (1) the public
15

sector reform program; (2) privatization of some State institutions and the
corporatization of several State agencies; (3) reformation of the provincial
government system under the Organic Law on Provincial Governments and Locallevel
Governments; (4) creating political stability through the Organic Law on
National and Local-level Government Elections and the Organic Law on the Integrity
of Political Parties and Candidates; (4) reorganization of the Department of
Transport and Civil Aviation under the auspices of the National Transport Policy and
(5) strengthening institutions of higher learning with the creation of the University of
Goroka, the Pacific Adventist University and the Vudal University in 1997 and later
the Divine Word University.
There is therefore, a flurry of policy, legislative and administrative activity within the
government system. An important consideration is: what are the underpinnings of
these formulations Are there specific long-term goals that the government hopes to
achieve and in what timeframe Clearly there are timelines provided for the transport,
agriculture and health sectors but are they attainable And what is the relationship
between these different national goals Are there visible linkages between these
policies The MTDS seeks to clarify these linkages, however, experience has shown
that even the aspirations of the government reflected in the MTDS stands in sharp
contrast to some of the national goals.
The challenge is to create a vehicle which should take the lead in addressing many of
these national issues from a holistic perspective. Sectoral approaches do not seem to
be conducive to PNG. A broad-based approach is being promulgated in this paper. A
new and innovative institution which looks at all these issues and develops strategies
from an interdisciplinary perspective to deal with these issues is warranted.
But developing such an institution must be based on a logical and credible premise.
The government believes that this can be found in the country’s rich and unique
biodiversity. The country’s biodiversity has the potential to create income generating
opportunities for both the government and its people now and into the future. The
challenge then for PNG is to put in place appropriate and workable policies,
legal and institutional frameworks to enable PNG to harness its biodiversity and
natural resources to achieve the best results possible without adversely affecting
their carrying capacity. This new paradigm must focus on research in biodiversity
and the development of the country’s rich biological resources. New uses of
biological resources must therefore, be identified and their value enhanced through
innovative technology.
This paradigm shift should be complemented with:
• The effective implementation of the law;
• The reorganization of institutions through legislation where necessary to
reduce excesses in resources and eliminate duplicity of roles and functions;
• The strengthening of effective operational management and implementation
processes through the law to ensure job security and remove political
interferences;
• The recruitment and training of personnel to enhance their capacity;
• The provision of material means and equipment; and
• The assignation of appropriate budgets.
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When these matters are taken into account by the government and other relevant
stakeholders in their planning and implementation processes, PNG will succeed in
achieving the protection and sustainable use of its biological resources.
The government has acknowledged this challenge by establishing PINBio in 1998.
This institution has been given the mandate to explore ways and develop cutting-edge
strategies to harness the huge potential of the country’s biodiversity to meaningfully
contribute to the sustainable development of PNG. Since the inception of PINBio in
1998, the institute has encountered several significant issues that need to be seriously
addressed to provide the direction for its future operations. Some of the issues which
have posed a challenge to PINBio include:
• Status of PNG’s biodiversity What is the current status of the country’s
biodiversity
• Status of PINBio Does the current framework provide adequate strength,
clarity and certainty to the functionality of PINBio
• Functions of PINBio What are the powers and functions of PINBio What is
its role and purpose
• Structure of PINBio Is the current institutional structure of the institute
appropriate and workable Is it fostering the attainment of the goals and
visions of PINBio and the government
• Access to the country’s biological resources Are there rules, procedures and
guidelines regulating access to the country’s biological resources If there are,
are they relevant and appropriate Are there rules about prior informed
consent (PIC) What would be an appropriate model
• Access and benefit sharing (ABS) What are the benefits Who gets what and
how much
• Intellectual property rights (IPR) over biological inventions What IPR should
be protected How should it be protected Who should have the IPR What
are the benefits of IPR
These are critical issues which must be dealt with to enable PNG to sustainably use its
biological resources. In the final analysis, two principal issues need to be tackled. The
first is: who should regulate research in the country’s biodiversity and develop its
biological resources. And second: what rules and regulations or guidelines should be
developed to access these biological resources. Access to these biological resources
also attracts issues of ABS and IPR. How PNG develops appropriate strategies in
addressing these issues require innovative ideas and taking bold decisions in dealing
with these issues.
This paper seeks to provide some guidance and offers some solutions to some of the
issues raised above and contributes to the process of developing appropriate strategies
for the protection and sustainable use of PNG’s biodiversity.
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2: International Biodiversity Policy and Law
This part of the paper provides an overview of the existing international legal
framework on biological diversity. This aspect of the review provides an insight into
the prevailing issues and factors that will affect the manner in which PNG adopts an
appropriate legal and policy framework to capture and harnesses these issues. Several
MEAs have been identified and the relevant provisions relating to biodiversity
protection and sustainable use are considered in some detail.
2.1 Policy Framework on Biodiversity
The international policy framework on biodiversity can be traced to the Stockholm
Declaration of 1972. The declaration was the product of an international conference
focused on the human environment. The United Nations Conference on the Human
Environment (UNCHE) was held from 5 th to 11 th June, 1972. At the end of the
conference, a number of resolutions were adopted by the delegates. The two
prominent documents were the Stockholm Declaration on the Human Environment
containing 26 principles and the Action Plan containing 109 recommendations.
The main themes of the Stockholm Declaration were: the right to economic
development of States; individual and collective responsibility towards environmental
protection; population control and poverty alleviation. In addressing these issues, the
Stockholm principles were formulated to give meaning to these themes. Principle 1
proclaimed that environmental protection is linked to human rights norms. Principles
2-7 contained the core of the Declaration declaring that “not only oil and minerals, but
also air, water, earth, plants and animals as well, which are representative samples of
the natural ecosystems, are resources of the globe”. Principles 6 and 7 specifically
targeted pollution control. Principles 8-11 dealt with the synergies of social
development, economic development and environmental management. Principles 12-
17 were concerned with policies on environmental management. Principles 18-20
related to scientific knowledge, research and environmental awareness. Finally
principles 21-26 dealt with the development of international law in the area of
environment and development. Apart from principles 21-24, the rest of the principles
were framed in non-legal terms.
It was envisioned that the Stockholm Declaration would provide the blueprint for
environmental management and economic and social development. Twenty years
later at the Rio Conference on Environment and Development (UNCED) in 1992, the
global community agreed that they had failed to contain environmental degradation,
and in fact the situation was far worse than in 1972. At the UNCED, five significant
documents were adopted by the global community. These included three non-binding
instruments, namely: the Rio Declaration on Environment and Development, Agenda
21, and the Statement of Principles for a Global Consensus on the Management,
Conservation, and Sustainable Development of All Types of Forests (the Statement of
Forest Principles); and two treaties, namely, the Convention on Biological Diversity
(CBD) and the Framework Convention on Climate Change (UNFCCC).
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The Rio Declaration contains 27 principles. The Rio Declaration reaffirmed the
principles of Stockholm, but with a new philosophy and approach. The Rio
Declaration introduced the mandate for sustainable development as the basis for
global, national, and local action. The Rio Declaration also represented a series of
compromises between developed and developing countries and a balance between
objectives of environmental protection and economic development. The principles
can be grouped into five classifications. These are:
• Policy issues (Principles 1, 3, 5, 8 and 15);
• Legislation and regulation (Principles 11, 13, 16 and 17);
• Decision-making (Principles 4, 10, 20, 21 and 22);
• Transboundary issues (Principles 2, 14, 18 and 19); and
• International action (Principles 6, 7, 9, 12, 23, 24, 25, 26 and 27).
The Rio Declaration also covers issues of inter-generational equity, common but
differentiated responsibility, women, youth, indigenous and other local communities,
the role of non-state actors in achieving sustainable development, financial and
technological responsibilities.
Chapter 15 of Agenda 21 is relevant to biodiversity protection and sustainable use.
Chapter 15 recognizes the importance of biodiversity to sustain human lives and calls
on States to:
• Develop national strategies for the conservation of biological diversity and
the sustainable use of biological resources;
• Integrate strategies for the conservation of biological diversity and the
sustainable use of biological resources into national development plans;
• Take appropriate measures for the fair and equitable sharing of benefits
derived from research and development and use of biological and genetic
resources, including biotechnology, between the sources of those resources
and those who use them;
• Carry out country studies, as appropriate, on the conservation of biological
diversity and sustainable use of biological resources, including analyses of
relevant costs and benefits, with particular reference to socio-economics
aspects;
• Recognizing and fostering traditional methods and the knowledge of
indigenous people and their communities, emphasising the particular role
of women, relevant to the conservation of biological diversity and
sustainable use of biological resources, and ensure the opportunity for the
participation of those groups in the economic and commercial benefits
derived from the use of such traditional methods and knowledge; and
• Implement mechanisms for the improvement, generation, development and
sustainable use of biotechnology and its safe transfer, particularly to
developing countries, taking account of the potential contribution of
biotechnology to the conservation of biological diversity and the
sustainable use of biological resources.
Several member States have adopted national biodiversity strategies called “National
Biodiversity Strategy and Action Plan” (NBSAP) to guide national development
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programs so that biodiversity issues are amicably addressed by these programs. Many
countries including PNG have not yet developed their NBSAPs.
After taking a stock-take of the international response to sustainable development, the
global community again agreed in 2000 that, although some progress was being made
and even some countries were succeeding in addressing issues of sustainable
development, still more innovative strategies were required to improve the livelihoods
of the peoples of the world, especially those in the developing countries. The leaders
agreed to adopt the Millennium Declaration which is a reaffirmation of commitment
by members to the United Nations and its goals. A key element of the Millennium
Declaration in relation to biodiversity is Part IV which re-emphasises the
commitment of the global community to the protection of the environment. Article 23
which falls under Part IV is instructive. It states:
We resolve therefore to adopt in all our environmental actions a new ethic of
conservation and stewardship and as first steps; we resolve:
1. to make every effort to ensure the entry into force of the Kyoto Protocol,
preferably by the tenth anniversary of the United Nations Conference on
Environment and Development in 2002, and to embark on the required
reduction emissions of greenhouse gases;
2. to intensify our collective efforts for the management, conservation and
sustainable development of all types of forests;
3. to press for the full implementation of the Convention on Biological
Diversity and the Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, particularly in
Africa;
4. to stop unsustainable exploitation of water resources by developing water
management strategies at the regional, national and local levels, which
promote both equitable access and adequate supplies;
5. to intensify cooperation to reduce the number and effects of natural and
man-made disasters; and
6. to ensure free access to information on human genome sequence.
Two years later the leaders of the world met again in Johannesburg, South Africa to
address the issue of environment and development and especially on sustainable
development. The meeting called the ‘World Summit on Sustainable Development’
(WSSD) resulted in the adoption of two important documents. These were: (1) the
Johannesburg Declaration and (2) the Johannesburg Plan of Implementation (JPOI).
The Johannesburg Declaration builds and expands on the Stockholm Declaration and
the Rio Declaration. The Johannesburg Declaration contains 37 principles which are
divided into six different components.
A wide range of commitments are spread across the document. Some of these include:
• Strengthening partnerships to achieve sustainable development (Principles 16,
26, 27 and 29);
• Promotion of dialogue and cooperation (Principle 17);
• Promoting and strengthening efforts in improving the livelihood of the poor
and the biodiversity (Principle 18);
• Eliminating barriers to sustainable development (Principle 19);
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• Sharing of resources to eradicate poverty and sustainable development
(Principle 21);
• Support for indigenous communities in their efforts in promoting sustainable
development (Principle 25) and;
• Good governance for the effective implementation of sustainable development
(Principle 30).
To provide the operational framework for the Johannesburg Declaration, the
delegates at the WSSD adopted the JPOI. The JPOI is similar to Agenda 21 adopted at
Rio and is an extension of Agenda 21 and the Millennium Declaration. The JPOI
contains discussions on a series of issues which are critical to sustainable
development and also provides strategies and sets a number of targets, and timetables
for the implementation of the JPOI. For instance, by 2015 it is envisioned that global
poverty will be reduced by 50%. Also in the same period, the number of people who
are unable to have access to clean water must be halved. The strategies adopted by the
JPOI in addressing poverty (Part II), natural resources (Part IV), globalization (Part
V), health (Part VI) and small-island developing States (Part VII) are all aimed at
improving the social and economic livelihood of the people and giving operational
strategies for the attainment of the Millennium Declaration goals.
The protection and sustainable use of biological diversity is given prominence in
Chapter IV of the JPOI. This chapter sets out a series of strategies aimed at tackling a
number of critical issues that have an impact on the people and their natural resources.
Some of the topics covered by Chapter V include; water resources, the marine
environment, disasters, pollution, climate change, food security, desertification,
mountain ecosystems, sustainable tourism, biodiversity and forests.
The JPOI envisages that by 2010, the rate of biodiversity loss would be significantly
reduced. Some of the strategies aimed at achieving this goal include:
• Integrating the objectives of the CBD into global, regional and national
sectoral and cross-sectoral programs and policies;
• Encouraging synergies between the CBD and other MEAs through the
development of joint plans and programs;
• Promoting the wide implementation and further development of the
ecosystem approach, as being elaborated in the ongoing work of the
Convention;
• Promoting the effective participation of indigenous and local communities
in decision and policy-making concerning the use of their traditional
knowledge;
• Developing appropriate legislative, policy and administrative framework
to regulate access to genetic resources and equitable benefit sharing;
• Introduce strong legislative, policy and administrative mechanisms for
the protection of traditional knowledge and innovations that promote the
conservation and sustainable use of biological diversity;
• Promoting practicable measures for access to the results and benefits
arising from biotechnologies based on genetic resources.
At a recent meeting in 2003, several countries gathered in London, England to better
understand the JPOI target and also identify ways of assessing how the 2010
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iodiversity target could be achieved. Two important recommendations were made by
the United Nations sanctioned meeting. These were:
• The whole process of assessing progress in achieving the 2010 target should
be CBD-led and not CBD-centred. In other words, the CBD has a central role
to play both in terms of its mandate and breadth of action at national and
international levels, but there are many other important initiatives at all levels
that have a potential to contribute to the achievement of the target.
• Although the year 2010 is undoubtedly an important target, the efforts of the
international community to reduce the rate of biodiversity loss should continue
well beyond the year 2010.
National and local efforts to reduce biodiversity loss should therefore, take the cue
from the CBD. Any attempts to deviate from the CBD will only lead to more diversity
loss.
In the international arena then, there is a clear indication of the shift in policy from
pollution control and purely environmental management to sustainable use of
biological diversity. This paradigm shift has been complemented by a series of action
plans beginning with the Stockholm Action Plan to Agenda 21 and now the JPOI. The
successes of these initiatives depend largely on positive and active domestic
responses. These responses take the form of policy, legislative and institutional
transformation. The extent to which States respond to these international challenges,
reveal the seriousness of these countries in dealing with global environmental issues.
2.2 Legal Framework on Biodiversity
There are several MEAs which cut across the board and cover both general biodiversity
and specific biological species. For the purposes of this paper, only the most pertinent
to PNG will be discussed. Ten MEAs have been identified for review. These are:
1. Convention on Biological Diversity (CBD)
2. The Cartagena Protocol to the CBD
3. United Nations Law of the Sea Convention
4. United Nations Framework Convention on Climate Change
5. Kyoto Protocol to the UNFCCC
6. Convention on International Trade in Endangered Species of Wild Fauna and
Flora
7. Convention Concerning the Protection of the World Cultural and Natural
Heritage 1972
8. Convention on Wetlands of International Importance Especially as Waterfowl
Habitats (RAMSAR)
9. WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights
(TRIPS Agreement)
10. International Convention for the Protection of New Varieties of Plants (UPOV
Convention)
11. The International Treaty on Plant Genetic Resources for Food & Agriculture
(PGRFA Treaty)
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The review that follows will focus specifically on biodiversity, its protection and
sustainable use. The aim of the review is to highlight the relationship between these
different treaties and how they impact on certain components of biodiversity.
2.2.1 The Convention on Biological Diversity (CBD)
The protection of biodiversity is not new in the international arena. Several MEAs were
already in existence dealing with specific components of biodiversity. These include:
(1) the International Convention on the Regulation of Whaling 1946; (2) the
Convention on Wetlands of International Importance Especially as Waterfowl Habitats
1971 (Ramsar); (3) the Convention for the Protection of the World Cultural and
Natural Heritage 1972 (World Heritage); (4) the Convention on International Trade in
Endangered Species of Wild Fauna and Flora 1973 (CITES) and (5) the Convention on
the Conservation of Migratory Species of Wild Animals 1979 (Bonn). As their title
suggests, these treaties targeted either a specific biological species or biological species
habitat. There was therefore a need to develop an umbrella treaty that would provide the
basic framework for biodiversity protection and sustainable use. The CBD was
fashioned to fill this vacuum.
The CBD was negotiated under the supervision of the UNEP and adopted at the
UNCED in 1992. When the treaty was opened for signature, 153 States signed the
treaty and on 29 th December, 1993, it came into force. The aims of the CBD are set out
in Article 1 of the treaty.
The objective of this Convention, to be pursued in accordance with its relevant
provisions, are the conservation of biological diversity, the sustainable use of its
components and the fair and equitable sharing of the benefits arising out of
genetic resources, including by appropriate access to genetic resources and by
appropriate transfer of relevant technologies, taking into account all rights over
those resources and to technologies, and by appropriate funding.
There are therefore three principal aims of the CBD. First, the conservation of
biodiversity, second, the sustainable use of biodiversity and third, the equitable sharing
of benefits derived from the use of biological diversity.
To achieve the aims of the treaty, the CBD sets out a number of strategies in the form
of obligations which member States are required to adopt. Some of the specific
obligations mandated by the CBD are:
• Creating a system of protected areas to conserve biological diversity
(Article 8);
• Developing mechanisms to prevent the introduction of, control or eradicate
alien species which threaten ecosystems (Article 8);
• Preserving and maintaining knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles relevant
for the conservation and sustainable use of biological diversity and promote
their wider application through appropriate legal, policy and
administrative arrangements (Article 8(j));
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• Establishing and maintaining facilities for ex-situ conservation of
components of biological diversity (Article 9);
• Protecting and encouraging customary use of biological resources in
accordance with traditional and cultural practices (Article 10);
• Adopting economically and socially sound measures that act as incentives
for the conservation and sustainable use of components of biological
diversity (Article 11);
• Establishing and maintaining programs for scientific and technical
education and training measures for the conservation and sustainable use of
biological diversity (Article 12);
• Promoting and encouraging public awareness on biological diversity
protection and sustainable use through the media and educational
institutions (Article 13);
• Introducing appropriate mechanisms for environmental impact assessment
(EIA) of proposed projects which will have a significant impact on the
biological diversity (Article 14);
• Developing rules and guidelines on access to biological diversity (Article
15);
• Introducing rules relating to the transfer of technology that promote
biodiversity protection and sustainable use (Article 16);
• Facilitating the exchange of information between contracting parties
(Article 17);
• Promoting scientific and technical cooperation between contracting parties
(Article 18); and
• Developing legislative, administrative or policy measures to regulate and
manage biotechnology research and benefit sharing (Article 19).
The protection and sustainable use of biological diversity requires a firm commitment
by member States to prevent and attack the causes of biological diversity loss. This will
involve either, the transformation of the legal, policy and institutional structures or
introducing new legal, policy and administrative regimes.
The CBD also provides clear rules on how to access, use and equitably distribute
benefits derived from the sustainable use of biodiversity. The mechanisms provided in
the treaty reflect the tussle that went behind the scenes between the developed and
developing countries. The treaty provisions relating to access, use and benefit sharing
show the compromises reached between these two opposing groups. The pertinent
provisions of the treaty are examined below.
2.2.2 The Cartagena Protocol to the CBD
The Conference of the Parties to the CBD adopted a supplementary agreement to the
Convention known as the Cartagena Protocol on Biosafety on 29 January 2000 and
which entered into force on 11 th September 2003. The Protocol seeks to protect
biological diversity from the potential risks posed by living modified organisms
(LMO) created through the use of modern biotechnologies.
The objective of the Protocol is to contribute to the safe transfer, handling and use of
LMO that may have adverse effects on the conservation and sustainable use of
biological diversity, taking into account risks also to human health, and specifically
focusing on transboundary movements. The Protocol deals with transboundary
movement of LMO that may have adverse effects on biodiversity, taking also into
24

account human health. It does not cover non-living products derived from LMO, such
as cooking oil from genetically modified (GM) corn or ketchup from GM tomatoes.
The Protocol also establishes an advanced informed agreement (AIA) procedure for
ensuring that countries are provided with the information necessary to make informed
decisions before agreeing to the import of such organisms into their territory. The
Protocol contains reference to the precautionary approach and reaffirms the
precaution language in Principle 15 of the Rio Declaration. The Protocol also
establishes a Biosafety Clearing-House to facilitate the exchange of information on
LMO to assist countries in the implementation of the Protocol.
Now that the Protocol is in force, it will become legally binding in the international
legal system and in the legal systems of States that have given consent to be bound by
it. States must comply with and implement all the provisions of the Protocol. The
Protocol is the only international instrument that deals exclusively with LMO.
To become a party to the Protocol, a country or a regional economic integration
organization must first be a party to the CBD. A member State that approves for
domestic use and marketing of LMOs intended for direct use as food, feed or
processing that may be exported will be required to communicate this decision and
details about the LMO to the world community via the Biosafety Clearing-House
(BCH).
2.2.3 United Nations Framework Convention on Climate
Change (UNFCCC)
The UNFCCC was negotiated against the backdrop of human activity which had and
continues to increase the atmospheric concentration of greenhouse gases which alter
radiative balances and tend to warm the atmosphere. The alteration of the radiative
balances leads to ozone depletion, climate change, desertification, deforestation, air
pollution, and acidification, toxic waste, water pollution, exhaustion of non-renewable
resources, loss of biodiversity, species extinction and health problems such as cancer,
malaria, cholera and mouse plague. There was therefore, an urgent need to address the
problem of climate change. It was originally envisaged that the UNFCCC would
provide concrete targets for the reduction of green house gases (GHG). However, the
UNFCCC failed to make specific commitments regarding the level of emissions or
future reduction of emissions. The UNFCCC left this issue to further and future
negotiations of the Conference of Parties.
2.2.4 Kyoto Protocol
Some of the issues which were unresolved at Rio were raised at the Conference of the
Parties in Kyoto, Japan in 1997. After much debate the Kyoto Protocol was adopted and
opened for signature in the same year. One of the most contentious issues resolved at
the Kyoto conference was the setting of achievable targets for the reduction of
greenhouse gases at least 5% below the 1990 levels by the year 2012. This requirement
is clearly spelt out in Article 3 of the Protocol. Another significant component of the
Protocol is the CDM established under Article 12. The CDM process allows for carbon
25

trading in an effort to reducing greenhouse gases on a global scale. For PNG and other
developing countries, the CDM process provides five significant opportunities. These
are: (1) enhancement of the sustainability of the country’s forest resources; (2) financial
benefits; (3) technology transfer; (4) capacity building and (5) enhancement of
biodiversity protection and sustainable use.
2.2.5 United Nations Convention on the Law of the Sea
(UNCLOS)
For the present purpose the most appropriate international agreement that deals with
marine biological research and development is the UNCLOS. This treaty was
completed in 1982 and came into force in 1994. The main objectives of UNCLOS are
the protection of the marine environment and the conservation of fishery species. A
significant aspect of UNCLOS which is relevant for PNG is the UNCLOS rules
relating to marine scientific research (MSR).
The relevant part of the UNCLOS on MSR is Part XIII and especially Article 246.
This provision recognizes that coastal States have the inherent jurisdiction to develop
consent regimes for MSR in their internal, contiguous and territorial seas. Article 246
lays down the consent regime for MSR in the Exclusive Economic Zone (EEZ) and
on the continental shelf. Under article 246, the coastal States have the right to regulate
and authorize the conduct of MSR in the EEZ and on the continental shelf. Thus,
access by other States or competent international organizations to the EEZ or the
continental shelf for the conduct of MSR is subject to the control of the coastal State.
According to the scheme of Part XIII a coastal State is obliged to grant consent where
the research is for peaceful purposes and fulfils certain domestic criteria.
The debate on whether a coastal State has the right to regulate the conduct of marine
scientific research in an area of water traditionally recognized as the high seas created
opposition from the developed States. However, after negotiations, the EEZ concept
and other significant components of the treaty were accepted by the parties.
The EEZ is a sui generis zone of its own. It is neither a territorial sea nor the high
seas. Article 56 of UNCLOS stipulates that the coastal State is given only sovereign
rights for the purpose of exploring and exploiting the natural resources of the sea,
(both living and non–living) on its seabed and subsoil. In this zone the coastal State is
given the jurisdiction to regulate MSR to be conducted by other States within the
EEZ, in accordance with the relevant provisions of the Convention, in this case, Part
XIII of the treaty.
PNG has ratified this treaty and thus, is required to implement its obligations under
the treaty. In PNG, the Marine Scientific Research Committee (MSRC) is responsible
for regulating MSR in PNG waters. The MSRC has recently adopted a set of
guidelines which be applied to MSR activities in PNG. The guidelines are included as
Annexure 1 to provide a guide to PINBio.
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2.2.6 Convention on the International Trade in Endangered
Species (CITES)
The CITES was adopted in 3 rd April 1973 and entered into force on 1 st July 1975. The
Convention was first proposed by the IUCN (World Conservation Union) in 1963.
The CITES was consequently adopted in Washington D.C in 1973 by 88 countries.
Annually, international wildlife trade is estimated to be worth billions of dollars and
to include hundreds of millions of plant and animal specimens. The trade is diverse,
ranging from live animals and plants to a vast array of wildlife products derived from
them, including food products, exotic leather goods, wooden musical instruments,
timber, tourist curios and medicines. Because the trade in wild animals and plants
crosses borders between countries, the effort to regulate it requires international
cooperation to safeguard certain species from over-exploitation. The primary goal of
CITES is to ensure that international trade in specimens of wild animals and plants
does not threaten their survival.
By 2004, 166 countries have become party members to the Convention and varying
degrees of protection have been accorded to more than 30,000 species of animals and
plants, whether traded as live specimens, fur coats or dried herbs. CITES regulates
international trade in specimens of selected species which are covered by three
Appendices to the Convention. These Appendices provide different levels of
protection to species of fauna and flora. The three Appendices are:
• Appendix I includes species threatened with extinction. Trade in specimens of
these species is permitted only in exceptional circumstances.
• Appendix II includes species not necessarily threatened with extinction, but in
which trade must be controlled in order to avoid utilization incompatible with
their survival.
• Appendix III contains species that are protected in at least one country, which
has asked other CITES parties for assistance in controlling the trade.
Member States are required to adopt domestic legislation to control international trade
in the protected species in their national jurisdiction. Such a law must designate one
or more Management Authorities in charge of administering the licensing system and
one or more Scientific Authorities to advise them on the effects of trade on the status
of the species.
PNG is a signatory to the treaty. PNG’s obligations under CITES is managed by
DEC. PNG has also enacted the International Trade (Fauna and Flora) (Amendment)
Act 2003 to regulate CITES species in PNG. The legislation adopts the latest up-date
of the CITES species.
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2.2.7 Convention Concerning the Protection of the World
Cultural and Natural Heritage (World Heritage
Convention)
The World Heritage Convention was adopted in 1972. The mission statements of the
Convention are: (1) encourage countries to sign the Convention and ensure the
protection of their natural and cultural heritage and (2) encourage parties to nominate
sites within their national territories for inclusion in the World Heritage List.
As at the 30 th of April 2004, 177 States have ratified the Convention. The Convention
seeks to protect cultural and natural heritage. The Convention defines cultural
heritage as “a monument, group of buildings or site of historical, aesthetic,
archaeological, scientific, ethnological or anthropological value”. Natural heritage is
defined as “outstanding physical, biological, and geological features; habitats of
threatened plants or animal species and areas of value on scientific or aesthetic
grounds or from the point of view of conservation”. By 2004, 754 properties have
been placed on the World Heritage List – 582 cultural, 149 natural and 23 mixed
properties, in 129 countries.
The Convention is important for biodiversity because certain natural areas which may
contain high biodiversity can be protected under the Convention. For instance,
currently there are 33 natural forests which are included in the World Heritage List.
The protection of natural areas such as forest can also contribute to carbon
sequestration under the UNFCC and Kyoto Protocol. By combining the principles in
the CBD, UNFCC and Kyoto Protocol, and the World Heritage Convention, large
areas of natural habitats can be protected and sustainable use of the biological
resources contained therein promoted.
PNG is a party to this treaty and is thus, required to protect some of its natural and
cultural heritage sites. PNG enacted two laws which were designed to give effect to
the Convention, namely; the National Parks Act and the Conservation Areas Act. To
give some form of recognition to the World Heritage Convention, PNG has
established several national parks under the National Parks Act. None of these
national parks are however, listed in the World Heritage List. An attempt was made in
early 2000 by UNESCO, the National Museum and Art Gallery and the Anthropology
Strand of UPNG to prepare the Kuk Agricultural Site for nomination under the
Convention. Interestingly, the wrong legislation was being relied on to support the
project. No attempt was made to explore the mechanisms under the National Parks
Act and a brisk mention was made of the Conservation Areas Act without a thorough
analysis of its effect on the project. Hopefully, the project will come to fruition soon
most preferably under the Conservation Areas Act.
2.2.8 Convention on Wetlands of International Importance
Especially as Waterfowl Habitats (RAMSAR)
The Wetlands Convention of RAMSAR was adopted in 1971 and came into force in
1975. There are 138 members of the Convention. As at 14 th May, 2004, a total 1367
28

sites with a total surface area of 120,514, 364 hectares have been protected under
RAMSAR. RAMSAR calls for the wise use of wetlands.
RAMSAR provides the framework for national action and international cooperation
for the conservation and wise use of wetlands and their resources. The Convention
has a very limited focus – wetlands. Wetlands are defined by the Convention cover
“swamps and marshes, lakes and rivers, wet grasslands and peatlands, oases,
estuaries, deltas and tidal flats, near-shore marine areas, mangroves and coral reefs,
and human-made sites such as fish ponds, rice paddies, reservoirs, and salt pans”.
Given the focus of the Convention and its definition of wetlands, it has close affinity
to the CBD. Biodiversity protection and sustainable use as promulgated by the CBD
would easily be accommodated by RAMSAR.
PNG became a party to RAMSAR in 1993. Some of the wildlife management areas
established under the Fauna (Control and Protection) Act may qualify under the
Convention, but no wetlands have been established since PNG became a party to
RAMSAR. Interestingly, the term “wise use” used in RAMSAR was adopted by PNG
through its Constitution. Goal 4 of the Preamble of the PNG Constitution adopts the
term “wise use” but the Constitution does not define the term. According to the
Convention, the term means: “sustainable utilization for the benefit of mankind in
a way compatible with the maintenance of the natural properties of the
ecosystem”.
2.2.8 Agreement on Trade-Related Intellectual Property
Rights (TRIPs Agreement)
The TRIPs Agreement was adopted on 15 th April 1994. The Agreement is closely
related to the agreements establishing the World Intellectual Property Organization
(WIPO) and World Trade Organization. The Agreement contains some references to
certain provisions of the International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organizations, 1961 (Rome
Convention); the Paris Convention for the Protection of Industrial Property 1967
(Paris Convention) and the Berne Convention for the Protection of Literary and
Artistic Works 1971 (Berne Convention). However, there is no general obligation to
comply with the substantive provisions of that Convention.
The TRPIs Agreement covers five broad areas. These are:
• How basic principles of the trading system and other international intellectual
property agreements should be applied;
• How to give adequate protection to intellectual property rights;
• How countries should enforce those rights adequately in their own territories;
• How to settle disputes on intellectual property between members of the World
Trade Organization; and
• Special transitional arrangements during the period when the new system is
being introduced.
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The central focus of the agreement is therefore on IPR. The agreement defines IPR in
the following terms.
Intellectual property rights are the rights given to persons over the creations of
their minds. They usually give the creator an exclusive right over the use of
his/her creation for a certain period of time
IPR are usually divided into two main traditional areas: (1) copyright and rights
related to copyright and (2) industrial property rights. Copyrights and rights related to
copyrights are the rights of authors of literary and artistic works (such as books and
other writings, musical compositions, paintings, sculpture, computer programs and
films) which are protected by copyright, for a minimum period of 50 years after the
death of the author. Also protected through copyright and related rights (sometimes
referred to as “neighboring rights”) are the rights of performers (e.g. actors, singers
and musicians) and producers of phonograms (sound recordings) and broadcasting
organizations. The underpinning of the protection of copyright and related rights
is to encourage and reward creative work.
Industrial property rights are divided into two main areas. The first area can be
characterized as the protection of distinctive signs, in particular trademarks (which
distinguish the goods or services of one undertaking from those of other undertakings)
and geographical indications (which identify a good as originating in a place where a
given characteristic of the good is essentially attributable to its geographical origin).
The protection of distinctive signs aims to stimulate and ensure fair competition and
to protect consumers, by enabling them to make informed choices between various
goods and services. The protection may last indefinitely, provided the sign in question
continues to be distinctive.
The other area of industrial property rights is general and covers industrial property
rights which are protected primarily to stimulate innovation, design and the creation
of technology. In this category fall:
• Inventions (protected by patents);
• Industrial designs; and
• Trade secrets.
The principal reason for adopting such mechanisms is to provide protection for the
results of investment in the development of new technology thus, giving the incentive
and means to finance research and development activities. An IPR framework must
also enable the transfer of technology in the form of foreign direct investment, joint
ventures and licensing. The period of protection provided is usually for a specified
period. In the case of patents the usually period is 20 years.
An appropriate IPR framework must aim to achieve a balance between the rights of
inventors and the rights of users of the product. A rigid IPR framework would be
counterproductive in that it may discourage foreign investments and further research.
The TRIPs Agreement implicitly acknowledges the potential negative effects that
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arise from the granting of IPR. It therefore, contains an exception whereby WTO
members are not obliged to grant patents for products or processes where “the
prevention within [national] territory of [their] commercial exploitation… is
necessary to protect odre public [law and order] or morality, including to protect
human, animal or plant life or health or to avoid serious prejudice to the
environment.” This is the most important exception for sustainable development and
by and large, biodiversity protection and sustainable use. However, the concept has
not been adequately defined and it has never been tested. The relevant provision of
TRIPs Agreement on this issue is Article 27 which is in the following terms.
Article 27
1. Subject to the provisions of paragraphs 2 and 3, patents shall be available
for any inventions, whether products or processes, in all fields of technology,
provided that they are new, involve an inventive step and are capable of
industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of
Article 70 and paragraph 3 of this Article, patents shall be available and
patent rights enjoyable without discrimination as to the place of invention,
the field of technology and whether products are imported or locally
produced.
2. Members may exclude from patentability inventions, the prevention within
their territory of the commercial exploitation of which is necessary to
protect ordre public or morality, including to protect human, animal or
plant life or health or to avoid serious prejudice to the environment,
provided that such exclusion is not made merely because the exploitation is
prohibited by their law.
3. Members may also exclude from patentability:
(a) diagnostics, therapeutic and surgical methods for the treatment of
humans or animals;
(b) plants and animals other than micro-organisms, and essentially
biological processes for the production of plants or animals other than
non-biological and micro-biological processes. However, Members shall
provide for the protection of plant varieties either by patent or by an
effective sui generic system or by any combination thereof. The
provisions of this subparagraph shall be reviewed four years after the
date of entry into force of the WTO Agreement.
Article 27 makes it a general rule that all inventions whether products or processes
shall be patented. The provision then provides several exceptions to this general rule.
These exceptions are clearly spelt out in paragraphs (2) and (3) of the same Article.
These provisions provide member States with the opportunity to exempt certain
inventions from being patented.
It is important to observe that according to Article 27 (3)(b) plants and animals and
biological processes can be excluded from patentability by a member State. Microorganisms,
non-biological and microbiological processes are however patentable. It is
also instructive to note that plant varieties may be protected through patenting or a sui
generis system.
Two reviews have been undertaken by the TRIPs Council in relation to the Article
27(3)(b). These reviews must be seen in the context of the 2001 Doha Declaration.
This instrument draws two reviews together in Paragraph 19. Paragraph 19 of the
declaration stipulates that work in the TRIPS Council on these reviews or any other
implementation issue should also look at:
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• The relationship between the TRIPS Agreement and the CBD;
• The protection of traditional knowledge and folklore; and
• Other relevant new developments that member governments raise in the
review of the TRIPS Agreement.
There are attempts being made at the international level to identify ways in which the
TRIPs Agreement can be integrated with CBD. More work obviously needs to be
undertaken to find an amicable solution to this issue.
PNG ratified the agreement in 1995 at the behest of World Trade Organization. In
2000, at the behest of WIPO, PNG enacted two pieces of legislation to protect the two
main areas of IPR – copyright and related rights and industrial property rights. The
two laws are: the Copyright and Neighbouring Rights Act and the Patents and
Industrial Designs Act. Both these laws are considered in Part 4 of the paper.
2.2.9 International Convention of the Union for the
Protection of New Varieties of Plant (UPOV)
The International Convention for the Protection of New Varieties of Pants was first
signed in 1961. The main purpose of UPOV was to provide a form of legal protection
for plant varieties of western European countries. The Convention seeks to protect
new varieties of plants for agriculture and also for plant breeders’ rights (PBR). Under
the Convention the breeders of new plant varieties are recognized and protected for a
given period of time by an intellectual property right.
The UPOV has been amended several times since 1961 – in 1972, 1978 and 1991.
Some States are members to the 1978 Convention while others are members to the
1991 version. Non-member States wishing to join the treaty are required to join under
the 1991 version. The 1991 amendment came into effect on 28 th April, 1998. The
main focus of these amendments is to strengthen the rights of plant breeders.
For present purpose, the main significant feature of UPOV is the elevation of PBR.
PBR was developed to reward innovation in a development of new plants varieties
and to prevent other breeders from breeding or selling the same plants varieties. The
treaty seeks to ensure that the rights of plant breeders are strengthened and promoted
at the global level. The 1991 amendment extended the protection for PBR to 20 years
for non-woody and 23 years for woody plants. It is important to note that the PBR is
only available to countries that are party to the UPOV. This protection provides an
incentive for domestic investment in plant breeding (by allowing breeders time to
recoup their costs) as well as for overseas breeders to release their improved new
varieties in an importing member country (as they will be assured that their IPR can
be enforced in the importing country in the event of an infringement).
Although the UPOV was open to only developed countries, since the adoption of the
TRIPS Agreement, more developing countries are becoming parties to the UPOV. For
instance, by 15 th January, 2004, of the 54 member States, about 20 are developing
countries. The underpinning for developing countries joining the UPOV is that the
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Convention promotes the sui generis system as required under Article 27(3)(b) of the
TRIPs Agreement.
The cost of implementing the UPOV system would be prohibitive for most Pacific
Island Countries acting alone. The implementation of the treaty would require
substantial amount of money to establish world class facilities and appoint
experienced and qualified personnel to conduct tests, research and provide advice to
the appropriate authorities. It will also require a certain volume of applications to
make the facilities viable. Against this backdrop, it would not be feasible for a single
Pacific Island country to pursue its obligations under the UPOV.
2.2.10 International Treaty on Plant Genetic Resources
for Food and Agriculture (PGRFA Treaty)
This treaty was approved at the Food and Agriculture Organization (FAO)
Conference at its Thirty-first Session in November 2001. It was opened for signature
on 3 rd November, 2001. Having achieved the required number of ratifications as
espoused under Article 28 of the Convention it will now come into force on 29 th June,
2004.
The main objectives of the International Treaty on Plant Genetic Resources for Food
and Agriculture (PGRFA Treaty) are:
• Conservation of plant genetic resources;
• Sustainable use of plant genetic resources for food and agriculture
• Benefit Sharing.
The objectives of the PGRFA Treaty are compatible with the spirit of the CBD. The
guiding principles for the PGRFA Treaty are the promotion of sustainable agriculture
and food security.
The core of the PGRFA Treaty is the creation of a multilateral system of access and
benefit sharing which will streamline and simplify access procedures for more than 64
of the world’s major crops and forages including the major root and tuber crops of the
Pacific. This mechanism will assist in facilitating the flow of PGRFA between parties
to the treaty.
Access to PGRFA is covered under Article 12 of the treaty. Several conditions are
stipulated under the PGRFA Treaty to enable access to PGRFA. These include:
1. Access is to be provided solely for the purpose of utilization and
conservation for research, breeding and training.
2. Access is to be accorded expeditiously without the need to track individual
accessions.
3. All available passport data are subject to the applicable law. All non
confidential information is to be made available to the resource provider.
4. Recipients are not to claim IPR that limit the facilitator the access to the
resource.
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The actual terms of the access arrangement are to be facilitated through a Material
Transfer Agreement (MTA), which will be developed by the governing body of the
PGRFA Treaty. Benefits arising from the use of PGRFA including commercial
benefits are to be shared equitable through various means including:
1. Exchange of information;
2. Access to the transfer of technology;
3. Capacity building; and
4. Sharing of monetary and other benefits arising from commercialization.
It is important to observe that there is a critical distinction between the PGRFA and
the CBD. The former deals specifically with PGRFA while the CBD covers
biodiversity in general (plant, animal and microbial).
Member States of the CBD who decide to become parties to the PGRFA Treaty must
agree that access to the crops listed will not require PIC for each and every crop, but
that access will instead be governed by MTAs. ABS regimes in respect of crops and
species not covered by the PGRFA Treaty can and should come under the auspices of
the CBD.
These 10 treaties affect biodiversity in a variety of ways. The only non-MEA which
has been included in this review – TRIPs Agreement, does have significant impacts
on biodiversity. Attempts are being made to establish the link between the agreement
and biodiversity. The success of the MEAs depends on the commitment of parties to
implement the obligations under these treaties. Table 3 shows where PNG stands in
relation to the treaties. PNG’s position on four of the treaties is shown in Table 6
below.
Table 3:
PNG’s Position in Relation to Some of the Treaties
Name of
Convention
In force
PNG
Signatory
Ratified by
PNG
Domestic
Legislation
Domestic
Policy &
Implementing
Body
CITES Yes 12/12/75 11/3/75 CITES Act
2003
PINBio/DEC/
NAQIA
World
Heritage
Convention
Yes (1975) Yes (1997) National Parks
Act,
Conservation
Areas Act
National
Cultural
Commission/
DEC/PINBio
RAMSAR Yes (1975) Yes (1993) Conservation PINBio/DEC
Areas Act
TRIPs
Agreement
Yes (1995) Yes Yes (1995) No PINBio/IPA/
MSRC
UPOV Yes (1991) No No PINBio/NARI
PGRFA
Treaty
Yes (2004) No No No PINBio/NARI
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2.3 Key Issues Relating to Biodiversity under the Treaties
Several key issues which are pertinent to PNG that are addressed by the ten treaties
are considered immediately below. These issues are: (1) national institution
responsible for biodiversity; (2) protection of biological resources; (3) access to
biological resources for research and development. The latter issue is four pronged. It
involves questions of: (a) prior informed consent (PIC); (b) benefit sharing; (c)
transfer of technology and (d) protection of intellectual property rights.
2.3.1 Creation of a National Biodiversity Authority
The various MEAs contain provisions aimed at establishing domestic administrative
structures for the implementation of the MEA. The CBD and the Cartagena Protocol
specifically calls for the establishment of a national institution to supervise biodiversity
protection and sustainable use, and transboundary movement of LMO. The UNFCC
and the Kyoto Protocol also provide for the establishment of a national institution to
also perform similar functions relating to GHG.
In PNG, the government took the middle ground by establishing PINBio, and
mandating it with the responsibility of developing mechanisms which are aimed at
fulfilling the country’s obligations under the CBD. The creation of PINBio has not been
complemented by any formal legislative and administrative framework. The issue then
is whether the time is now appropriate for the country to take that bold step and
formally legislate into being an institution that will be mandated to implement PNG’s
obligations under the CBD and other MEAs.
The formal establishment of PINBio through legislation with an expanded mandate to
implement the country’s obligations under the MEA, notably the CBD, the Cartagena
Protocol, the UNFCCC and the Kyoto Protocol, CITES, Rio Declaration, Johannesburg
Declaration, Agenda 21 and the JPOI.
2.3.2 Access to Biological Resources
Two of the notable mechanisms promoted by the CBD are ABS and PIC. The relevant
provisions of the treaty relating to ABS are Articles 15, 16 and 19. These provisions
recognise that the authority to determine access to biological resources rests with the
national governments and is subject to national legislation.
Article 15 provides the backbone to access to genetic resources. It is therefore,
instructive to consider some of its provisions. Article 15(1) strengthens the
international law doctrine of ‘State sovereignty over natural resources’ by giving
power over to the States to determine in their own terms (subject to certain limits)
rules and procedures on access to genetic resources. Individual States must therefore,
set the benchmark through legislation for access to biological resources.
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Article 15 (1)
Recognizing the sovereign rights of States over their natural resources, the authority
to determine access to genetic resources rests with the national governments and is
subject to national legislation.
Article 15(2)
Each Contracting Party shall endeavour to create conditions to facilitate access to
genetic resources for environmentally sound uses by other Contracting Parties and
not to impose restrictions that run counter to the objectives of this Convention
Article 15(4)
Access, where granted, shall be on mutually agreed terms and subject to the
provisions of this Article
Article 15(4) provides a simple caveat in the law, enabling foreign entities and
individuals to negotiate access arrangements based on mutual understanding. The
arrangements between UPNG and some of the foreign research institutions are
premised on this provision.
2.3.2.1 Prior Informed Consent
Article 15(5)
Access to genetic resources shall be subject to prior informed consent of the
Contracting Party providing such resources, unless otherwise determined by that
Party
This provision requires informed consent prior to access and subsequent export of
genetic material. To be effective, national legislation governing ABS and PIC must be
put in place. Such legislation may specify minimum or general terms or conditions of
access such as benefit sharing on a case by case basis. A national legislation requiring
the minimum conditions for access to genetic resources will create a uniform basis for
negotiations, reduce delays and avoid arbitrary decision making.
The Cartagena Protocol to the CBD also makes it mandatory for contracting parties to
put in place procedures for AIA to enable importing countries to make an informed
decision about the importation of LMOs. The AIA process strengthens the PIC
concept and also provides an opportunity for importing countries to make informed
decisions about the effects of importing LMOs into their countries.
2.3.2.2 Benefit Sharing
Article 15(7) sums up the requirements for access and benefit sharing.
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Article 15(7)
Each Contracting Party shall take legislative, administrative or policy measures, as
appropriate, and in accordance with Article 16 and 19 and, where necessary, through
the financial mechanisms established by Article 20 and 21 with the aim of sharing in a
fair and equitable way the results of research and development and the benefits arising
from the commercial and other utilization of genetic resources with the Contracting
Party providing such resources. Such sharing shall be upon mutually agreed terms.
Article 19 of the CBD focuses on the handling of biotechnology and distribution of its
benefits. Article 19(1) and (2) obliges contracting parties to ensure that results arising
from the arrangements under Articles 15 and 16 are shared equitably.
Article 19(1)
Each Contracting Party shall take legislative, administrative or policy measures, as
appropriate, to provide for the effective participation in biotechnological research
activities by those Contracting Parties, especially developing countries, which
provide the genetic resources for such research, and where feasible in such
Contracting Party.
Article 19(2)
Each Contracting Party shall take all practicable measures to promote and
advance priority access on a fair and equitable basis by Contracting Parties,
especially developing countries, to the results and benefits arising from
biotechnologies based upon genetic resources provided by those Contracting
Parties. Such access shall be on mutually agreed terms.
2.3.2.3 Technology Transfer
Article 16 of the CBD provides the framework for the access to and transfer of
technology. The kinds of technology encompassed by Article 16 include:
• Technologies relevant to the conservation of biological diversity;
• Technologies relevant to the sustainable use of its components; and
• Technologies that make use of genetic resources.
These technologies must of course not have detrimental effects on the environment. It
is imperative to understand what technology transfer is. The United Nations
Conference on Trade and Development (1990) defined technology as “transfer of
systematic knowledge for the manufacture of a product, for the application of a
process or for the rendering of a service”. Technology may be “soft technology” or
“hard technology”. Soft technology includes: (1) know-how; (2) skills and (3)
technologies. It is soft because it involves information and is intangible. Examples
include knowledge in traditional medicines, the conservation techniques of a village
community, or environmentally-friendly fishing methods of a fishing community.
Hard technology involves tangible items or goods. These may include equipment or
hardware such as computers or a bio-processing plant.
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2.3.3 Intellectual Property Rights
IPR aims to achieve two objectives; first, provide incentives for innovation and
second, encourage disclosure of new information or technique. When economic
benefits are obtainable through a strong IPR framework, creativity is increased and
information sharing becomes more flexible. IPR can fall under five different
categories. These are: (1) trade secrets; (2) patents; (3) PBR; (4) copyrights and (5)
trademarks.
Each of these five different forms of IPR performs different functions. Trade secrets
is a scheme as the name suggests, aimed at retaining control over and prevent the
disclosure of an original invention or process. Patents are designed to protect the
innovator and exclude other people from using, making or selling his or her product
or discovery, usual for a specified time of time. PBR are aimed at protecting the rights
of breeders of new varieties of plants. Copyright protects the work of authors from
copying and trademarks ensure that people do not similarly confusing words, name,
symbols or devices in connexion with trade in goods and services. Trademarks are
aimed at preventing deception in commercial activities.
The CBD expressly provides for the protection of IPR regarding biological
inventions. The CBD calls on member States to develop or transform their policy,
legal and institutional systems to cater for ABS and IPR relating to biological
resources. The major international text on IPR is, however, the TRIPs Agreement.
The TRIPs Agreement provides various protection measures for different kinds of
inventions. All WTO members are required to establish same minimum standards of
protection of IPR. The TRIPs Agreement is quite unique given that it is positively
proscriptive. That is, while all the other WTO rules ascribe what countries should not
do, the TRIPs Agreement describes what countries must do.
Rules such as the TRIPs Agreement help ensure that more inventions will take place.
Because without such protection, who would want to spend millions of dollars
developing, for example, new software or drugs, which will then be replicated at will by
others and distributed at minimal costs (Intellectual property tends to have very high
costs of development, but low costs of reproduction once developed.)
However, TRIPs-style protection may work against sustainable development
objectives by making goods such as pharmaceutical products more costly and less
accessible to the poor. This problem is more apparent in developing countries where
they have been urged by WTO to dismantle domestic industries which depended on
the production of cheap foreign-patented drugs thus, forcing up prices dramatically.
Prior to the TRIPs Agreement some of these developing countries had laws which
allowed the patenting of processes used to manufacture a product (not the product
itself), so it was legally possible to make the same drug in a modified way without
paying royalties. But the TRIPs Agreement demands product patents as well as
process, putting an end to this kind of production.
In August 2003, the World Trade Organization member governments broke their
deadlock over intellectual property protection and public health. They agreed on legal
changes that will make it easier for poorer countries to import cheaper generics made
38

under compulsory licensing if they are unable to manufacture the medicines
themselves.
The relevant provision of the TRIPs Agreement and CBD is Article 27. As mentioned
above, work is continuing to establish synergy between these two agreements. In
relation to plant varieties, their inclusion in the TRIPs Agreement can be attributed to
the UPOV Convention. The latter convention recognizes PBR as a form of a sui
generis system. Given the scheme of the TRIPs Agreement and the UPOV
Convention, it is possible that a sui generis system may apply to innovations in
biodiversity
2.4 Developing Synergies in International Biodiversity Law
A review of the various MEAs will show that they overlap on a number of important
issues relating to biodiversity. Some of these include:
• Creation of specialized institutions;
• Development or formulation of plans or strategies to achieve the objectives of
the MEA;
• Formulation or reformation of domestic legislative framework to incorporate
and promote the objectives of the MEA; and
• Standardisation of rules and guidelines.
For developing countries, fulfilling these different obligations under the different
MEAs is a mammoth task given their lack of capacity and resources to meet these
international requirements. The key is to identify compatible provisions of the
different MEAs and develop a single strategy to implement these provisions in a
consistent and cost-effective manner. At the international level, attempts are being
made to synergize compatible provisions of the international treaties. The
implementation of the CBD provides an important opportunity for countries to review
their various obligations under the different MEAs and synergise their
implementation.
The first sign of this paradigm shift is the integration between the CBD, the UPOV
and the PGRFA Treaty on the issue of PBR and farmer breeder rights (FBR). It is
generally agreed that PBR and FBR promulgated in the UPOV can be accommodated
by the PGRFA Treaty and that these rights are closely linked to the rules on PIC and
ABS in the CBD.
The relationship between these treaties can be highlighted in the following situations.
First, PBR and FBR are recognized in the light of IPR in a sui genres system. Second,
a person wanting access to a plant variety or agrobiodiversity (germ plasma), must
first obtain PIC from the person who has the PBR. Third, if a person who has been
allowed access to a plant variety or agrobiodiversity wishes a third party to sample the
plant, he requires a MTA consent from the PBR holder before he can allow the third
person to access the plant. And fourth once a PIC has been obtained from a person
who has PBR, no further PIC is required for further research and development
involving genetic manipulation through conventional means or by biotechnology.
39

Clearly the implementation of these three treaties requires close collaboration of the
principles enunciated by these treaties. State parties dealing with PGRFA would find
it more advantageous if they implement the PGRFA Treaty together with the relevant
provisions of the CBD and UPOV.
The shift towards the integration of principles and practices under the different MEAs
relating to biodiversity has however, been more difficult with the TRIPS Agreement
and UNCLOS, particularly in relation to the key issues of PIC and ABS. Proposals
were put forward by the developing countries to the WTO Secretariat to identify ways
in which relevant provisions of the TRIPs Agreement and the CBD could be
integrated to enable member States to obtain the best results under these two treaties.
This proposal was, however, strongly opposed by the developed countries and thus no
formal attempts have been made to marry the relevant provisions of the treaties.
The main reason for this objection was the opposing objectives of these two treaties.
The CBD focuses inter alia on ensuring that local and indigenous communities,
mostly in developing countries, have control over and obtain a fair share of the
benefits derived from their own traditional knowledge and “informal” innovations.
The CBD requires member States to ensure that patents and other intellectual property
rights ‘are supportive of and do not run counter to’ its objectives.
The TRIPS Agreement on the other hand does not give explicit recognition to
informal innovation and traditional knowledge. The treaty focuses on patents and
other intellectual property rights defined under conventional intellectual property
regimes which exclude traditional knowledge and innovations.
A small opening that is available to developing countries is that the TRIPs Agreement
does not require national intellectual property rights regimes to be identical. This
means that individual countries can develop higher standards than those required by
TRIPs. By adopting this approach, developing countries who are members of the
CBD, can impose certain conditions on such matters as IPR by ensuring that a
certificate of origin is issued or registered for all innovations originating from
traditional knowledge. Developing countries can also create mechanisms within the
IPR law to achieve specific objectives such as benefit sharing.
The other treaty that does have an impact on biodiversity but does not expressly
embrace the CBD is the UNCLOS. There is also no clear connection between
UNCLOS and the TRIPS Agreement. The key issue that cuts across these three
treaties is MSR and especially deep seabed mining which is covered by Part XI of
UNCLOS. How can the results of MSR be protected under the TRIPS Agreement and
how can indigenous communities benefit from any commercial benefits derived from
the results of MSR as envisaged by the CBD
An attempt was made in Montreal in 2003 to address this particular issue by the
Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA). The
SBSTTA however, did not clarify these issues. In fact, in its report, the SBSTTA
failed to address two critical issues which are important for marine biodiversity and
MSR. These were:
• High seas marine protected areas; and
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• IPR as incentives for ABS and sustainable use.
The thrust of the report was on biological resources attached to the ocean floor and
not the free swimming fish above, which fall within the regime of fisheries on the
high seas, covered by Articles 116-119 of UNCLOS and the Agreement for the
Implementation of the Provisions of the UNCLOS of 10 December 1982 Relating to
the Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks 1995. It appears that SBSTTA did not consider the relationship of the
TRIPS Agreement to the UNCLOS on the issue of intellectual property. Therefore,
the linkages between the CBD, the TRIPS Agreement and UNCLOS have not yet
been settled.
2.5 The South Pacific Region and Biodiversity
The South Pacific region has very unique biodiversity comprising small coral atolls,
small islands and the larger islands which are located mostly in Melanesia. The
common denominator for these countries is the South Pacific Ocean where all the
countries in the region are located. The region has a total land mass of 550,000 km 2
and 30.5 km 2 of EEZ. The region has the largest tuna fishery in the world with 1000
fishing vessels from 21 countries with earnings over $70 million.
The countries in the region are very familiar with the importance of the environment
to the livelihood of their people. The sea and the land play a vital role in the lives of
the South Pacific’s rural communities. For instance, of the annual harvest of 108,000
tonnes of inshore fishery, 80% of this catch is for subsistence fishery. Realizing the
importance of the environment, the countries in the region adopted a series of regional
treaties aimed at protecting their marine and terrestrial environment. Several of these
treaties are specifically aimed at protecting the marine environment and the fishery
resources of the region. These agreements are listed below in three different
categories - environment generally; marine environment and pollution.
A brief discussion of the work of several regional organizations and their programs
which impact on biodiversity is listed below. The aim of this exercise is to establish
the nexus between the international, regional and national initiatives on biodiversity.
2.5.1 Regional Environmental Treaties
2.5.1.1 Environment Generally
There are two major general environment treaties that affect the region. These are: (1)
the Convention on the Conservation of Nature in the South Pacific (Apia Convention)
and (2) the Convention for the Protection of the Natural Resources and the
Environment of the South Pacific Region and Related Protocols (Noumea
Convention). A third related treaty, the Agreement Establishing the South Pacific
Regional Environment Program (SPREP Treaty) was adopted much later to establish
SPREP as the regional organization to coordinate environment activities in the region.
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The focus of the Apia Convention is to promote the conservation, utilization and
development of the natural resources of the South Pacific region through careful
planning and management for the benefit of the present and future generations. The
treaty obligates member States to take action for the conservation, utilization and
development of the natural resources of the South Pacific region through careful
planning and management for the benefit of present and future generations.
The Apia Convention is the regional version of the CBD. The treaty has four
important features which are also found in the CBD. These are:
• Parties to create protected areas to safeguard representative samples of natural
ecosystems, superlative scenery, striking geological formations and regions
and objects of aesthetic, historic, cultural or scientific value. This requirement
is expressly stated in Article 2.
• National parks not to be altered so as to reduce their area except after the
fullest investigation, their resources not to be subject to commercial
exploitation, hunting and collection of species to be prohibited and provision
to be made for visitors. This obligation is spelt out in Article 3.
• Parties to maintain lists of indigenous fauna and flora in danger of extinction
and to give such species as complete protection as possible. Article 5 of the
Convention compels member States to undertake this task.
• Provision may be made as appropriate for customary use of areas and species
in accordance with traditional cultural practices. The protection of traditional
use of protected areas and protected species are recognized by Article 6.
The treaty is the oldest regional environmental treaty. It was adopted in 1976 and
came into force only in 1990. The Noumea Convention is aimed at protecting the
South Pacific marine environment from pollution and other harmful acts. It was
adopted in 1986 and entered into force in 1990. The SPREP Treaty was concluded in
1993 and entered into force in 1995.
The SPREP Treaty’s principal aim is the establishment of SPREP as the regional
environmental organization. Article 1 of the treaty establishes SPREP and Article 2
explains the purposes of SPREP. These include:
• Promoting cooperation in the South Pacific region on environmental matters;
• Providing assistance in order to protect and improve the environment of the
South Pacific region; and
• Ensuring sustainable development for the present and future generations
through the use of the regions natural resources. SPREP shall achieve these
purposes through the Action Plan adopted from time to time by the SPREP
Meeting, setting the strategies and objectives of SPREP.
SPREP is to achieve these purposes through an Action Plan. The Action Plan shall set
out in unambiguous terms the following matters:
• Coordinating regional activities addressing the environment;
• Monitoring and assessing the state of the environment in the region including
the impacts of human activities on the ecosystems of the region and
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encouraging development undertaken to be directed towards maintaining or
enhancing environmental qualities;
• Promoting and developing programs, including research programs, to protect
the atmosphere and terrestrial, freshwater, coastal and marine ecosystems and
species, while ensuring ecologically sustainable utilization of resources;
• Reducing, through prevention and management, atmospheric, land based,
freshwater and marine pollution;
• Strengthening national and regional capabilities and institutional
arrangements;
• Increasing and improving training, educational and public awareness
activities; and
• Promoting integrated legal, planning and management mechanisms.
SPREP’s mandate is broad and reflects many of the themes being pursued at the
international level. From an institutional perspective, SPREP acts as the regional link
between multilateral institutions and national institutions. Its main function would
therefore, be to coordinate or facilitate international initiatives at the regional level.
2.5.1.2 Marine Environment
There are several regional treaties relating to the marine environment and more
specifically fishery resources. These include: (1) the Nauru Agreement Concerning
Cooperation in the Management of Fisheries of Common Interest; (2) South Pacific
Forum Fisheries Agency Convention; (3) Treaty on Fisheries Between the
Governments of Certain Pacific Island States and the Government of the United
States of America; (4) Niue Treaty on Cooperation in Fisheries, Surveillance and Law
Enforcement in the South Pacific Region and (5) Convention for the Prohibition of
Fishing with Long Driftnets in the South Pacific.
The Nauru Treaty was adopted in 1982 and applies to only eight countries in the
region. The treaty seeks to coordinate and harmonize the management of fisheries
with regard to common stocks within the Fisheries Zones of the contracting parties for
the benefit of their people. The FFA treaty was concluded in 1979 solely for the
purpose of establishing the Forum Fisheries Agency, the regional organization
responsible for fisheries matters within the region.
The treaty between the US and certain Pacific Island States provides a framework for
licensing of US fishing vessels, access to the EEZ of the contracting parties by these
US fishing vessels and monetary benefits to be distributed to the contracting parties
annually in two installments paid by the US. The treaty was first adopted in 1987 to
cover a 10 year period. It was extended in 1993 and further in 2003. The current
period is from 2003 to 2013.
The Niue treaty was adopted in 1992 by 17 countries in the region. The treaty
promotes cooperation in the enforcement of fisheries laws and regulations of
contracting parties and in developing regionally agreed procedures for the conduct of
fisheries surveillance and law enforcement. The Long Driftnets treaty was adopted in
1989 and came into force two years later in 1991. The treaty is aimed at banning long
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driftnet fishing in the South Pacific region because of its deleterious effects on the
marine environment.
2.5.1.3 Pollution
There are four principal regional pollution treaties. Two of the treatieds relate to
nuclear and hazardous wastes while the other two encompass oil pollution. The
treaties are: (1) the South Pacific Nuclear Free Zone Treaty; (2) the Convention to
Ban the Importation into Forum Island Countries of Hazardous and Radioactive
Waste and to Control the Transboundary Movement and Management of Hazardous
Waste within the South Pacific Region (Waigani Convention); (3) the Protocol for the
Prevention of Pollution of the South Pacific Region by Dumping and (4) Protocol
Concerning Co-operation in Combating Pollution Emergencies in the South Pacific
Region.
The Nuclear Treaty was specifically designed to target the French Nuclear Testing
Program in French Polynesia which is going to have a long term environmental
impact in the region. The efforts of the countries in the region paid off with the five
major powers of the world ratifying the treaty. The treaty was opened for signature in
1985 and within a year it entered into force. The Waigani Convention was adopted in
1995 and is aimed at banning the importation of radioactive wastes and also
regulating the management of hazardous waste in the region. The two latter protocols
were adopted in Noumea in 1986 and came into force in 1990. The first protocol
relates to the prevention of dumping of wastes in the region and the second protocol is
aimed at promoting cooperation amongst contracting parties in dealing with pollution
incidents.
2.5.2 Regional Initiatives
The fisheries conventions are managed by the FFA. Apart from the various programs
emanating from these treaties, several other programs originating from MEAs are also
undertaken in the region. These programs are either managed by SPREP or the Pacific
Islands Forum (PIF) or other relevant organizations in the region.
Generally, most of the regional activities are supervised by the PIF which is the
regional policy maker for the region. The PIF has a secretariat known as the Forum
Secretariat which manages the operational affairs of the PIF. The Forum Secretariat
facilitates and monitors regional initiatives in the region. A committee which works
closely with the Forum Secretariat is the Council for Regional Organizations in the
Pacific (CROP). CROP is an ad hoc committee which coordinates the various
initiatives undertaken by various regional organizations. CROP has been instrumental
in coordinating several programs in the region. Some of these programs include:
• Forum Fisheries Agency (FFA);
• Pacific Islands Development Programme;
• Pacific Islands Forum Secretariat;
• South Pacific Applied Geosciences Commission (SOPAC);
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• South Pacific Regional Environmental Programme (SPREP);
• South Pacific Tourism Organization;
• University of the South Pacific
Given the focus of the paper on biodiversity, only the relevant programs which are
being promulgated in the region under the auspices of the CBD, Cartagena Protocol,
UPOV, UNCLOS, PGRFA Treaty, TRIPS Agreement, are reviewed.
2.5.2.1 CBD and UNFCCC
The implementation of this treaty in the region has been vested with SPREP. The
organization has a division devoted solely to biodiversity. However, SPREP has not
been able to deliver substantive policy and legislative models to guide the countries in
the region mainly due to lack of funds and human capacity. In light of this situation,
funds have now been allocated to WWF South Pacific from FIELD, for WWF to
collaborate with SPREP to develop regional and domestic ABS models relating to
genetic resources.
SPREP is also responsible for ensuring the implementation of the UNFCCC in the
region. Much of this work is directed at pollution control and waste management,
which are critical components of the UNFCCC. The strength of SPREP lies mainly in
this area.
2.5.2.2 Cartagena Protocol to the CBD
There are no indications as to which regional body is responsible for this treaty. The
trade division of the Forum Secretariat does have responsibility over sanitary and
phytosanitry issues, but unfortunately, that is where it ends. There is apparently no
regional position on LMOs and biotechnology for that matter.
2.5.2.3 UNCLOS
This treaty has the most impact in the region, most probably because of the
geographical location of the region. The main player in this area has been SOPAC.
SOPAC’s jurisdiction is ‘blue water’ whilst all the other regional organizations focus
on ‘white water’. SOPAC has been largely responsible for the drafting of regional
policies and the implementation of various provisions of UNCLOS in the region.
SOPAC has been successful in this area because of its collaboration with many
international NGOs.
The major setback for SOPAC is that it has not taken a firm position on marine
biodiversity. The indications are that SPREP also does not have a firm policy on this
matter, especially in relation to deep-sea bed exploration. The lack of direction at the
regional level means that individual countries are at liberty to adopt their own
mechanisms to regulate deep-sea bed exploration and where feasible development.
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SOPAC has however, been very active in the area of MSR and has had some limited
impact in territorial sea and EEZ exploration. Although its scope is concentrated on
non-living materials, its work does intertwine with marine biodiversity. This window
of opening relates to the environmental impact assessment (EIA) process where
minerals are found. If minerals are found, an EIA has to be completed before any
development takes place. It is at this point that concerns for marine biodiversity.
2.5.2.4 UPOV Convention
There is no formal regional position on this Convention.
2.5.2.5 PGRFA Treaty
The Secretariat of the Pacific Community has taken on the task of developing a
regional position on this treaty in close collaboration with the Forum Secretariat. It is
also prepared to assist member countries in establishing relevant infrastructure to
implement the treaty. The specific program it is involved in is the Pacific Agricultural
Plant Genetic Resources Network. The main aim of the project is to provide advice to
member countries on PGRFA issues.
2.5.2.6 TRIPS Agreement
The discussions on the CBD, applies equally to this treaty.
2.5.3 Where to Next
The foregoing discussions show that there is very little happening at the regional level
in regard to biodiversity. Although there is an array of regional treaties, only the Apia
Convention comes closer to the CBD. The implementation of the Apia Convention and
the other environmental treaties was strengthened by the establishment of SPREP.
There are however, two shortfalls of the Apia Convention. First, it is pre-CBD and
therefore does not reflect some of the modern principles on access to biodiversity,
benefit sharing and IPR. Second, although it is the oldest environmental treaty in the
region, it has not received the support it requires from the countries in the region. The
major focus of the region has been and continues to be marine biodiversity. The region
has to wake up to the fact that biodiversity has to be approached from a holistic
perspective. The regional integration organizations have to pool their resources together
to promote biodiversity protection and sustainable development.
2.6 Conclusion
There is clearly a flux of international activity in the area of biodiversity protection and
sustainable use. Many countries are moving forward in the implementation of their
obligations under the various MEAs. There is also a growing realization that some of
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the obligations under the different treaties are inter-related, and therefore, common
approaches are being developed and adopted to ensure these obligations are
implemented in a holistic manner.
In the South Pacific region, the major focus of the regional organizations has been on
the protection and sustainable use of the marine biodiversity particularly fisheries
resources. This narrow focus is largely influenced by the geographical location of these
countries – South Pacific Ocean. This narrow perspective has to be changed given the
interconnectedness of marine and terrestrial biodiversity and human activities. Such a
paradigm shift will take time and will involve a reformation of the policy, legal and
administrative systems in the region.
Where does this place PNG PNG has a unique geographical location. It is the largest
island country in the region apart from Australia and New Zealand. Given its unique
biodiversity and its complex social structures, PNG has to take appropriate measures,
which might sometimes be different from its neighbours, to pursue goals which are
peculiar to the country. Such measures may include: (1) ratification of a number of
MEAs which are inappropriate for most of the small island States such as the Cartagena
Protocol, the UPOV Convention and the PGRFA Treaty; (2) developing institutional
structures for the implementation of some of the treaty obligations; (3) adoption of
nationally designed policies and legislation on biodiversity which are conducive to
PNG and (4) politically playing a more prominent role in the region on matters relating
to the environment.
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3: Papua New Guinea’s Policy on Biodiversity
3.1 Introduction
The gathering of States at Rio de Janeiro in June 1992 highlighted the concern of the
global community about environmental degradation and the desire to combine their
efforts to tackle global environmental and social issues such as poverty. PNG sent a
high-powered delegation led by the Governor-General to the UNCED to participate in
that very important event in the history of planet earth. The status of PNG’s
delegation to the Rio Conference was indicative of the country’s seriousness in
participating actively with the global family to find solutions to address the imminent
environmental problems that threatens the very survival of this planet and its
inhabitants. To further strengthen its position as a concerned member of the global
family of nations and its desire to implement the resolutions that were formally
adopted at the Rio Conference it signed the UNFCCC and the CBD in 1992 and also
adopted the Rio Declaration, Statement of Principles for a Global Consensus on the
Management, Conservation and Sustainable Development of All Types of Forests and
further accepted the global strategy aimed at addressing the issues raised at the
conference entitled Agenda 21. The two treaties were ratified by PNG on 16 March
1993.
Soon after UNCED, PNG initiated a series of activities at the domestic level to
maintain the momentum created at Rio. These initiatives were aimed at developing
relevant strategies for the attainment of sustainable development in the country. These
activities included:
• PNG Response to Rio Conference in November1992;
• Waigani Seminar on Environment and Development in 1993;
• Ratification of the Rio treaties in 1993;
• First attempt to develop the National Sustainable Development Strategy in
1994;
• Medium Term Development Strategy 1997 - 2002 (MTDS)
• Establishment of Papua New Guinea Institute of Biodiversity 1998, and
• PNG Human Development Report 1998.
However, the momentum fizzled out by 1994. The government’s response since 1992
has been quite haphazard and sporadic. Several studies have highlighted the need for
firm action by the government to implement the Rio documents. A review of the
national policies confirms this view. An examination of different government policies
of the last 10 years reveals that the government has not been able to follow any
credible and tangible development path. The piecemeal approach to national
development may be attributed to, among other factors, institutional and human
incapacities and political instability. The only significant attempt that has been made
by the government which had any semblance of a national development vision is the
five yearly, MTDS. The last MTDS (1997-2002) has been described as a failure. And
the new MTDS 2003-2007 is still in the draft stages, even two years after the close of
the former MTDS.
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To make some sense of the trend in government thinking (policy), as it relates to
biodiversity, the following methodology has been adopted for this paper. First, a brief
overview will be provided of the various policies to highlight the country’s core
development goals and second, the relevant policies which have an impact on
biodiversity will be presented. The third part of this aspect of the paper will deal with
relevant policies that have a bearing on ABS.
3.2 Overview of the National Development Goals
This section of the paper contains a review of four main government policies which
deal with several core development issues for PNG. These documents clearly indicate
the priorities of the government and the approaches it will take to achieve these
visions. The core issues that the government intends to focus its attention on in the
immediate to long-term are: (1) poverty alleviation; (2) health; (3) education and (4)
law and order.
3.2.1 National Goals and Directive Principles
When PNG became an independent State in 1975, it adopted and declared its
Constitution as the supreme law of the land. This stipulation is expressly stated by
section 10 and 11 of the Constitution. The Constitution has therefore, become the
guiding principle of the country over the last 29 years. In the Preamble of the
Constitution are the country’s development visions. These development goals are
called the “National Goals and Directive Principles”. There are five National Goals
and supporting Directive Principles. These are:
1. Integral Human Development;
2. Equality and Participation;
3. National Sovereignty and Self Reliance;
4. Natural Resources and the Environment; and
5. Papua New Guinean Ways.
These five National Goals serve as the foundation for any government development
plan. All national plans, whether short or long-term, must aim to: (1) achieve the full
human development of every Papua New Guinean; (2) provide equal opportunities for
the participation of every Papua New Guinean in the development process; (3)
promote national identity and enable Papua New Guineans to be economically and
politically self reliant; (4) promote sustainable use of the country’s natural resources
and enhance the carrying capacity of the natural environment; and (5) promote Papua
New Guinean ways.
These five National Goals have been amplified in various government policies since
Independence. All the present national development plans attribute their very
existence to these five National Goals and Directive Principles. Bold statements are
usually expressed in the introductory part of a national development plan declaring
that the policy is aimed at achieving the National Goals.
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The National Goals and Directive Principles reflect the aspirations of past, present
and future Papua New Guineans. The National Goals and Directive Principles is
PNG’s road-map to prosperity and happiness.
3.2.2 The Medium Term Development Strategy 2003-2007
Since independence, successive governments have introduced their development
programs to improve the livelihood of the people of PNG. In the 1990s the
government began to adopt a five year development program. The last five year
development program was the MTDS 1997 – 2002. The primary vision of that MTDS
was to build a partnership between the government and the people.
The vision of the MTDS is of Government, the community of the one Nation,
working with local communities that together make up the Nation. Where a
community is pooling resources to build and run a school or an aid post, the
Government can help out by providing a teacher or a community health worker.
Over the last five years since its inception in 1997, the MTDS does not seem to have
provided the impetus for rural growth and sustainable development of the country.
The ending of the MTDS 1997-2002 also coincided with the election of a new
government in 2002. With a new government in power, the policies and strategies of a
previous government are bound to be changed. Against this backdrop the Government
of Michael Somare has embarked on a policy shift focusing on three broad areas.
These are:
• Good Governance;
• Export-driven Economic Growth; and
• Rural Development, Poverty Reduction and Human Resource Development.
The third objective may be split into three separate policy objectives – rural
development; poverty reduction and human resource development. The current
government therefore, has six policy objectives which must be postulated in the new
MTDS 2003-2007.
The draft MTDS 2003 – 2007 adopts these six objectives as the pillars for the
development of PNG over the next five years and beyond.
For the period 2003-2007, PNG’s core development strategy is defined as exportdriven,
rural development and poverty reduction, including through good
governance and the promotion of agriculture, forestry and fisheries on an
ecologically sustainable basis. The strategy will be realized by empowering Papua
New Guineans, especially those in rural areas, to mobilize their own resources for
higher living standards.
The government aims to achieve these objectives through a number of intervention
strategies which include:
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• Strengthening political stability through political reforms;
• Greater transparency and accountability through institutional strengthening
and public sector reforms;
• Stronger fiscal governance through improved expenditure management; and
• Poverty reduction through greater emphasis on health, education and
agricultural development.
Interestingly the draft MTDS contains a table at ‘Annex 2’ which attempts to provide
a link between the seven Millennium Development Goals contained in the Millennium
Declaration and expanded in JPOI, and PNG’s position in relation to these Goals.
Goal 7 of the Millennium Development Goals is significant as it relates to
environmental sustainability. The global community is encouraged to achieve two
targets under environmental sustainability. These are: (1) integrate the principles of
sustainable development into country policies and programs and reverse the loss of
environmental resources and (2) halve by 2015, the proportion of people without
sustainable access to safe drinking water. The indicators for the first target are shown
in Table 4.
Table 4:
Environmental Sustainability Indicators
Indicator
Situation in PNG
Proportion of land area covered by forest 57 %
Land area protected for biological diversity 3% of total
GDP per unit of energy use (as proxy for N/A
energy efficiency)
Carbon dioxide emissions (per capita)
0.6 metric tonnes
The government does not show how it plans to achieve these Millennium
Development Goals and especially Goal 7 through the strategies proposed by the draft
MTDS. The draft MTDS fails to provide a clear linkage between these seven Goals
and the national strategies. The table in ‘Annex 2’ does not actually serve any real
purpose except to highlight the situation in PNG in relation to these Goals.
The real challenge for the government is to make this development program work. A
key concern about the MTDS is that is does not provide a clear nexus between the
priorities identified by the MTDS and ecological sustainable development. The
MTDS makes a brisk mention of sustainable development and ties it loosely with
forestry and fisheries resources development, but it fails to clearly provide the
strategy to achieve sustainable development, not only in these two sectors, but also on
a national level.
Over the last two years, the bureaucrats have tried hard to fashion the MTDS to meet
the government’s key goals. Unfortunately, almost two years after the lapse of the
MTDS 1997-2002, the government has still not even approved the new MTDS for
2003-2007.
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3.2.3 Poverty Alleviation
Initially poverty was not considered as prevalent in PNG given the lack of
understanding of the problem. Since the 1990s there has been a general consensus that
poverty does exist in the country. Poverty has many different faces. The government
has accepted poverty alleviation as a core policy issue for PNG. In its five year
development plan of 1997-2002, the government tried to address the issue by
including the PRS as an integral component of the MTDS. The new MTDS 2003-
2007 also adopts poverty alleviation as a key government objective for the next five
years.
The bulk of PNG’s poor live in the rural areas. Given this scenario, the new MTDS
will act as the vehicle to enable the rural communities to harness their resources to
improve their livelihoods. The government aims to improve rural livelihoods
principally through improved agricultural opportunities. Some of the factors which
are being targeted by the government through the new MTDS are: improved physical
infrastructure; empowerment of rural communities through the provision of relevant
initiatives envisioned by the Organic Law on Provincial Governments and Locallevel
Governments and improvement of the law and order situation.
3.2.4 Health
The adoption of the 10 Year National Health Plan (policy) by the Health Department
in 2001 paves the way for the efficient delivery of health services to the people of
PNG. The National Plan covers the years 2001 to 2010. Prior to this policy the
Parliament had enacted in 1997 the National Health Administration Act which
reformed the administration of delivery of health services mainly through the creation
of Hospital Boards and the introduction of the “user pay” policy in the sector. The 10
Year Health Plan is quite comprehensive and ambitious. However, there are very
serious concerns about the lack of implementation of this policy.
The principal concern for the country is the delivery of basic health services to the
rural areas especially in relation to primary health care. The methods and channels of
delivery seem to be primary concern for this sector. This is attributed to the
concentration of the decision making power at the centre and the lack of transparency
in the delivery of medical services to the people.
The Health Department has acknowledged that the effective implementation of the
Health Policy would be a mammoth task. It has therefore, began to reprioritize its
goals and objectives. The Department has agreed to pursue five main goals in the
short-term to provide the launch pad for the implementation of the Health Policy in
the long-term. These reprioritized goals are:
1. Disease control – particularly malaria and TB;
2. Sexually Transmitted Infections – particularly HIV/AIDS;
3. Child Mortality – reduce child mortality by two-thirds of 1990 level; and
4. Maternal mortality- reduce by three quarters, maternal mortality by 2015.
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These goals have been adjusted to meet the requirements of the new MTDS 2003-
2007. The Health Department hopes that all its resources both internally and from
external sources will be channelled towards these four major programs to enhance the
health status of the country in the long term.
3.2.5 Education
One of the principal areas of government concern over the years has been on
education and especially in primary and elementary education. The assumption is that
by improving and strengthening the primary and elementary schools, PNG citizens of
the future are prepared at an early stage to deal with the issues of life. This
assumption has led to the reformation of the education system with the concentration
of funds and efforts at the elementary, primary and secondary levels of education and
vocational schools.
It is imperative to note that with this change, there has also been a shift in the
curriculum toward life skills. This initiative is encouraging and should be
strengthened. This can be achieved by empowering the teachers with adequate
knowledge about issues on biodiversity protection and sustainable use, and equipping
them with appropriate skills to better tackle these issues.
The current government’s focus is on basic education meaning elementary, primary
and secondary schools. According to the draft MTDS 2003-2007, the government will
gradually improve its budgetary allocation for basic education from K101.8 million in
2003 to K103.2 in 2006. This budgetary support will strengthen programs such as
elementary teacher training; improvement of primary schools infrastructure;
improvement of rural education facilities; teacher training; literacy and awareness,
and technical and vocational training.
The government’s focus on basic education does not equate well with the White Paper
on Higher Education, Research, Science and Technology adopted by the government in
1996. This policy has five broad objectives. These are:
1. Creating a lively, just and self-reliant nation of forward and outward looking
citizens;
2. Promoting peace with our neighbors at home and abroad;
3. Promoting pride in our rich cultural and environmental diversity;
4. Promoting and upholding Christian principles; and
5. Equipping citizens with the best that higher education, research, science and
technology can provide to improve and sustain the quality of life.
The government hoped to achieve these goals through the creation of additional
universities and other tertiary institutions. In 2000, there were 31 declared institutions
of higher learning with six universities. It was envisioned by the government at the time
that these institutions would absorb the majority of the grades 10 and 12 graduates
passing out of secondary and high schools. These higher learning institutions were also
required to provide the necessary high-level training to the future leaders of the country.
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However, the concentration of government resources to basic education has not been
matched with similar commitments to institutions of higher learning. These institutions
do not have the bed and instructional facilities to handle the anticipated increase in
student enrollments. These institutions have the capacity to accept only 2500 students
from over 19,000 graduates from 30 secondary schools (Grade 12) and high schools
(Grade 10) in the country annually. In 2000 it was estimated that by this year (2004)
5000 students will graduate with Grade 12 Certificates. Unfortunately, many of these
students will not find space at these institutions of higher learning because of the
problems identified above.
There is clearly an urgent need to review the government’s policies on education. The
government’s focus on basic education needs to be complemented with a similar focus
on higher education. The government’s declining financial support for tertiary
institutions such as the universities have greatly impacted on their capacity to
effectively perform their primary functions namely, teaching and research. Unless the
government realigns its thinking, the five goals of the Higher Education Policy will be
kept in abeyance.
3.2.6 Law and Order
The issue of law and order has been blamed for a host of problems affecting the
country. A number of research projects have been undertaken to identify the root causes
of law and order problems and a number of strategies have even been adopted to tackle
the problem. These plans have not been able to improve the law and order situation in
the PNG.
In the late 1990s the government with the aid of AusAid, set about developing a new
Law and Justice policy. This initiative was completed in 1999 and a new Law and
Justice Sector policy was consequently approved by the government. The new policy
entitled “National Law and Justice Policy and Plan of Action: Towards Restorative
Justice” takes a holistic approach to the resolution of the law and order problem in
PNG. The policy recognizes the important linkage between law and order and nation
building and thus, vests an obligation on all the stakeholders to cooperate in joint
initiatives to deal with the problem. At the core of this new policy is the concept of
‘restorative justice’. Restorative justice is premised on conflict resolution and deviates
from retribution and adversarial approaches.
The new law and justice policy seeks to shift conflict resolution from the formal system
to the community. It seeks community support in maintaining peace and good order
within the society. The concept is aimed at enabling the communities to deal with minor
conflicts while the major and serious cases are dealt with by the formal system – the
police, courts and prisons.
The government has with the assistance of multilateral aid organizations, notably
AusAid, directed a lot of resources into the sector to improve the capacities of the
institutions responsible for law and order. As late as 2003, the governments of PNG and
Australia have agreed to further improve the sector with the appointment of Australians
to the PNG judiciary and the deployment of Australian police officers in the country.
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3.3 Policies on Components of Biodiversity
There is currently no specific national policy on biodiversity. The policy that comes
closest to biodiversity protection and sustainable use is the environment policy of
1976. However, this policy is quite broad and does not itself focus directly on
biodiversity protection and sustainable use. Several national policies also have some
bearing on components of biological diversity. These include forestry, fisheries,
agriculture, transport and tourism. Each of the policies governing these sectors and
their relationship to biodiversity protection and sustainable use are examined below.
3.3.1 Environment Policy
The government has since Independence in 1975, recognized the value of this unique
biodiversity and made provision for its protection, sustainable use and management.
The Constitution of PNG expressly calls for the protection, wise use and
replenishment of the country’s biodiversity and natural resources. This is set out in
Goal 4 of the Constitution. Goal 4 is in the following terms:
We declare our fourth goal to be for Papua New Guinea’s natural resources and environment
to be conserved and used for the collective benefit of us all, and be replenished for the benefit
of future generations.
WE ACCORDINGLY CALL FOR—
(1) wise use to be made of our natural resources and the environment in and on the land
or seabed, in the sea, under the land, and in the air, in the interests of our
development and in trust for future generations; and
(2) the conservation and replenishment, for the benefit of ourselves and posterity, of the
environment and its sacred, scenic, and historical qualities; and
(3) all necessary steps to be taken to give adequate protection to our valued birds,
animals, fish, insects, plants and trees.
This constitutional mandate was supplemented in 1976, with the introduction of the
national environmental policy. The environmental policy entitled “Environment and
Conservation Policy: A Statement of Principles” among other things, seeks to foster
proper environmental management for the benefit of the present and future
generations and the consideration of biodiversity protection and sustainable use in
economic planning.
The Environment Policy merely restates and expands the fourth Goal of the National
Goals and Directive Principles. Five key principles are articulated by the environment
policy. These are:
1 Development must be economical, social and ecological;
2 Wise use of non-renewable natural resources;
3 Recognition of the ability of the environment to produce renewable resources;
4 Safeguarding and wisely managing the wildlife and their habitat in the
development process; and
5 Planning to be applied to human settlement and urbanisation.
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This policy framework does clearly accommodate biological diversity protection and
sustainable use. The policy recognizes the important link between social and
economic progress and their impact on biodiversity.
An important aspect of the policy is that it shifts the responsibility for ensuring the
maintenance of biological diversity from the national government (acting alone) to
individuals, families, clans and local-level governments. It is therefore, imperative to
understand that the government and every Papua New Guinean, old and young, male
and female, big and small alike are all required to act, as custodians of the country’s
biological resources. The onus is thus, on every one to ensure that development
activities do not adversely affect the country’s rich and unique biodiversity.
The underpinning of the Environment Policy is that biodiversity protection and its
sustainable use must be given consideration in planning for economic development.
This Environment Policy provided the foundation for environment and resources use
and planning since 1976.
The main issue with the Environment Policy is that it does not provide strategies to
achieve the integration of sustainable development in national programs for economic
and social development. This weakness has resulted in past and present national
policies paying lip service to the environment policy. The Environment Policy has
remained unchanged for almost 29 years. Some of the modern principles of
environmental management such as, inter-generational equity; intra-generational
equity and integration clearly fall outside the scope of the environment policy. There
is a strong case for a revision of the environment policy to enable it to mirror the
values and aspirations of a contemporary PNG society.
3.3.2 Forests
The forestry sector has undergone major policy and legislative changes since the early
1990s. A new forestry policy was introduced in 1990 on the back of the World Bank
report into the forestry sector (Tropical Forest Action Plan 1986) and the infamous
Barnett Commission of Inquiry in 1987. The National Forest Policy 1990 is aimed at
streamlining and strengthening access to forestry resources and their utilization and
removing corruption in the sector. The Forest Policy seeks to address these objectives
through a series of strategies. These include: (1) Forest Management; (2) Forest
Industry; (3) Forest Research; (4) Forestry Training and Education and (5) Forestry
Organisation and Administration. These essential components of the National Forest
Policy are designed to enhance the forestry sector and transform it into a viable sector.
Each of these components is critical to the forestry sector.
Forestry management involves issues of resource ownership, classification and
resources acquisition. Rules relating to access to the forestry resources are located in
this part of the policy. The primary tool for access is the Forest Management
Agreement. Unfortunately, the policy does not contain clear rules about PIC and
benefit sharing. The actual benefit sharing arrangements are left to the vices of the
developers and the forest resource owners through the Logging and Marketing
Agreements with very little supervision by the National Forest Authority.
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Forest research is promoted through the auspices of the National Forest Research
Institute (FRI) which is based in Lae. Again the Forest Policy does not provide clear
directives as to access to forestry resources and PIC for research, and benefit sharing
in relation to research results.
An important aspect of the policy is forest conservation. The Forest Policy expressly
promotes the conservation of forests if they meet a set of criteria.
According to the policy, where forests are unique because of their location,
topographic constraints, ecological, or cultural or environmental considerations,
they shall be declared protected forests.
This particular aspect of the policy has not been vigorously pursued by the National
Forest Authority. It would be interesting to see how this aspect of the forestry policy
can be promulgated with the environmental policy to declare protected areas.
3.3.3 Eco-Forestry Policy
In 2003, the government through the National Forest Authority introduced a draft
National Eco-Forestry Policy (Second Draft). This draft policy seeks to complement
the National Forest Policy by strengthening the management and protection of the
country’s forest resources through the regulation of eco-forestry activities.
Several key features of the draft Eco-Forestry Policy signal the shift in government
thinking about the future of the country’s forest resources. These are:
• National Forest and Biodiversity Inventory;
• Small and Medium-Scale Sawmills;
• Biodiversity Conservation;
• Support for Eco-Tourism;
• Non Timber Forest Products;
• Agroforestry;
• Woodlots; and
• Community Tree Nurseries.
Under the draft policy, it is proposed that the national inventory will be undertaken
jointly by several institutions ranging from universities to national government
departments and non-governmental organisations. The inventory will cover all
forestry resources including flora and fauna species. This national database will be
updated every 20 years. The policy promotes institutional collaboration and seeks to
strengthen institutional networking.
In terms of biodiversity conservation, the draft policy seeks to strengthen the status of
protection forests. Under the draft policy, the National Forest Authority will establish
a network of conservation areas throughout the country. Where an area has been
declared a conservation forest area, it is proposed that all commercial activities that
57

y their nature would jeopardize the functions of the forest ecosystems will be
banned.
Forest areas of high biodiversity value and environmental importance shall be
conserved by the resource owners under the guidance of the Provincial Forest
Management Committee.
The National Forest Board shall advise the Minister on the proposed
conservation area network. Those areas shall be banned from any commercial
activities that, by their nature, could jeopardize the functions of forest ecosystems.
How the government intends to obtain PIC from resource owners in relation to
conservation areas espoused by the draft policy remain unclear. Also, the kinds of
costs and benefits that will be derived through biodiversity conservation have not
been addressed by the draft policy. Unlike the draft Sustainable Mining Policy which
goes at length in addressing these two critical issues, the draft Eco-Forestry Policy is
silent on them.
The policy is still in the draft stages. Several regional workshops were conducted in
2003 by the National Forest Authority to gauge the views of the stakeholders. It is
envisioned that the draft policy will be endorsed by the government soon.
3.3.4 Fisheries
A comprehensive fisheries sector review was undertaken in the early 1990s. The
review was funded largely by external donors, primarily the Asian Development
Bank, AusAid and the Food and Agriculture Organisation (FAO). The review resulted
in the introduction of a major fisheries policy and a legislative enactment in 1993.
These changes also saw the birth of the National Fisheries Authority which replaced
the Department of Fisheries and Marine Resources. The restructuring of the National
Fisheries Authority as a statutory authority was completed in 1999.
The primary focus of the fisheries sector reform is the sustainable use and
management of commercial fisheries resources. The narrow focus of the fisheries
sector on commercial fishing activities limits its impact on generic marine biological
resources.
One of the visions of the National Fisheries Authority is to develop, promote and
strengthen its relationship with provincial governments because it believes that
fostering a cordial relationship with the provinces will lead to the sustainable use and
management of the country’s fisheries resources. In addressing this issue and also to
ensure clear demarcation of powers, roles and responsibilities between the two levels
of government, the National Fisheries Authority has embarked on a plan to engage the
participation of maritime provinces in fisheries management through agreements in
the form of memorandum of understandings (MOU). Several MOUs have now been
completed between the National Fisheries Authority and some of the provinces.
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The limited focus of the fisheries policy and law means that local-level governments
and to some limited extent the provincial governments can develop their own generic
marine resources law and policy to regulate marine biological resources in their areas
of administration. In this regard, some of the provinces, such as Manus, Morobe and
East Sepik have proceeded to develop their own provincial fishery laws. One locallevel
government, namely, the Talasea Rural Local-level Government has also
commenced developing a local marine law pursuant to section 44 of the Organic Law
on Provincial Governments and Local-level Governments to regulate access,
sustainable use and management of its marine biological resources.
3.3.5 Transport
The government recently adopted the National Transport Development Plan (Policy)
2001 – 2010. This policy is comprehensive and takes an holistic approach to
improving the transport system in PNG, by land, air and sea. The National Transport
Plan sets out in detail the various transport programs of the government with specific
financial commitments and institutional changes. According to the National Transport
Plan, the government proposes to spend about K6 billion over the next 10 years to
improve the country’s transport system.
A critical component of the National Transport Policy is the recognition of the
concept of sustainability and environmental principles in the implementation of the
transport policy. The policy seeks to improve the national transport system so that it
will promote the sustainable development of the country. The document also makes it
clear that environmental principles such as the precautionary principle and EIA will
be promoted by the government in the construction of transport infrastructure. A
special mention is also made of oil pollution prevention strategies by the policy.
The adoption of the National Transport Policy has resulted in the creation of several
institutions through legislation. The four notable ones being the Civil Aviation
Authority (established by the Civil Aviation Act 2000); the National Road Safety
Council (created by the National Road Safety Council Act 1997); the National Roads
Authority and the National Maritime Safety Authority. The two latter institutions
were recently created by two new pieces of legislation in 2003 namely; the National
Roads Authority Act 2003 and the National Maritime Safety Authority Act 2003.
Although the Transport Policy does not expressly embrace biodiversity issues, the
adoption of environmental principles in transport development programs and the
specific focus of the policy on oil pollution are encouraging because the
implementation of the environmental principles and prevention of oil pollution will
contribute towards biodiversity protection and sustainable use. The National Roads
Authority Act does contain a specific directive under section 6(1)(m) for the Authority
to promote and strengthen environmental capacities within the institution and the
sector. Also with the implementation of the new Environment Act 2000, transport
development projects would fall within the ambit of the legislation. The legal
requirements promoted by these two laws will enhance biodiversity protection within
the transport sector.
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3.3.6 Tourism
This sector has a huge potential to contribute significantly to the development of the
country. However, several factors have contributed to the stagnation of this industry.
These problems include: (1) law and order; (2) the high costs of travelling in the
country and other associated costs such as accommodation; (3) the lack of
government support for this industry through appropriate policies and legal
framework and (4) political interference in the regulatory body responsible for
promoting tourism in PNG. These problems have deterred many potential tourists
from visiting PNG and consequently, the loss of much needed revenue for the
country.
The government has resolved to solve some of these problems through the
introduction of a tourism policy which will provide the blueprint for the development
of the country’s tourism industry. In 2001, a draft Tourism Policy was circulated for
comment. The so-called draft policy is very brief and outlines the government’s goals
for sustainable tourism. The government has announced that it would like to adopt the
tourism policy this year (2004). The draft document however, requires a lot more indepth
analysis to make the policy more practical.
3.3.7 Agriculture
More than 85% of Papua New Guineans live in the rural areas of the country. These
people live off their land, producing mostly subsistence crops. The main source of
income for these rural dwellers is agricultural cash crops. Agriculture therefore, plays
a pivotal role in the lives of these rural people and the national economy. Given its
importance to the people and the economy, successive governments have over the
years tried to concentrate their efforts in this sector through the introduction of several
agricultural policies aimed at harnessing the potential of the sector.
In 1996 the government introduced a comprehensive agricultural policy entitled
‘Agriculture Policy 1996 – 2000’. This policy caused more technical and structural
problems than solve agricultural problems. This policy was reviewed and a new
agriculture policy entitled ‘National Agriculture and Livestock Policy 2001 – 2012’
was consequently approved in 2002. This policy is framed against the backdrop of the
Medium Term Development Strategy 1997 – 2002 and the National Charter on
Reconstruction and Development 2000 – 2002. Both these documents contained the
government’s vision for national and rural development through institutional and
physical infrastructure reform.
The main policy areas being addressed by the new Agriculture Policy are:
• Sectoral policies relating to economic and other policies specific to the sector;
• Commodity policies relating to policies focused on expanding production on a
sustainable basis;
• Other development policy issues relating to inter-sectoral and interacting
policies and compliance; and
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• Monitoring and evaluation policies relating to performance requirements of
the sector.
Generally, the overall policy thrust is to increase sustainable production and
productivity through improved research, extension and development.
In the area of research and development of PGRFA, the Agriculture Policy seeks to
promote this activity through collaboration which would lead to accelerated
productivity. The government seeks to strengthen the work of special agricultural
research institutes such as NARI, the PNG Oil Palm Research Association, Cocoa and
Coconut Research Institute and the Coffee Research Institute.
Other organizations involved in agriculture research such as the PNG University
of Technology, Trukai Industries, Fresh Produce Development Company, Wau
Ecology Institute, Technical Missions from Mainland China and The Republic of
China on Taiwan will also be encouraged to research into food crops and develop
alternative food and cash crops, spices and essential oils.
All these institutions will be encouraged to develop cutting edge technologies to
enhance sustainability in the agriculture sector.
The Agriculture Policy affects biodiversity in two main ways. The first is through the
genetic modification of food crops (biotechnology). And second, the introduction of
new food crops in the country. The single most important concern for the application
of these two methodologies is the biological consequences of these crops when they
are released into the environment. Issues of contamination, ethics and IPR are also
crucial in the application of these two approaches. These are issues which need to be
dealt with under a separate policy and legislation.
The goals of the Agriculture Policy will be strengthened and enhanced by the new
MTDS 2003-2007 once the MTDS is adopted by the government. The current
government has adopted as one of its core development strategy for the period 2003-
2007 – the promotion of agriculture. The government intends to provide a number of
incentives for the expansion of the agriculture sector including transport infrastructure
maintenance, arresting the law and order situation in the country, provision of microcredit
and marketing support. These initiatives will be translated in the annual budgets
which will show an increased financial support for these areas.
3.4 Policies on ABS
The issue of access benefit sharing has been separated from the general discussion on
biodiversity because of its complexity. ABS involves issues of access meaning PIC,
benefit sharing and also IPR. The seven national policies which were discussed above
do not make either explicit or implicit reference to these issues. The policy review
has revealed that there is only one policy which makes special mention about
ABS – the draft Sustainable Mining Policy 2003. The draft mining policy is
considered in the context of the energy sector. Thus, the discussion that follows looks
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at the general energy sector and then specifically at the draft Sustainable Mining
Policy.
3.4.1 Energy
PNG has an abundant source of solar energy, biomass and hydropower and also
significant geothermal, wind, wave and ocean thermal resources and petroleum
resources. The majority of Papua New Guineans’ principal energy use is biomass for
cooking especially in rural areas and for drying copra and cocoa for export. Petroleum
imports for transportation and electricity generation form the critical portion of use.
These imports contribute immensely to the nation’s trade imbalance. This trade
imbalance will however, hopefully be reversed when proposed oil refineries come
into operation.
The major challenge for PNG is, however, to harness these resources for the
sustainable development of the country. How can PNG wisely and efficiently use
local and imported energy resources to enhance its people’s development and
prosperity Realizing the importance of the sector to the sustainable development of
the country, the government began in the 1990s to carefully consider both the future
role of the energy sector in the nation’s development and, importantly, the approach
that the government would take in determining that role. With the discovery of gas
and oil, impetus to transform the petroleum policy and legislative framework set up
since independence took on a new dimension.
In 1993, the government introduced a white paper on gas utilization. The thrust of the
policy is economic utilization of this resource with maximum benefits going to the
people of PNG. The new policy led to the enactment of the Oil and Gas Act 1998.
This policy and legislative change led to the Department of Mines and Petroleum
being split into two separate entities – the Department of Mines and the Department
of Petroleum and Energy.
In the light of this new initiative, the government also established the National Gas
Corporation to control and monitor the exploitation of the country’s natural liquefied
gas. For minerals, the State set up a company - Orogen Minerals to control its
interests while the Mineral Resources Development Corporation (MRDC) was set up
to control the interest of landowners. Orogen has now been sold to Oil Search Ltd
while MRDC is currently undergoing review.
In the late 1990s, the Department of Petroleum and Energy began to develop a draft
energy policy to provide the framework to harness PNG’s energy resources. In March
2001, the Department through its Energy Division completed the draft energy policy
entitled ‘National Energy Policy Guidelines’.
The National Energy Policy Statement and the National Energy Policy and
Guidelines
Through the implementation of the National Energy Policy Statement, the
Government is seeking to increase the contribution of the energy sector to the
welfare of the nation in an efficient, equitable and sustainable manner, while
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working in unison with other national economic and social development policies.
The National Energy Policy Statement sets out the Government’s policies for the
planning and management of the nation’s energy sector over the next 10 -15
years.
It provides a predictable and explicit framework within which energy sector
participants can make informed planning and investment decisions and, manage
their operations for the long term. The Statement also defines the nature and
extent of Government’s control and management of the energy sector.
The National Energy Policy and Guidelines restates Papua New Guinea’s energy
policies in conjunction with detailed guidelines that provide the blueprint for the
Government’s Energy officials in their formulation and management of work
programmes over the life of the Statement. Once the Energy Policy Statement
and Guidelines have been adopted by Government, the task of drafting and
implementing effective programmes will become much easier.
While some of the policy components may take longer to achieve than others, it
is important that Government remain committed to its Statement as a whole and
most importantly, provide the institutional resources necessary to achieve its
policies. The latter cannot be over emphasised; success in the energy sector over
the long term will be the direct result of human resource development and
institutional maturity rather than specific projects and technological
developments.
In many cases, the policies and the guidelines will appear self-evident. However,
it remains essential for Government to have them committed to paper and
adopted at the most senior level if they are to become, and to remain, the focus of
Government’s longer term planning and management of the national energy
sector.
The draft Energy Policy has not yet been submitted to the government for
endorsement. If it is endorsed by the government, it will set the roadmap for the
sustainable use of the country’s energy resources. A key element of the draft policy is
the promotion of environmentally sustainable energy resources use. The policy clearly
vests the Department with a special responsibility to:
• Monitor, review and provide recommendations on future developments in
public and private energy sector infrastructure. In particular, encourage public
sector agencies to adopt a least-cost, financially and environmentally
sustainable strategy to meeting energy demand;
• Formulate and secure proposals for donor assistance where appropriate, and
screen out those lacking in technical maturity, economic viability or
environmental sustainability;
• In conjunction with other Ministries and agencies, develop, implement and
monitor regulations and standards governing the energy sector, particularly
concerning the safety of petroleum handling and storage facilities, and
environmental guidelines for the petroleum sector, such as oil spill
contingency plans and waste oil disposal; and
• Work closely with the relevant Government and non-Government
organisations on the environmental aspects of energy projects and
programmes.
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The Department will also be tasked to develop and assist in implementing energy
conservation and efficiency programmes for the government, commercial sector and
the public, including education campaigns and the evaluation of energy-efficient
appliances and technology; and monitor and review the development of new and
renewable energy resources and technologies, particularly with regard to photovoltaic,
solar thermal technology and biomass.
In the same year (2001), the Petroleum Division of the same department also released
a draft Policy Handbook on Petroleum. The Policy Handbook provides a brief outline
of the processes involved in developing and managing the country’s petroleum
resources.
The Independent State of Papua New Guinea (PNG) considers the development of
the State’s petroleum resources to be amongst its highest priorities. The State is
committed to the development of these resources in a way, which maximises the
benefits of petroleum production to the people of PNG, while minimising social,
environmental and economic costs. At the same time, the State recognises the need
to develop its petroleum resources in conjunction with international oil companies.
It further recognises that to attract major overseas investors, it must offer a stable
economic and political environment, which allows the investor the opportunity to
make a reasonable return on exploring for and developing oil and gas resources in
Papua New Guinea.
Unlike the draft Energy Policy the Policy Handbook is basically an information paper
and not the government’s policy. The document is still in its draft form and since
2001, has not been endorsed by the government.
In the mining sector a new Mining Act was introduced in 1992 to replace the preindependence
mining legislation. After almost a decade the government is now
seriously developing a new mining policy in close collaboration with the World Bank.
The draft Sustainable Mining Policy is quite innovative as it attempts to introduce the
concept of sustainability in the mining sector. The greening of the sector will also see
the replacement of the Mining Department with a Mineral Resources Authority. Two
interesting aspects of the draft mining policy which are relevant for consideration are:
1 Prior informed Consent; and
2 Benefit Sharing
The draft policy promotes the integration of the PIC concept in the mining process at
the earliest point of intervention – exploration.
Under the draft policy, PIC will become a mandatory aspect of the mining
process. Unlike in the past where PIC would be critical prior to development,
the draft policy seeks to make it mandatory for PIC to be obtained prior to
actual exploration.
The draft policy also acknowledges that PIC must be based on “informed
consent”, thus, it seeks to create a register of independent consultants who can
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e engaged to provide independent advice to the landowners to enable them to
make an informed decision.
Access to the mineral resources will be regulated through the existing legal
framework. That is, through the Development Forum and a series of contractual
arrangements between the key stakeholders. However, PIC will be the determinant
factor for access.
In relation to benefit sharing, the draft policy seeks to introduce fundamental
conceptual and practical changes to the existing benefit sharing regime.
A key component of the new benefit sharing arrangement is that landowners will
be identified through social mapping studies and each and every landowner will
be paid land compensation directly. This compensation payment to each of the
individual landowner can also be paid in kind or part of it can be used to buy
shares in the mining venture.
The changes proposed by the draft policy will impact on the Mining Act, the Organic
Law on Provincial Governments and Local-level Governments (OLPGLLG) 1995, the
Provincial Governments Administration Act 1997, the Local-level Governments
Administration Act 1997 and the Environment Act 2000. The policy and legislative
changes will most likely follow the path taken by the Oil and Gas sector (which is
considered below in Part 4).
The draft mining policy is currently under review. It is envisioned that it will be
adopted by the government and the Parliament this year (2004).
3.5 Conclusion
The policies which have been reviewed reveal that biodiversity issues are considered
in the development programs of PNG. Biodiversity issues are spread out thinly
throughout the various sectors. Some policies, such as the National Goals and
Directive Principles; the Environment Policy; Agriculture Policy; Agro-Forestry
Policy; Sustainable Mining Policy and Forestry Policy do make explicit mention of
certain components of biodiversity and to some extent biodiversity generally. Other
policies such as the MTDS; the Transport Policy; Health Policy and Tourism Policy
make implicit references to it.
The underlying issue is the level of and the weight the government through its
agencies gives to biodiversity in the development planning process. The review shows
that biodiversity issues must be seriously integrated into the planning processes. And
when they are integrated in the planning processes, the link between the various
development goals and biodiversity protection and sustainable use must be clear,
transparent and more importantly, attainable.
The other option is of course, to develop a specific national biodiversity policy. This
national biodiversity policy when developed can cover a wide range of issues ranging
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from ABS to IPR. This is one of the major tasks of the new institution that may be
created as a result of this project.
The introduction of an integrated biodiversity policy is envisioned by the CBD and
the other treaties considered above. The CBD and especially Agenda 21 require the
adoption of NBSAP. To this date PNG has not formulated or accepted a NBSAP. The
opportunity now avails itself for PNG to utilize. The adoption of a NBSAP would
enable PNG to meet its core obligations under the CBD, Agenda 21 and JPOI.
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4. Papua New Guinea Law on Biodiversity
4.1 Introduction
Given its unique environment and its natural resources, PNG has proven itself to be a
very strong advocate of international co-operation. Being the largest developing
country in the South Pacific region, PNG sees its participation in international
initiatives as a statement of its status in the region. This is more so in the area of
environmental initiatives because of the country’s unique biodiversity and rich natural
resources. The country has therefore, participated in a number of important global and
regional environmental conferences and ratified a number of international and
regional treaties relating to the environment and more recently sustainable
development. Some of the MEAs which PNG has either adopted or ratified are
enumerated in Table 5. The table also indicates the relevant State agency responsible
for these treaties. (Annexure 2 contains a full list of the relevant State agencies and
how their roles may impact on biodiversity).
Table 5:
Some of the MEAs adopted by PNG
Treaty Year PNG
Sign
PNG
Ratif
Treaty
Focus
Lead Agencies
Kyoto Protocol 1997 1999 2000 Climate DEC/NFA/ PINBio
Change
Waigani Convention 1995 16/9/95 Pollution DEC/Fisheries
Auth/Transport Dept
UNFCCC 6/92 16/3/93 Climate
Change
DEC/NFA/FRI/DNP/
FRI/PINBio
CBD 1992 6/92 16 th
March,
Biodiversity DEC, DNP, UPNG,
AG, PINBio
1992
Basel Convention 1989 16/7/95 Pollution DEC/Transport Dept
South Pacific
18/8/90 Oil Pollution Transport Dept/DEC
Dumping Protocol
Apia Convention 1986
18/8/90 Biodiversity DEC/ PINBio
Pollution Emergency
18/8/90 Oil Pollution DEC/Transport Dept
Protocol
Nuclear Free Zone 1985 12/1/2/86 Nuclear DEC/Transport Dept
Treaty
weapons
UNCLOS 1982 10/12/8
2
14/1/97 Marine
Biodiversity
Mining/Fisheries
Auth/AG/MSRC/
PINBio
PNG has also gone a step further by converting some of these international treaties
into domestic law. According to the Constitution, the provisions of international
treaties will not be applied in PNG if they do not comply with section 117. Section
117 of the Constitution provides procedures for the ratification of treaties and also the
manner in which treaties can be transformed into domestic law. Table 6 gives as an
example five MEAs which have now been adopted into PNG domestic law.
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Table 6:
International Treaties Converted into National Laws
TREATY
DOMESTIC LAW
1 Convention on International Trade in International Trade (Fauna and Flora)
Endangered Species of Wild Fauna and Flora
1973
(Amendment) Act 2003
Crocodile Trade (Protection) Act, Chapter 213
2 International Convention on the Prevention of
Marine Pollution by Dumping of Wastes and
Other Matter 1972
Dumping of Wastes at Sea Act 1979, Chapter
369
3 Vienna Convention on the Protection of the
Ozone Layer 1985 and the Montreal Protocol on
Substances that Deplete the Ozone Layer 1987
Environmental Contaminants (Amendment) Act
1994 (Repealed by Environment Act 2000)
4 International Convention for the Prevention of
Pollution of the Sea 1954 (amended 1962,
69,71)
5 International Convention on the Regulation of
Whaling 1946
Prevention of Pollution of the Sea Act 1979,
Chapter 371
Whaling Act, Chapter 225
PNG has proven its commitment to biological diversity by ratifying the two Rio
treaties and also the adoption of Agenda 21 and the Rio Declaration which were
endorsed at the UNCED. However, the legislative changes indicated above were
undertaken mostly prior to 1992. Thus, how has PNG performed since 1992 in the
field of environmental law-making
The period between 1992 and 2004 shows that PNG has responded quite slowly to the
global challenges being posed by many of the modern MEAs. In the area of
environmental law, PNG has relatively been quiet. The only milestones in this area
are the enactment of four pieces of legislation namely: (1) the Organic Law on
Provincial Governments and Local-level Governments 1995 which delegates
environmental law-making to local-level governments; (2) the Fisheries Management
Act 1998; (3) the Environment Act 2000 and (4) the International Trade (Fauna and
Flora) (Amendment) Act 2003. The Organic Law vests environmental law-making
powers on local-level governments – the first point of State intervention. The
Fisheries Management Act adopts very important principles of sustainable
development as the cornerstone for the development of the fisheries sector. The
Environment Act embraces many environmental management principles to control
development in the country and the lat legislation adopts new principles and the
updated lists under CITES.
These laws and those that were enacted prior to the passage of these laws were passed
by Parliament in an ad hoc manner and applied to specific components of biological
diversity. In the international arena, there has been a paradigm shift away from the
piecemeal approach to environmental law-making and biodiversity management.
International attention is now more focused on a holistic approach to dealing with
global environmental issues. PNG must also make this paradigm shift. The adoption
of an overarching legislation on biodiversity by the Parliament would most certainly
be appropriate at this point in time. This legislation would embrace a national strategy
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such as NBSAP, in dealing with the various international obligations under the
relevant MEA and also target the issues of ABS and IPR.
4.2 Laws on Biodiversity
Under this heading several of the laws that relate to biodiversity generally are
identified and reviewed. There are some pieces of legislation that have special bearing
on biodiversity, but fall under the heading of research and development. The relevant
provisions of these laws are discussed in Part 5 of the paper.
4.2.1 National Parks Act
The National Parks Act was a pre-Independence regulation. It was enacted into
legislation in 192. The objective of the National Parks Act is twofold. It is intended to
provide for the preservation of the environment and national heritage by: (1) the
conservation of sites and areas having a particular biological, topographical,
geological, historical, scientific or social importance; and (2) the management of
those sites and areas, in accordance with the fourth goal of the National Goal and
Directive Principles.
The use of the terms such as biological, topographical, geological, historical scientific
and national inheritance by the Act may be traced to the UNESCO Convention for the
Protection of the World Cultural and National Heritage. Although PNG was not a
party to the World Heritage Convention when the treaty was adopted, it has now
ratified the treaty and is thus, a party to that treaty.
A national park is created under section 4(1) of the Act. Section 4(1) reads:
The Head of State, acting on advice, may, by notice in the National Gazette,
commit to the care, control and management of the Director an area that has
been reserved or deemed to be reserved under section 49 of the Land Act 1996
as a place for:
(a) the recreation and amusement of the public; or
(b) a national park; or
(c) a botanical or zoological garden; or
(d) a reserve or sanctuary for the protection of flora and fauna,
or for related purposes.
In essence this provision enables the Head of State acting on advice, and by notice in
the National Gazette, to commit to the care, control and management of the Director
of National Parks an area that has been reserved under section 49 of the Land Act
1996 as a place for a national park. Section 4(1) permits the Governor-General only to
commit the place to the Director of National Parks. Unless the Governor-General
commits the place to the Director of the National Parks a place reserved as a park
cannot be deemed a national park.
The definition of area as defined under section 2 of the Act is:
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(a) a site, place or region; and
(b) a building, or other structure including equipment, furniture, fittings and
articles associated with or connected with such building or other structure;
and
(c) ……………………………… and
(d) in relation to the conservation of an area - the immediate surroundings of
the area.
The area to be reserved under section 4 is therefore not confined only to the
reservation of national parks as the title of the legislation suggests, but rather extends
to buildings and structures which have historical and cultural significance, amusement
and recreation areas for the public, botanical or zoological gardens and sanctuaries for
the protection of flora and fauna. Reserves for the protection of flora and fauna are
also established under the Fauna (Protection and Control) Act.
Section 4 of the Act empowers the Head of State to commit a reserved land, acquired
or leased for that purpose under section 49 of the Land Act 1996, to the Director of
National Parks as a: (1) recreation and amusement park; or (2) national park; or (3)
botanical or zoological garden; or (4) reserve or sanctuary for the protection of flora
and fauna.
Section 49 of the Land Act 1996 enables the Minister for Lands to set aside certain
areas of acquired or leased land for a specific propose. This section must however, be
read with section 10 of the same legislation. Section 10 allows the State to purchase
or lease land from the customary landowners. It would follow that the State can lease
a portion of land from the customary landowners and reserve it under section 49 for a
purpose specified under section 4 of the National Parks Act. A national park can also
be established on land which is given as a gift, devise, or bequest property to the
State. Under the auspices of the National Parks Act, a number of national parks
(Baiyer River (Sanctuary) Park, Variarata National Park, Mt. Gahavisika National
Park, Cape Worm National Park, Kokoda Trail National Park, MacAdam National
Park, Moitaka Wildlife (Sanctuary) Park and two botanical gardens (Lae Botanical
Garden and Port Moresby Botanical Garden) were established around the country.
An important hallmark of section 4 is that it actually allows for the reservation of
areas which have significant floral value. The National Parks Act is the only
legislation which actively provides the avenue for the establishment of floral reserves.
National parks are controlled and managed by the Director of National Parks. The
duties of the Director are spelt out in section 8 of the Act. The functions of the
Director include: (1) controlling, managing, and developing any area committed
under sections 4(1) and 5; (2) encouraging public use and enjoyment of the areas
under his or her care; (3) recommending to the Minister matters concerning areas
under his or her control and promoting the concept of national parks and the
conservation of natural resources. These duties are restricted only to those areas
established under section 4.
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The National Parks Act permits the Director to erect park use buildings and to
develop the national park only for public use and enjoyment. Unlike in other
jurisdictions where development of resources such as mining and forestry occurring in
national parks under prescribed circumstances, the National Parks Act is silent on
these issues. (However, see the discussion under the Mining Act, and the Oil and Gas
Act in relation to this issue below). Under section 7 (1)(a) of the National Parks
Regulation:
A person on a reserve, must not dig, cut, collect, remove or interfere with any
sand, soil, clay, gravel, rock mineral, shell, fossil, timber (whether or not living),
humans or other natural substances or objects whether on or under water,
except with the consent of the Director.
It is suggested that in relation to minerals, this provision applies only to the process of
investigation by an individual. And such an investigation is probably restricted to
personal and educational purposes. The cutting of timber permitted in this proviso is
also limited to possibly domestic purposes, for example cooking. It is not directed at
commercial logging. A vital element of this provision is that the Director must give
his or her consent before an activity can be undertaken. The exercise of his or her
discretion is not subjected to any formal guidelines except that his or her discretion
must be exercised within the scope of his or her responsibilities as enshrined under
section 8 of the legislation.
The National Parks Act and the Regulation provide rules which restrict certain forms
of activities in the national parks. However, the Act and the Regulation fail to provide
any penalty for breaches of the Act. The rationale being that many of the restricted
activities are prescribed by the Criminal Code Act.
This legislation gives effect to the World Heritage Convention. It amicably provides
for the protection of biodiversity and does allow for sustainable use of biological
resources found in national parks. The number of national parks for the protection of
biodiversity and its sustainable use can be increased if Section 49 of the Land Act and
section 4 of the National Parks Act are fully and carefully implemented by DEC and
the Lands Department. Moreover, this legal mechanism can also be explored to
nominate some of the sites in PNG such as the Kuk Agricultural Site for listing on the
World Heritage List.
4.2.2 Conservation Areas Act
The objective of the Conservation Areas Act is similar to those of the National Parks
Act. They are in fact in like terms. This situation occurred probably as a result of the
fact that the National Parks Act was still a pre-Independence regulation.
The legislation establishes a National Conservation Council under section 4,
comprising of five persons who should have technical and specialized knowledge in
environmental matters. Since the enactment of the legislation in 1978, the government
failed to establish the National Conservation Council. It was only in 2003 that the
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Council was established. The establishment of the Council now means that the Act is
now in force.
The functions of the National Council as provided by section 9 include:
(a) to furnish advice to the Minister on matters relating to conservation areas,
including action to conserve and improve conservation areas, and
(b) consider any proposals for development affecting, or in the vicinity of a
conservation area or a proposed conservation area, and
(c) to advice the Minister on the formulation of rules applicable to conservation
areas, and on the administration and control of conservation areas.
Unlike the National Parks Act, the Conservation Areas Act provides a longer route
under section 12 for declaring a conservation area. The Minister has to cause a
recommendation to be prepared for an area to be declared a conservation area if he or
she thinks the area has particular biological, topographical, geological, historical,
scientific or social significance or value to the present and future generations.
Section 12
(1) Where the Minister is of the opinion that an area has particular biological,
topographical, geological, historical, scientific or social significance or other special
value for the present community or for future generations, he may cause to be
prepared a recommendation that the area be declared a conservation area.
(2) A person, group of persons or authority may make a written request to the Minister
to give consideration that an area be declared a conservation area.
(3) A recommendation prepared under Subsection (1) may include-
(a) a description of the area including boundaries; and
(b) an inventory of-
(i) persons living in the area; and
(ii) landownership within the area; and
(iii) use to which the land is put within the area; and
(iv) feature of special significance found within the area; and
(c) any other factors contributing to the need for conservation of the area.
(4) A recommendation prepared under Subsection (1) shall be made available for
inspection at all reasonable times at-
(a) the Department of Environment and Conservation; and
(b) the office of the provincial government body of the province in which the area of
the subject of the recommendation is situated; and
(c) the office of the Local-level Government in the area the subject of the
recommendation.
It is essential to note that the ‘area’ needed to be conserved as envisaged by section 12
is not restricted only to areas of biological, topographical, geological or social
significance but extends to the conservation of structures of historical value.
The structure of Section 12 is misleading. Subsection (2) should have come before
Subsection (1). The express intent of the Parliament is that a person or group of
persons or an authority must make the initial request to activate the process
under the legislation. They submit a request to the Minister to declare an area a
conservation area. If such a person, persons or authority do not make such a request,
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the Minister cannot arbitrarily cause a recommendation to be made to the National
Executive Council to declare an area a conservation area.
When the National Parks Act is compared to this legislation, the focus of the
Conservation Areas Act becomes vividly clear – it is aimed at biological, historical
and scenic area located on customary land. The National Parks Act is aimed at State
land and customary leased land, whereas, the Conservation Areas Act targets
customary land.
It then follows that the underpinning of the Conservation Areas Act would be
implemented at the behest of traditional customary landowners. When this legislation
is also compared with the Fauna (Protection and Control) Act – the variation between
these two laws is very clear. The latter legislation empowers the State to use protected
fauna as a pretext to declare customary land as sanctuaries (usually after paying
compensation), protected areas or a wildlife management areas (WMA). The
Conservation Areas Act is very unique as it empowers the landowners to make
decisions about their land themselves. This characteristic of the legislation
distinguishes it from the National Parks Act and the Fauna (Protection and Control)
Act.
A very small opening is allowed for State intervention at the earliest stages of the
declaration of a conservation area. Section 12 expands the category of persons making
a request to the Minister to also include - “an authority”. Section 2 of the Act defines
the term as:
“authority” includes any Minister, Departmental Head, head of a statutory
authority or body, member of a Provincial Government, Local-level
Government or Local-level Government Authority
This definition further expands the number of persons who are eligible to make a
request to the Minister. The following persons have been added to the category of
persons specified by section 12(2):
• A Minister
• A Departmental Head
• The head of a statutory authority
• Member of a provincial government
• Local-level Government or a Local-level Government Authority
It would follow that the State through its agents (listed above) can make the initial
request without the PIC of the landowners if the area proposed to be protected is of a
biological, topographical, geological or historical significance to the country. If this
route is taken, the operation of section 12(3) becomes significant. Section 12(3) is a
proviso which seeks to protect the traditional landowners from exploitation by the
arbitrary taking of their land for purposes of conservation under the legislation. This
provision makes it mandatory for an ‘authority’ making a request under Subsection
(2) to conduct an inventory of the proposed protected area. The implementation of
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this process would imply that PIC must still be obtained from the customary
landowners.
The interest of customary landowners is also protected through the consultative
process envisioned by the legislation under section 14. According to this provision,
customary landowners and members of the public can make representations to the
Minister about their views on the proposed protected area. They must however, make
this representation within 90 days. The common problem associated with mandatory
time limits is that it is not usually sufficient for the landowners who live far away
from the capital Port Moresby or the nearest towns. Where they fail to make their
views known to the Minister within the time frame their views may not be taken into
account.
After the expiry of the 90 days the Minister makes a recommendation to the National
Executive Council. The National Executive Council either rejects or accepts the
recommendation under section 15 of the Act. Where it approves the submission it
then advises the Head of State accordingly. The Head of State then declares the area
as a conservation area. The Minister is then required to open and keep a register of
conservation areas.
A Conservation Area Management Committee (CAMC) is consequently established
under section 25 to manage the conservation area. The membership of the CAMC
shall consist of not less than three persons who represent the interests of the land
owners of the conservation area, the provincial government and local-level
government of the area where the conservation area is situated. Section 39 of the Act
provides for the appointment of rangers who are responsible for the enforcement of
the conservation area rules and the Act.
According to section 32, the development or alteration of existing use of land in the
conservation area is restricted under the Act. Any person wishing to develop or alter
existing use of land has to apply and obtain approval from the Minister. Section 31
clarifies that:
Section 31
(1) An owner or occupier of land in a conservation area shall not develop, alter or permit
the development or alteration of the existing use of that land except-
(a) in accordance with the terms of the management plan for that conservation
area; or
(b) in accordance with the written approval of the Minister
(2) Where a notice of recommendation under section 12(1) has been given in respect of
an area, an owner or occupier of land within that area shall not develop or alter or
permit the development or alteration of the existing use of that land except with the
written approval of the Minister, until-
(a) the land has been declared a conservation area, when provisions of Sub-section
(1) shall apply; or
(b) notice under Section 16(2) has been given that the land not be declared a
conservation area
A person or an occupier of the land can develop or alter the land the subject of a
conservation area if the activity fulfils one of the conditions under this provision. The
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activity must either comply with the terms of the management plan or be approved by
the Minister. Where a recommendation of the Conservation Council under section
12(1) is being processed, all existing activities on the said land are ‘frozen’ by this
provision. When the land is declared as a conservation area, all the activities must
then comply with the provisions of the Act.
The issue is what is ‘alteration’ And what is its scope, or in other words what sort of
act can qualify as alteration The Act does not offer a solution to these issues.
If the land is declared as a conservation area, and an application has been made under
section 32, the application must include a plan or plans of the proposed development
and the particulars of the adverse effects to the environment. These requirements also
apply equally to all the organs of the State and the owners of land within the
conservation area.
The proponent is also required under section 42 to take into account provisions of any
other laws which are relevant to the proposed project. This includes the requirements
under the Environment Act 2000. When considering the development proposal
submitted pursuant to section 32, the Minister is required to seek the advice of the
CAMC, the Conservation Council, any other relevant authority, body or person and
the customary land owners. The Minister may also publish the nature of the
application for public comment. The issue is: what sort of development is
permissible under the Act It is suggested that developments in conservation areas
are restricted only to projects which enhance the conservation of the area and includes
projects such as road work and buildings for the use of the CAMC or tourists, but
does not include projects such as mining, forestry and agriculture development
projects. The answer to this question has not been provided by the legislation.
The other issue is should the customary landowners seek the approval of the Minister
for any activity (including gardening and hunting) which will affect the land in the
conservation area. According to section 41, if they do not obtain the relevant
approvals, they are liable to a fine of K500.
An issue which has not been adequately addressed by the legislation is the question of
existing interests in the land which would be declared as conservation areas. It is
suggested that section 31 ‘freezes’ all existing customary interests in the land for
which a recommendation has been made pursuant to section 12(1). These interests are
either revived or remain suppressed after a decision had been made about the land
under section 16. Where the land is not declared as a conservation area the existing
rights are revived and continue to prevail as if they had not been affected at all.
However, if the land is declared as a conservation area these interests can only be
revived if they comply with the provisions of the Act. If the interests do not comply
with the provisions of the Act they will remain dormant.
It is possible to argue that where there is a logging or mining operation or other major
economic activity in the area the subject of a recommendation under section 12(1)
these operations will not be affected. One of two options can be taken by the National
Executive Council. First it can reject the recommendation on the grounds that the
project is essential for the development of the area and a source of revenue for the
country, or it can limit the area of operation and the duration of the project. If the
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government chooses the second option, it must be prepared to pay compensation to
the developer of the project. The Act does not provide for such a mechanism, as it has
not been able to anticipate this situation.
Another important issue which has not been addressed by the legislation is: the
opposition of customary landowners to the declaration of a protected area if an
authority makes the request to the Minister. The government may view the
protection of a proposed area as important for the country. But if the customary
landowners refuse to “offer” their land for this purpose, can the government proceed
with the proposal And if it declares an area as a conservation area without the
consent of the landowners, should it pay compensation to the landowners The
legislation is silent on these issues. It is possible to argue that the arbitrary declaration
of a conservation area is not envisioned by the Act because such a process already
exists under the National Parks Act and the Fauna (Protection and Control) Act. The
scheme of the legislation promotes the close consultation of landowners.
Where there is stiff opposition from the customary landowners, the government may
initiate the compulsory acquisition process under the Land Act or impose restrictions
on the use of the land pursuant to section 53(5)(f) of the Constitution. Section 53 of
the Constitution protects owners of property against the compulsory taking of
property by the State. Subsection (5) provides exceptions to the general rule where the
State can arbitrarily interfere with the rights of property owners. One of those
exceptions is stipulated in Paragraph (f) of Subsection (5). It reads:
(5) Nothing in the preceding provisions of this section prevents—
(f) any restriction on the use of or on dealing with property or any interest
in or right over any property that is reasonably necessary for the
preservation of the environment or of the national cultural inheritance.
This provision empowers the government to impose restrictions over customary land
which has a biological, topographical, geological, historical or cultural significance.
Thus, landownership still remains with the customary landowners, but their right to
use the land the subject of a protected area can be restricted by the State.
The legislation has been designed to promote the protection of areas of biological,
topographical, geological, historical or cultural significance. The focus of the
legislation can be traced to the World Heritage Convention. Biodiversity protection
and sustainable use and the protection of sites of national significance espoused by the
World Heritage Convention is enhanced markedly by the legislation. Given that the
Act was recently brought into force, the trialling of protected areas through the
Protected Areas Consortium Initiative would prove beneficial to the country and the
landowners in the short to long-term.
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4.2.3 International Trade (Fauna and Flora) (Amendment) Act
2003
This legislation amended the International Trade (Fauna and Flora) Act. The old
legislation merely adopted the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES) which provided rules to control
international trade in endangered fauna and flora species classified under the
Convention. The International Trade (Fauna and Flora) (Amendment) Act was
enacted in 2003 to meet the country’s obligation under the CITES. According to the
CITES Standing Committee if PNG did not enact the amendment, it could have
suspended PNG’s right to trade in wildlife species because Parties to CITES had
revised the list under the Convention.
The Act controls the export, re-export and import of species protected under
Schedules 1 (formerly Appendix I), 2 (formerly Appendix II), 3 (formerly Appendix
III), 4, 5 and 6. Exports and imports of these species can only be allowed with a
permit issued by the Management Authority which under section 3A is the Secretary
for DEC.
The Schedules to the Act provide indicators for the dealing in endangered fauna and
flora. Schedule 1 contains the latest species list in Appendix I of the Convention.
Schedule 2 enumerates the latest species list in Appendix II and Schedule 3 contains
the latest species list in Appendix III of the Convention. Three new Schedules have
been created under the legislation. These are Schedules 4, 5 and 6. Schedule 4
contains a list of native species which are exempt from permit requirements and
Schedule 5 contains a list of exotic species which are exempted from permit
requirements. Schedule 6 merely adopts the text of the Convention without the
Appendices.
The revision of the legislation now means that the Minister can amend Schedules 1 to
5 of the Act without having to seek the approval of the Parliament. The new Act also
authorizes the Minister under Part 1A to appoint inspectors drawn from other State
agencies to assist DEC in the enforcement of the legislation.
The export and import of biological species covered by the Convention identified in
PNG would have to comply with the legislation. The legislation also for the first time
enables the exportation of native and exotic species without a permit under the Act.
Both Schedules 4 and 5 however, make it explicitly clear that exporters of species
listed in these two Schedules are required to obtain approvals under other relevant
legislation.
4.2.4 Fauna (Protection and Control) Act
The Fauna (Protection and Control) Act targets the control and management of
certain fauna species which are protected under the Act. It originates from the Fauna
(Protection and Control) Regulation of 1968. This Act is small in scope and yet is
very fundamental for biodiversity protection and management. It enables the Minister
to declare any fauna species as protected species and also provides for the
establishment of protected zones for the protection of certain fauna species.
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Historically wildlife areas were set aside for sporting purposes. A person would be
permitted by licence to enter the wildlife area and hunt for game. Wildlife law has
four main goals. First is to facilitate the sustained periodic harvest of wildlife, second,
regulate human behaviour, third, to favour a particular group or groups and fourth, to
respect the rights of the animals. These goals are clearly covered by the Fauna
(Protection and Control) Act.
The Fauna (Protection and Control) Act seeks to protect and control the harvesting
and destruction of fauna. The administration of the Act is vested in the Conservator
who is appointed by the Minister under section 4.
Section 6 of the Act enables the Minister to declare any fauna as a protected fauna.
This mechanism is invoked by the Minister where the fauna is rare or is usually in
danger of extinction. Any fauna so declared is deemed under section 7 as the property
of the State. The Act prohibits the killing and possession of a protected fauna.
According to section 23 the Minister is authorised by the Act to exempt a person or a
class of people from this prohibition by a notice in the National Gazette. The only
qualification is that they are required to kill and catch the fauna using traditional
methods. They are not allowed to use firearms to kill the fauna.
The Act also allows for the establishment of sanctuaries, protected areas and WMAs
under sections 11, 14 and 15 respectively. The Minister is required to gazette the
areas and the specific class of fauna that can be harvested in a sanctuary. In actual
practice most wildlife in sanctuaries are protected. Three sanctuaries (Balek Wildlife
Sanctuary, Crown Island Wildlife Sanctuary and Ranba Wildlife Sanctuary) have
been declared so far under the Act.
Protected areas are declared only for a specific class of protected fauna, while WMAs
are established for classes of protected fauna. The WMAs are managed by the
landowners and government through the Wildlife Management Areas Committees.
Wildlife Management Committees manage and formulate rules relating to the WMA.
Currently there are ten WMAs in the country which were formally established under
the legislation. These are: (1) Bagai WMA; (2) Garu WMA; (3) Maza WMA; (4)
Mojirau WMA; (5) Pokili WMA; (6) Ranba WMA; (7) Siwi-Utame WMA; (8) Tonda
WMA; (9) Crown Island WMA and (10) Balek WMA.
The Fauna (Protection and Control) Act encourages the participation of customary
owners in the protection and management of the sanctuaries, protected areas and
WMAs. The involvement of customary owners in the control and management of
these areas is an effective method for ensuring that the legislation is effectively
implemented.
On the question of development, these areas are solely for fauna protection. Major
development activities such as forestry, mining and petroleum cannot be conducted in
these areas. Projects directly associated with the proper control and management of
these areas such as roads, bridges and buildings are exempt from these restrictions.
Except for the recognition of customary rights of fishing and hunting in sanctuaries
and WMAs, the legislation is silent on the issue of existing interests. It is suggested
that because the Act is primarily for fauna protection, interests other than customary
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interests relating to hunting and fishing are extinguished by the operation of this
legislation.
In terms of biodiversity protected and sustainable use, the scope of the legislation is
limited. It relates only to a component of biodiversity – fauna. Several NGOs and the
government have acted on the fallacy that the protection and sustainable use of
biodiversity is permitted by the legislation. Some WMAs have been created over the
last two decades based on this fallacy. The relevant legislation that serves this purpose
is the Conservation Areas Act.
When the four biodiversity protection laws namely, the National Parks Act; the
Conservation Areas Act, the Fauna (Protection and Control) Act and the
International Trade (Fauna and Flora) (Amendment) Act 2003 are considered
together, the legislative scheme is clear. National Parks can only be established on
State land and leased land from customary owners. Conservation areas are to be
established on customary land at the behest or with the consent of the customary
landowners. WMAs, sanctuaries are established for the protection of State fauna. The
export of endangered species which fall under the ambit of the International Trade
(Fauna and Flora) (Amendment) Act must comply with the provisions of this
legislation. When the legal scheme is considered from this perspective, there is no
conflict in the laws nor should there, be any confusion about the objectives of these
laws.
4.2.5 Environment Act 2000
The Environment Act was enacted in 2000 and after four years, it came into force in
January 2004. This legislation repeals the Water Resources Act, the Environmental
Planning Act and the Environmental Contaminants Act. Section 4 of the Act sets out
the various objectives of the legislation which include:
• To promote the wise management of Papua New Guinea’s natural resources for
the collective benefit of the whole nation and ensure renewable resources are
replenished for future generations
• To protect the environment while allowing development in a way that improves
the quality of life and maintains the ecological processes on which life depends
• To sustain the potential of natural and physical resources to meet the reasonably
foreseeable future generations, and safeguard the life-supporting capacity of air,
water, land and eco-systems
• To ensure proper weight is given to both long-term and short-term social,
economic, environmental and equity considerations in deciding all matters
relating to environmental management, protection, restoration and
enhancement.
Several strategies have been adopted by the legislation in section 6 to enable the
achievement of these objectives. These include:
• Research on biodiversity;
• Introduction of Environmental Codes of Practice, Environment Protection
Orders, Clean-up Orders and Emergency Directions for Level 1 activities;
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• Imposition of conditionalities on licences and negotiations on environmental
improvement plans and environmental management programs for Level 2 and
3 activities;
• Public participation in projects of national interest; and
• Conduct of EIA.
In implementing these strategies, the State and its instrumentalities are vested with the
responsibility of ensuring that the following matters of national interest are taken into
account:
Section 5
All person exercising powers and functions under this Act shall recognise and
provide for the following matters of national interest:-
(a) preservation of Papua New Guinea’s traditional social structures;
(b) maintenance of sources of clean water and subsistence food sources to enable
Papua New Guineans who depend upon them to maintain their traditional
lifestyles; and
(c) the protection of areas of significant biological diversity and the habitats of rare,
unique or endangered species; and
(d) the recognition of the role of landowners in decision-making about the
development of the resources on their land; and
(e) responsible and sustainable economic development
Section 5 expressly makes provision for the protection of biodiversity and endangered
biological species. It also recognises the important role and position of landowners in
the process of development and obligates the State to involve them in the
development of natural resources located on their land. Given the scheme of the
legislation, if the State and its agents do not comply with these directives, can they be
sued for breaches of this provision In other words, if a development project is
endorsed by the government which will have an adverse impact on a significant
biological area, can this project be halted by reason of section 6
It is unlikely that a development project will be stopped for the sole reason that it
violates section 6 principles. This provision is only directory and not a mandatory
provision. Although it may be argued that the word “shall” which appears in the text,
entails a “compulsory action”, a legal proceeding relying on section 6 will not
succeed because the provision creates a procedural right and not a substantive right.
Also when this provision is read in conjunction with section 124 (which limits
proceedings under this legislation to DEC), it is clear that DEC cannot sue itself or its
officers for a violation under section 6.
The legislation imposes a general environmental duty on person (both corporate and
individuals) under section 7 to ensure that they do not engage in any activity that may
cause an environmental harm to the environment. This provision also provides a
strong defence for the alleged offender and imposes a high burden on the state to
prove the allegation or allegations against the offender. The breach of this duty is
enforceable only by DEC. According to section 124, only the Director can bring an
action under the Act. Unlike the repealed Environmental Planning Act and the Water
Resources Act which provided for legal standing to the public, this provision prohibits
the public from instituting a proceeding under this legislation.
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When dealing with biodiversity conservation and sustainable use under the
Environment Act 2000, sections 5, 6 and 7 would play a prominent role in this
endeavour. Any intervention for biodiversity would have to be at the point where:
• Environmental Codes of Practice and Environment Protection Orders are
developed for Level 1 activities;
• Licences and negotiations on environmental improvement plans and
environmental management programs for Level 2 and 3 activities are being
considered or formulated;
• Public hearing are held for projects which are of national interest; and
• An EIA is being processed.
At these critical intervention points, submissions can be made for:
• The preservation of Papua New Guinea’s traditional, historical and
social structures;
• Maintenance of sources of clean water and subsistence food sources to
enable Papua New Guineans who depend upon them to maintain their
traditional lifestyles;
• The protection of areas of significant biological diversity and the
habitats of rare, unique or endangered species;
• The recognition of the role of landowners in decision-making about the
development of the resources on their land;
• Responsible and sustainable economic development
Apart from these provisions, there are also three key subordinate legislative
enactments approved in 2002 which complement the Environment Act to protect the
environment. The Environment (Permits) Regulation 2002, Environment (Prescribed
Activities) Regulation 2002 and Environment (Water Quality Criteria) Regulation
2002 clarify some of the issues mentioned by the Act.
The first regulation sets out the forms to be issued under the legislation, the second
regulation defines activities that fall under Level 2 and Level 3 and the third
regulation prescribes water standards. Two other regulations were also approved at
the same time as the other three, namely; the Environment (Fees and Charges)
Regulation and the Environment (Council’s Procedure) Regulation 2002. These two
regulations provide for the various fees and charges required under the Environment
Act and also explain the procedure for conducting the meetings of the Environment
Council established by section 17 of the Act.
All development projects which fall under Level 2 and 3 of the Environment Act must
adhere to the requirements of the four regulations (with the exception of the
Environment (Council’s Procedure) Regulation)) as well as the legislation. The
underpinning of this legislative arrangement is the environmental management of
development.
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4.2.6 Forestry Act 1991
The Forestry Act was enacted a year before the UNCED. It was adopted on the back
of very difficult circumstances namely; the Barnett Commission of Inquiry which
exposed rampant corruption in the industry and the pressure from the World Bank.
The legislation was meant to give legal mandate to the Forestry Policy of 1990.
There are several key features of the Forestry Act which require special mention.
These are: (1) reservation of forests and trees; (2) environmental management and (3)
designation of forests areas.
4.2.6.1 Reservation of Forests and Trees
The reservation of forests and trees find their origins in the Forestry Ordinance of
1936. Under this colonial legislation, certain species of trees which were endemic to
PNG were compulsorily declared as State Trees. Similarly, certain areas of forested
land which were deemed suitable for harvest would be declared as State Forests and
reserved for a certain period of time and then harvested.
The reminiscence of this colonial practice is located in sections 3 and 4 of the Act.
Section 3 empowers the Minister to declare certain forest areas as National Forests.
The only condition is that State Forests are declared only on State land. National
Forests are usually forest plantations which are managed by the National Forest
Authority. National Forests are declared by the Minister using Form 1 as provided
under section 2 of the Forestry Regulation of 1998.
According to the Draft Five Year Corporate Plan of the National Forest Authority
(2002-2006) there are a total of 10 National Forests or forest plantations and six
privately owned forest plantations. These forest plantations are spread throughout the
country. Table 7 shows the location of the forest plantations and the volume of land
covered by each of these plantations. The total land area covered by forest plantations
is 58957 hectares.
Table 7: Existing Forest Plantations in PNG
Province Location Main Species Total Area (as
at Dec 1997)
State Forests
Ha
Central Kuriva Teak 600
Madang Madang North Coast E.deglupta, A.mangium, 900
T.brassii
Morobe Wau-Bulolo A.cunninghamii, A.hunsteinii, 12000
P.caribaea
Milne Bay Sagarai A.mangium, E.deglupta, T. 1500
brassii
New Ireland Kaut E.deglupta, Calophyllum sp.
Pterocarpus indicus
250
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Fayantina P.patula 900
Eastern Highlands Lapegu P.patula 3200
Kainantu P. patula 1000
Western Highlands Wahgi E.grandis, E.robusta, 2100
E.salinga, P. patula
Southern Higlands Orere, Kui, Baino P. patula, E. robusta 400
Total 22850
Private Forests
Madang Gogol E.deglupta, A. mangium, 10745
T.brassii
Open Bay E.deglupta, A. mangium, 12004
T.brassii
East New Britain Kerevat (customary – Tectona grandis, E.deglupta, 1900
ex State)
Ochroma lagopus
Stettin Bay E. deglupta, T. brassii, A. 1200
West New Britain
Ulamona
mangium, O sumatrana
E.deglupta
Central Brown River T.grandis 1200
(customary – ex State
Total 36107
Grand Total 58957
Source: Draft Five Year Corporate Plan of the National Forest Authority
(2002-2006)
The National Forest Authority plans to increase the number of National Forests over
the next five years. It was anticipated that in 2003, a total of 150,000 hectares of land
would be set aside as National Forests.
Section 4 of the Act states that:
The Minister may, by notice in the National Gazette, declare any trees or
members of any species or class of trees to be reserved trees.
According to section 3 of the Forestry Regulation 1998, declaring any trees or
members of any species or class of tree to be reserved trees shall be in Form 2 of
Schedule 1. A person who wilfully destroys or damages any tree or member of any
species or class of trees declared to be reserved trees under Section 4 of the Act, is
guilty of an offence and is liable to a fine of K10,000.
4.2.6.2 Environmental Management
The disastrous impact of uncontrolled logging uncovered by the Barnett Commission
of Inquiry was very compelling. It was revealed that the former forestry laws were
stand alone laws and had no clear relationship to the environmental law regime. In
light of this situation the current legislation contains a proviso which makes it
mandatory for all logging projects to be subjected to the Environment Act 2000
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(formerly Environmental Planning Act). This caveat is found in section 77 of the Act.
This provision reads:
77. Application for a timber permit.
(1) A person who is invited to do so under Section 73(1) or 75(1) may make
application for a timber permit.
(2) An application under Subsection (1) shall be—
(a) in the prescribed form; and
(b) lodged with the Managing Director; and
(c) accompanied by—
(i) the prescribed fee; and
(ii) the prescribed particulars; and
(iii) an environmental plan which has been approved under the
Environmental Planning Act 1978 (now Environment Act 2000).
Section 77 ensures that logging projects are subjected to environmental standards
promulgated under the Environment Act 2000. A timber permit holder has to also take
into account the requirements of the Environment (Prescribed Activities) Regulation
2002 and the Environment (Water Quality Criteria) Regulation 2002 which set out
additional conditions for environmental management.
The management of forest environment are promoted through a number of tools
identified throughout the policy and supported by the Forestry Act. Seven tools are
located in the legislation. The first of these is the National Forest Plan and provincial
forest plans required by sections 47 and 49 which set out the details of forest
resources management in PNG. The second is the requirement of a development
option study or feasibility study under section 62, which is to be conducted by the
National Forest Authority. This study is aimed at ascertaining the biodiversity of the
area, volume of merchantable trees, landownership and other related issues. The study
helps the Authority to determine whether or not a forest area can be commercially
exploited.
The third tool is the EIA conducted under the auspices of section 77 and the
Environment Act 2000. The fourth is the Logging Code of Practice which sets out in
detail the manner in which logging activities are to be conducted in a forestry
development project. The fifth is the provision of a project statement by the permit
holder under section 100. The sixth is the provision of a five year working plan by the
developer under section 101 describing its logging program over a five year period.
And the final tool is the annual logging plan required of the developer under section
102.
The three latter tools are to be provided by the permit holder or the developer of a
logging project. The developer is required to comply with the conditions imposed on
it under a timber permit and also these three documents.
4.2.6.3 Designation of Forest Areas
The 1990 Forestry Policy classifies different categories of forests. These are: (1)
production forests (identified as timber production areas in the long term); (2)
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protection forests (by virtue of their location, topographic constraints, and ecological,
cultural or environmental considerations); (3) reserve forests (not yet classified, but
upon which a decision will be made later); (4) salvage forests (forests to be cleared
for other purposes) and (5) land suitable for afforestation.
There are no express provisions in the legislation providing for protection forests,
reserve forests or land suitable for afforestation. The Forestry Act seems to promote
only two of these forest categories, namely; production forests and salvage forests.
Where the National Forest Authority designates an area as a production forest, the
provisions relating to the FMA and the timber permit processes are activated.
Salvage forests would usually cover activities such as: (1) road clearing; (2) forest
clearing for agriculture; (3) timber harvested for domestic use; (4) annual timber
harvest is less than 5,000m 3 . All these activities require a timber authority under
section 87 of the legislation. In 2000, the Forestry Act was amended to clarify
activities (1) and (2). Under the 2000 amendment, five new sections were added to
section 90 of the Forestry Act. These new sections are sections 90A to 90E.
Under the new legislative arrangements, huge forest areas can be converted into large
scale agricultural projects. Also such forests can be converted for road construction
where the road will be more than 12.5 kilometres in length. These changes were
brought about by the desire of the government to encourage large agro-forestry
projects which were not clearly mandated under the Forestry Act 1991.
The amendments however, contain very stringent conditions which must be
completed before a timber authority can be granted to the proponent. These conditions
include: (1) detailed development plan; (2) copy of relevant State Lease relating to the
land; (3) an implementation schedule for the complete agricultural project showing
precise areas and proposed rate of harvesting; (4) relevant approvals from the
Department of Agriculture and Livestock; (5) approvals from other relevant State
agencies; (6) verification of ownership and consent of forest resource owners and (7)
approval from the DEC.
Although the Forestry Act does not explicitly provide for protection forests or reserve
forests, sections 77 and 90A to 90E provide the opening through which biodiversity
can be protected under the legislation. Where the DEC is aware that certain forest
areas contain high biodiversity, the Department can oppose any large scale logging or
agro-forestry projects in these areas and request the Minister to declare them as
protected forests.
4.2.7 Organic Law on Provincial Governments and Locallevel
Governments 1995
This Organic Law was introduced in 1995 to sweep away the old provincial
government system and establish a reformed system with local-level governments at
its core. Under the previous Organic Law provincial governments did have limited
legislative powers to make laws on limited aspects of biodiversity. The new Organic
Law has however, removed that power and transposed it on the local-level
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governments. The Environment Act 2000 also restricts the power of provincial
governments on environmental law-making only to noise pollution.
Local-level governments are mandated under section 44 of the Organic Law to enact a
wide range of laws on various subject matters. In the area of biodiversity, local-level
governments can make laws on: (1) the environment; (2) sacred sites; (3) domestic
animals and (4) traditional copyright. Local-level governments throughout the country
have already proceeded to exercise their legislative powers under this provision. On
the subject of environment, two local-level governments have already passed laws on
the matter. These are the Huhu Local-level Government in Milne Bay Province and
the Almami Rural Local-level Government in the Madang Province. The Huhu law is
very brief and only makes declaratory statements about the environment. There are no
substantive provisions on biodiversity use.
The Almami law is more comprehensive and structured. The law promotes
sustainable development by integrating modern and traditional concepts of natural
resources use and management. The law also establishes a committee which is
responsible for the management of biodiversity in the Almami Local-level
Government area. This law was passed by the local-level government in 2002 and is
currently being implemented by the local-level government with the international
non-governmental organization, The Nature Conservancy.
Another local-level government is currently embarking on the development of a law
to protect and manage its marine biodiversity by using the Almami model. The
Talasea Rural Local-level Government in the West New Britain Province is
conducting this pioneering work with the support of two non-governmental
organizations operating in the area, namely; The Nature Conservancy and Mahonia
Na Dari.
The absence of a national legal framework on biodiversity use and management has
enabled some of the local-level governments to invoke their powers under the
Organic Law on Provincial Governments and Local-level Governments 1995 to
initiate local-level biodiversity laws. As more and more local-level government laws
are made, issues of compliance will become critical. Issues of consistency of laws
may also arise where some of these laws become cumbersome and too stringent.
Whatever the outcome, it is clear that local-level governments may hold the key to
biodiversity protection and sustainable use. The challenge is to develop synergies in
the laws so that there is consistency of rules and procedures in dealing with biological
diversity.
4.2.8 Fisheries Management Act 1998
The principal legislation governing the use and management of marine biological
species is the Fisheries Management Act which was enacted in 1998. This legislation
repealed the Fisheries Management Act of 1994. The legislation was enacted for the
purpose of giving effect to the National Goals and Directive Principles, particularly to
promote the management and sustainable development of fisheries in PNG.
According to section 3 the legislation regulates all manner of fishing except for
fishing for domestic consumption, sport, leisure, customary and artisanal purposes.
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The Act also does not apply to the Torres Strait Protected Zone because the area is
regulated by the Fisheries (Torres Strait Protected Zone) Act 1984. The Act defines
‘fish’, ‘fishery’ and ‘sedentary species’ in the following terms:
The Act defines “fish” as: any water-dwelling aquatic or marine animal or plant,
alive or dead, and includes their eggs, spawn, spat and juvenile stages, and any of
their parts, but does not include any species of whale.
It also defines “fishery” or “fisheries” as: one or more stocks of fish, which can be
treated as a unit for the purposes of conservation, development and management,
taking into account geographical, scientific, technical, customary, recreational,
economical and other relevant characteristics.
Sedentary species are distinguished from fish and fisheries as: marine or aquatic
organisms which, at the harvestable stage, are immobile on or under the bed of the
sea or water, as the case may be, or unable to move except in constant physical
contact with the subsoil or bed of the sea or water, as the case may be (s2).
The Act is quite visionary as it adopts some principles of sustainable development as
its foundation. These principles are: (1) inter-generational equity (future generations);
(2) integration of social, economic and environmental consideration in fisheries
development; (3) application of the precautionary approach in fisheries management
and (4) inter-species justice (protection of ecosystems and biodiversity). These
principles are clearly spelt out in section 25 of the legislation.
25. Management objectives and principles.
In exercising powers under and in relation to this Act, the Minister or the National Fisheries
Authority, as the case may be, shall have regard to the following objectives and principles in
respect of the fisheries waters:—
(a) promote the objective of optimum utilisation and long term sustainable development of
living resources and the need to utilise living resources to achieve economic growth,
human resource development and employment creation and a sound ecological balance;
(b) conserve the living resources for both present and future generations;
(c) ensure management measures are based on the best scientific evidence available, and are
designed to maintain or restore stocks at levels capable of producing maximum
sustainable yield, as qualified by relevant environmental and economic factors including
fishing patterns, the interdependence of stocks and generally recommended international
minimum standards;
(d) apply a precautionary approach to the management and development of aquatic living
resources;
(e) protect the ecosystem as a whole, including species which are not targeted for
exploitation, and the general marine and aquatic environment;
(f) preserve biodiversity;
(g) minimise pollution;
(h) implement any relevant obligations of Papua New Guinea under applicable rules of
international law and international agreements.
The sustainable management of the fisheries resources are implemented through the
application of a number of tools. These management tools are: (1) Fishery
Management Plans as envisioned by section 28; (2) Access Agreements provided for
by section 33; (3) Fisheries Management Agreements encapsulated by section 37; (4)
Licences, covered by sections 41 to 46 and (5) Regulations provided for by section
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76. The Fisheries Management Plans provide the blueprint for the research,
development and conservation of fishery species. When a Fishery Management Plan
is put in place, access to these resources is managed through Access Agreements.
Fishing licences are issued by the Managing Director after receiving advice from the
Fisheries Board. When a licence is issued, certain conditionalities can be imposed on
the applicant to ensure that the successful applicant complies within the laws of PNG
and also to ensure that ‘best practice’ standards are maintained by the applicant. As
for Regulations, the Fisheries Regulation 2000 provides framework for the farming
and harvesting of fish in PNG waters.
A specific provision of the legislation which is aimed at protecting depleted or
threatened marine resources is section 30. This provision enables the Fisheries Board
to declare that organisms of a specified kind are not sedentary organisms in respect of
specified part of fisheries waters and prohibit:
(a) At all times, or during a specified period, the taking, from any specified
area of fisheries waters of (i) fish or fish included in a specified class of fish
and (ii) in the case of a specified class of crustaceans, females having eggs or
spawn attached to them, and the processing of such fish on a vessel in the
specified area.
(b) The taking, from any fisheries waters, of fish included in a specified class of
fish that (i) are less or greater than a specified size, or (ii) have dimension
less or greater than a specified dimension, or (iii) have a part with
dimension less or greater than a specified dimension in relation to that part.
(c) The taking, from any fisheries waters, of fish, or of fish included in a
specified class of fish (i) by a specified method or gear, or (ii) by persons
other than a specified class of persons, or (iii) by vessels other than a
specified class of vessels.
(d) The buying, selling, landing, sale, receiving, possession or export of fish or
of fish included in a specified class of fish.
(e) A person from having in his possession or in his charge in a vessel, in any
area of waters, gear of a specified kind for taking fish unless the gear is
stowed and secured.
(f) A person from using, or having in his possession or in his charge in a vessel,
in any fisheries waters, a quantity of equipment of a specified kind for
taking fish that is in excess of a quantity specified in, or ascertainable as
provided in, the notice.
(g) A person from using or having in his possession or in his charge or in or on
a vessel or a class of vessels, in any fisheries waters to which a notice under
Paragraph (f) applies, equipment of a kind to which the notice applies,
unless there is a licence in respect of the equipment.
(h) The conduct of a specified type of related activity (i) absolutely, or (ii) by
persons other than a specified class of persons, or (iii) in a specified
manner.
(i) The taking of protected or endangered species of fish.
With the exception of certain persons and activities authorized by the Board, these
prohibitions apply to all persons regardless of their status. If the Board approves an
exemption, the legislation states clearly that this exemption can be valid only for three
months. Section 30 provides the leeway for the conservation and management of
endangered and protected marine species through the control of harvesting periods
and methods of fishing.
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Section 32 of the legislation provides a wider protection net for marine biodiversity.
This provision prohibits the use of dangerous and poisonous substances for the
harvesting of marine species.
32. Fishing with poisons or explosives prohibited.
(1) No person shall—
(a) use, permit to be used or attempt to use any—
(i) chemical, poison or noxious substance or material whether of manufactured
or natural origin; or
(ii) dynamite or explosive substance or device, for the purpose of killing, taking,
stunning, stupefying or disabling fish or in any way rendering fish more easily
caught; or
(b) carry, permit to be carried, possess or control any—
(i) chemical, poison or noxious substance or material whether of manufactured
or natural origin; or
(ii) dynamite or explosive substance or device, in circumstances which indicate
the intention of its use for any of the purposes referred to in Paragraph (a); or
(c) place in the water or assist in placing in the water any—
(i) chemical, poison or noxious substance or material whether of manufactured
or natural origin; or
(ii) dynamite, or any explosive substance or device, for any of the purposes
referred to in Paragraph (a).
(2) No person shall—
(a) land, display for sale, sell, deal in, transport, receive or possess any fish or fish
product taken by any means which contravenes this section; or
(b) knowing or having reasonable cause to believe that any fish or fish product has
been taken in contravention of this section, fail or refuse to give, on request, to any
authorized officer information regarding —
(i) any activity described in Subsection (1), or any support of or contribution to
such activity; or
(ii) the source of his supply of any fish or fish product referred to in
Paragraph (a).
(3) Any person who contravenes Subsection (1) or (2) commits an offence.
(4) In any proceedings for an offence against this section, a certificate in writing stating the
cause of death or injury of any fish, issued in accordance with Section 67, shall be prima
facie evidence of that fact.
(5) For the purposes of this section, any explosive, poison or other noxious substance found
on board any fishing vessel shall be presumed to be intended for the purposes referred to
in Subsection (1)(a).
(6) All fish or fish products seized under this section shall be confiscated, and any vessel or
vehicle used to transport such fish or fish products may be confiscated, and disposed of
in such manner as the Managing Director determines.
(7) For the purposes of this section, the terms “chemicals”, “noxious materials”, “poisonous”
and “substance” include but are not limited to hypochlorus acid or any of its salts,
including bleaches commonly sold under various trade names such as Clorox and Purex,
and bleaching powders, preparations containing rotenone, tephrosin or plant material
from Barrington asiatica, Coculus ferrandianus, Hera crepitans, Piscidia erythrina,
Tephrosia purpurea and Wikstremia.
To prevent the use of dangerous and poisonous substances and to ensure that fishing
vessels are complying with the access agreements and their licences, the Act allows
for the presence of observers on fishing vessels. Section 50 clarifies the role of an
observer. It stipulates that the role of an observer is to collect and report reliable and
accurate information for scientific, management, and compliance purposes, including:
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• the species, quantity, size, age, and condition of fish, taken;
• the methods by which, the areas in which, and the depths at which, fish are
taken;
• the effects of fishing methods on fish, and the environment;
• all aspects of the operation of any vessel;
• processing, transportation, transhipment, storage, or disposal of any fish;
• any other matter that may assist the Managing Director to obtain, analyse, or
verify information for the purposes of fisheries scientific, management, and
compliance purposes.
The entry points for intervention in the fisheries law for marine biodiversity
conservation and sustainable use are: (1) the Fisheries Management Plans; (2) Access
Agreements; (3) Fisheries Management Agreements and (4) Licensing. Any attempt
to promote the sustainable use of marine biodiversity must be made at these points.
4.2.9 Physical Planning Act 1989
The Physical Planning Act is a vital legal tool which can be used effectively to
promote biodiversity protection and sustainable use. There are several key features of
the legislation which have a bearing on biodiversity protection and sustainable use.
The first feature of the legislation for present purposes is the Preamble to the Act. The
preamble of the legislation declares that it is:
an Act to establish a comprehensive mechanism for physical planning at national
and provincial levels of government and to provide powers for the planning and
regulation of physical development and that it is a law that is made for the
purpose of giving effect to the public interest in public welfare and public health.
The legislation’s primary role is to regulate planning for development at the national
and provincial government levels. Second, section 2 of the Act declares that the law
applies to all land in PNG, whether it is customary, State or freehold land. Third,
section 5 of the Act makes it mandatory for the determining authority to take into
account the Environment Act 2000 (the Act makes reference to the Environmental
Planning Act and the Environmental Contaminants Act) and more specifically EIA,
when considering physical planning matters. Also section 9 of the Act provides that
the Secretary for DEC or his nominee is a member of the National Physical Planning
Board.
Fourth, the legislation relates to all kinds of development in PNG. Part VI (sections
44 to 66) of the Act makes provisions for the adoption of different development plans.
Section 44 defines development plans in the following terms:
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44. Development plans.
A development plan may be prepared for any area in Papua New Guinea,
whether or not it is a physical planning area, and may be—
(a) a provincial development plan; or
(b) an urban development plan; or
(c) a local development plan; or
(d) a subject development plan.
The development plan, according to section 45, is a written and illustrated statement
of policy and proposals in respect of the development and other use of land in the
development plan area and may include: (1) measures for the improvement of the
physical environment and the management of traffic, and (2) the zoning of land. A
development plan must be based on a survey of the development plan area, which
shall, in the case of a development plan other than a subject development plan,
include: (1) the principal physical, social and economic characteristics of the area
(including the purposes for which land is used) and, in so far as they may be expected
to affect the development plan area, of any neighbouring areas; (2) the size,
composition and distribution of the population of the development plan area and (3)
any considerations not included in (1) and (2) which may be expected to affect any
matters included in those paragraphs.
It is imperative to note that the Act defines the term “development” as:
“development” means the carrying out of building, engineering, mining or other
operations in, on, over or under land, or the making of any material change in the
use of any buildings or other land, and includes—
(a) the deposit of refuse or waste materials on land, notwithstanding that the land
is comprised in a site already used for that purpose; and
(b) the formation and laying out of means of access to roads,
but does not include—
(c) the carrying out of works for the maintenance, improvement or other
alteration of any building, being works which affect only the interior of the
building, or which do not materially affect the external appearance of the
building and (in either case) do not increase the floor space available in the
building; and
(d) the carrying out by or on behalf of the responsible authority of works
required for the maintenance or minor improvement of a road, other than the
widening of a road or junction to provide an additional lane or lanes; and
(e) the carrying out by a statutory undertaker or other authorized person of
works for the purposes of inspecting, repairing or renewing any sewers,
mains, pipes, cables or other apparatus; and
(f) the use of land for the purposes of agriculture or forestry (including
afforestation) and the use for any of those purposes of any building occupied
together with land so used; and
(g) in the case of any building or other land within a zone, the use thereof for any
other purpose specified as falling within that zone.
Any activity to alter the land or a building would clearly fall within the scope of this
legislation. The legislation is a development planning tool designed to coordinate all
development activities (apart from those exempted by the definition) in, on, over or
under land.
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The inclusion of the Secretary for DEC on the Board, the requirement for an EIA and
the reference to the Environment Act in the legislation, reflects the prominence the
Act gives to environmental management vis-a-vis biodiversity protection and
sustainable use. An activity that will have an impact on biodiversity protection and
sustainable use would definitely fall under the ambit of this legislation.
4.2.10 Dumping of Wastes at Sea Act
This legislation was enacted in 1979 for two principal reasons. First, to provide for
the prevention of pollution of the sea by the dumping of waste and other matter which
may create hazards to human health, harm living resources and marine life, damage
amenities or interfere with other legitimate uses of the sea; and second, to give effect
in PNG as far as may be, to the International Convention on the Prevention of Marine
Pollution by Dumping of Wastes and other Matter, 1972.
The legislation prohibits the discharge of wastes from vehicles, ships, aircrafts and
marine structures. Although the legislation may seem very stringent on waste
management, it actually regulates the dumping of wastes into the territorial waters of
PNG. The legislation allows for the dumping of wastes and other materials in the
territorial waters through a licensing process provided for under the legislation.
Section 4 sets out the permit application requirements and section 5 provides the
criteria for determining an application. Interestingly, section 6 permits the disposal of
wastes in the territorial waters in emergency situations where the continued
possession of the waste on the vehicle, ship, aircraft or marine structure poses health
risk to humans.
The focus of this legislation is on marine biodiversity. The prevention of dumping in
PNG waters, of wastes and other materials, ensures that the fragile marine ecosystems
are protected and used on a sustainable basis.
4.2.11 Prevention of Dumping of Wastes at Sea Act
This legislation was also enacted in 1979 for two main reasons. First, the legislation
provides for the prevention and control of pollution of the sea by oil and other
substances; and second, to give effect in PNG to four international treaties relating to
oil pollution. These treaties are:
1. the International Convention for the Prevention of Pollution of the Sea by Oil,
1954, as amended in 1962, 1969 and 1971;
2. the International Convention Relating to Intervention on the High Seas in
Cases of Oil Pollution Casualties, 1969 and the Protocol Relating to
Intervention on the High Seas in Cases of Marine Pollution by Substances
other than Oil. 1973;
3. the International Convention on Civil Liability for Oil Pollution Damage,
1969 and the Protocol to the International Convention on Civil Liability for
Oil Pollution Damage, 1969 (1976); and
4. the International Convention on the Establishment of an International Fund
for Compensation for Oil Pollution Damage, 1971 and the Protocol to the
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International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971 (1976).
Unlike the Dumping of Wastes at Sea Act, this legislation is specifically concerned
with oil pollution in PNG’s internal waters and the EEZ. It brings into force in PNG
the provisions of the four oil pollution treaties. According to section 4, any discharge
of oil or any oil mixture in PNG waters will attract a penalty for the owner and
captain of the ship. The legislation covers oil discharge from ships registered in PNG
and outside the country. Under section 14 a person who discharges a marine pollutant
(which is a substance that will create hazards to human health, to harm living
resources and marine life, to damage amenities or to interfere with other legitimate
uses of the sea) and does not inform the relevant State agency (in this case the
Department of Transport and Civil Aviation), he or she will be liable to a fine of
K20,00.00.
There are two interesting aspects of the legislation which require mention. The first
relates to ‘exemptions’ and the second relates to ‘the Compensation Fund’. There are
certain exemptions or oil discharges which are permitted by the legislation. These
exemptions are found in sections 6 and 7. The first provision states that:
Section 6 (2)
Where—
(a) oil or oily mixture is discharged from a ship into any part of the sea outside
the territorial sea; and
(b) the ship is proceeding on a voyage; and
(c) the instantaneous rate of discharge of oil content does not exceed 60 litres per
mile; and
(d) the oil content of the discharge is less than 100 parts per 1,000,000 parts of the
mixture; and
(e) the discharge is made as far as practicable from the nearest land,
no offence is committed under Section 4.
This provision expressly allows for the discharge of oil and oily mixtures from a ship
if it is proceeding on a voyage or the oil discharge is not more than 60 litres per mile
or the discharge is less than 100 parts per 1,000,000 parts of the mixture and that such
a discharge must as far as possible be far away from the nearest land. There is
however, a small caveat that is provided by the provision. Section 6(1) stipulates that
this exemption only applies to ships registered in PNG and also not to oil tankers.
This provision adopts the exemptions provided under the treaties.
The question is: how do you determine whether the discharge is not more than 60
litres per mile or less than 100 parts per 1,000,000 parts of the mixture or was
discharged far away from the nearest land This is an issue that needs to be clarified
by the law.
7. Certain discharges permitted from tankers.
(1) Where—
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(a)
(b)
(c)
(d)
(e)
oil or oily mixture is discharged from the machinery space bilges
of a tanker that is registered in Papua New Guinea into any part
of the sea outside the territorial sea; and
the tanker is proceeding on a voyage; and
the instantaneous rate of discharge of oil content does not
exceed 60 litres per mile; and
the oil content of the discharge is less than 100 parts per
1,000,000 parts of the mixture; and
the discharge is made as far as practicable from the
nearest land,
no offence is committed under Section 4.
(2) Where oil or oily mixture is discharged (other than from the machinery
space bilges) from a tanker that is registered in Papua New Guinea and—
(a)
where—
(i) the tanker is proceeding on a voyage; and
(ii) the instantaneous rate of discharge of oil content
does not exceed 60 litres per mile and
(iii) the total quantity of oil discharged on a ballast
voyage does not exceed one part per 15,000 parts
of the total cargo carrying capacity of the tanker;
and
(iv) the tanker is more than 50 miles from the nearest
land; or
(b) the discharge consists only of ballast from a cargo tank which
since the cargo was last carried in it has been so cleaned that
any effluent from it, if it were discharged from a stationary
tanker into clean calm water on a clear day, would produce no
visible traces of oil on the surface of the water,
no offence is committed under Section 4.
The exemptions that are provided by this provision apply to oil tankers registered in
PNG. There are two main differences between sections 6 and 7. First, section 6 has a
general application whereas section 7 is specifically for oil tankers. Section 7 focuses
on three sources of oil spillage while section 6 is in general terms. These are:
1. Oil discharged from the machinery space bilges of a tanker;
2. The oil or oily mixture discharge occurs from a source other than from the
machinery space bilges of a tanker; and
3. The discharge consists only of ballast from a cargo tank which since the cargo
was last carried in has been cleaned.
The second unique feature of the legislation is that it adopts the Compensation Fund
under the treaty into law. The Compensation Fund is an initiative established by the
International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage. The aim of the Convention is to encourage
parties to the treaty and owners of oil tankers to contribute a certain amount of money
towards the Fund which will then be used to compensate countries where an oil spill
occurs and causes damage.
Under the Act, owners of oil tankers are required to show that they have taken
appropriate steps to comply with the provisions of the treaty. Where in the opinion of
the Minister, such measures are either not in place or inadequate, he or she may
demand the owners of the vessels to pay a contribution to the Fund. Failure to comply
with the directive will tantamount to an offence under the Act.
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These two pieces of legislation are usually enforced by the Department of Transport
and Civil Aviation. Attempts have been made by the Department to review these two
statutes. A draft bill is currently in circulation for comment and hopefully will see the
light of day soon.
The focus of the Prevention of Dumping of Wastes at Sea Act is similar to that of the
Dumping of Wastes at Sea Act – marine biodiversity. Terrestrial species are also
covered by these two laws given the movement of people and birds in PNG waters.
An oil spill would not only impact on the marine eco-system but also people and other
biological species which depend on the sea for their livelihood.
4.3 Access to Biological and Natural Resources
There are several pieces of legislation which provide rules on access to biological and
natural resources. Most of these laws relate to the development of natural resources.
These include: the Forestry Act 1991; the Mining Act 1992; the Oil and Gas Act 1998;
the Fisheries Management Act 1998; the Conservation Areas Act and the Fauna
(Protection and Control) Act.
4.3.1 Forestry Act
Forestry resources in PNG are found largely on customary land which the State has
very little control over. Thus, for the State to access these forestry resources it
requires the consent of forest resource owners. The Forestry Act provides the
methodology for the State to access these resources. The relevant provisions of the
law are sections 54 to 60. Section 54 declares that forest resources can only be
developed in accordance with the National Forest Plan. And section 55 stipulates that
forest resources activities can be conducted on:
(a) Government land—as approved by the Board; and
(b) State leasehold land—where the lessee consents and subject to the
conditions of the lease; and
(c) private leasehold—where the owner consents; and
(d) private freehold—where the owner consents; and
(e) customary land—where—
(i) a Forest Management Agreement in accordance with this Division has
been entered into between the customary owners and the Authority;
or
(ii) a timber authority has been granted; or
(iii) a clearing authority has been granted under Section 90B or 90D.
Given that the majority of forest resources are found on customary land, it is
imperative to consider the process involved in obtaining the consent of forest resource
owners for the development of their resources. The Act explicitly recognizes the
rights of forestry resources owners under section 46. This provision stipulates that
“the rights of the customary owners of a forest resource shall be fully recognized
and respected in all transactions affecting the resource.” This provision merely
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provides a procedural right and not a substantive right. A breach of this provision will
not give rise to a legal suit.
Access to forestry resources on customary land is permissible through a contract
known as the ‘Forest Management Agreement’ (FMA) provided under section 56 of
the Act. The FMA enables the owners of the forestry resources to transfer their rights
over their forest resources to the State. The FMA is a standard contract the National
Forest Authority has devised for use under the legislation. Section 56 is in the
following terms:
56. Acquisition of timber rights, etc., by the Authority.
(1) Subject to this Division, the Authority may acquire timber rights from
customary owners pursuant to a Forest Management Agreement between the
customary owners and the Authority.
(2) An acquisition under Subsection (1) is not valid, and no Forest Management
Agreement is valid, unless it is approved by the Minister.
(3) No acquisition under this section shall affect the customary rights of
ownership of the land.
It is important to note that the express stipulation of this provision is that the transfer
of timber rights does not affect the ownership of the land. The ownership of
customary land remains intact with the forest resource owners.
The FMA enables the transaction of rights from the forest resource owners to the
State. The terms of a FMA are provided by section 58 which includes matters such as:
(1) location of the forest area; (2) the volume of merchantable timber in the area and
(3) amount of money payable to the forest resource owners and the duration of the
contract. In consideration for the transfer, the State pays a certain amount of money to
the forest resource owners. The payment of this money is based on a very complicated
mathematical formula which an ordinary villager is unable to understand.
The giving of consent by forest resource owners as set out in section 57 of the Act is
very deceptive. The section reads:
57. Obtaining consent of customary owners to Forest Management Agreement.
(1) Where it is proposed to enter into a Forest Management Agreement over
customary land, the title of the customary owners to that land shall be—
(a) vested in a land group or land groups incorporated under the Land
Groups Incorporation Act 1974; or
(b) registered under a law providing for the registration of title to customary
land.
(2) Where it is impractical to give effect to the requirements of Subsection (1)(a)
or (b), a Forest Management Agreement may be executed on behalf of
customary groups who are customary owners in respect of the land covered
by the Agreement, by agents of such groups, provided that—
(a) such agents are authorized to so act in a manner which is consistent with
the custom of the group they represent; and
(b) 75% of the adult members resident on the land of each such group give
written consent to their group entering into the Agreement.
The requirements of section 57(1)(a) and (b) is cumbersome and involves a lot of
money, and takes a long time to resolve. The resolution of a landownership issue
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under the Land Disputes Settlement Act is lengthy and expensive for landowners.
Thus, the deceptive process promoted by section 57(2). Several studies have shown
that it is quite impossible to obtain consent from 75% of forest resource owners. How
does one calculate the figures Are children eligible as forest resource owners under
this provision Or how are the signatures of resource owners to be authenticated
These are some of the issues that have not been clarified by the legislation.
Nonetheless, when a FMA is in place, the State can then proceed to advertise the area
for logging purposes. Section 60 spells out the rights of the State that emanates from
the FMA. Section 59 empowers the State to transfer its rights to a timber permit
holder to log in the area covered by the FMA.
When a developer has been selected by the government to conduct logging activities
in a Forest Management Area, the developer is required to enter into negotiations with
the forest resource owners over issues of development projects in their area and
the distribution of benefits. The terms of these arrangements are contained in an
agreement called the “Logging and Marketing Agreement”. The Logging and
Marketing Agreement is a normal contract and is thus, governed by the rules and
principles of contract law.
4.3.2 Mining Act
Minerals in PNG are the property of the State. Section 5 declares that all minerals
existing on, in or below the surface of any land in PNG, including any minerals
contained in any water lying on any land in PNG, are the property of the State. The
Act further declares under section 6 that all land in PNG, including all water lying
over that land, is available for exploration and mining and the grant of tenements over
it.
Based on this premise, the State does not require the PIC of resource owners before it
issues a mining tenement over an area of the country. However, although the State
owns all the minerals in the country and has the inherent power to issue a mining
tenement over any part of the country, the State does under section 3 give de facto
recognition to landowners’ rights over the resources. The recognition of the rights of
landowners emanate from their ownership of the land on which a mining tenement is
issued. The State does own the minerals but it cannot access these minerals without
interfering with the rights of landowners over the use of their land.
Section 3 of the Act is in the following terms:
3. Consultation.
(1) A development forum shall be convened by the Minister before the grant of
any special mining lease to consider the views of those persons whom the
Minister believes will be affected by the grant of that special mining lease
and shall be conducted by the Minister according to such procedures as will
afford a fair hearing to all participants.
(2) The Minister shall invite to a development forum such persons as he
considers will fairly represent the views of—
(a) the applicant for the special mining lease; and
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(b) the landholders of the land the subject of the application for the special
mining lease and other tenements to which the applicant's proposals
relate; and
(c) the National Government; and
(d) the Provincial Government, if any, in whose province the land the
subject of the application for the special mining lease is situated.
(3) Before the grant of any mining lease the Minister shall consult with the
Provincial Government, if any, in whose province the mining lease will be
located.
The stakeholders that may be invited by the Minister to a development forum would
obviously include landowners. The involvement of the landowners in the mining
process only arises where a special mining lease will be granted to a developer of
the minerals. A special mining lease is usually issued to the holder of an exploration
licence who wants to develop a mining project. The perception under the legislation is
that landowners have no right to consent to the project and that their involvement is
primarily for the purpose of determining what sorts of benefits they will derive from
the mining project. These benefits are settled through a string of agreements executed
between all the different stakeholders.
The issue of PIC is being dealt with under the draft Sustainable Mining Policy. The
new policy acknowledges the special position of landowners and seeks to strengthen
their participation in the mining industry by ensuring that they are involved in the
initial stages of a mining project – exploration stage. Under the proposed policy, the
PIC of landowners must be obtained first to enable access before an exploration is to
be initiated in any part of the country.
A peculiar provision of the Act which draws special attention is section 7. This
provision adopts into law what the Forest Act has failed to do with a particular
concept adopted by the Forestry Policy – protected forest! The Act actually promotes
the concept of protected areas through section 7. This provision reads:
7. Reservation by the Minister.
(1) Where the Minister considers it to be in the best interests of the State, the
Minister may, by notice published in the National Gazette, reserve from
exploration or mining or non-mechanized mining as provided for in Section
9 any land specified in the notice, and such reservation shall be effective on
and from the date of publication of the notice.
(2) A notice under Subsection (1) shall specify the area of land under
reservation by reference to a description of the land in latitude and
longitude and shall comprise sub-blocks.
(3) Subject to Subsection (4), on the coming into effect of a reservation under
this section, the Registrar shall defer dealing as required under Section
103(b) with any registered applications for tenements over the land the
subject of the reservation until such time as the reservation is revoked or
otherwise expires.
(4) A reservation under this section shall have no effect on—
(a) any tenement or application for the grant of any tenement registered
prior to the date of publication of the notice of reservation; or
(b) any application for extension of the term of a tenement to which
Paragraph (a) refers; or
(c) the right of any person to apply for the grant of a tenement and the
requirement that an application be registered under Section 103(a).
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(5) Upon the revocation or expiry of a reservation, any application for the
grant of a tenement over the land the subject of the reservation that has
been registered shall be dealt with by the Registrar in accordance with
Section 103(b).
A reserved land is defined by the Act as: “land reserved, or deemed to have been
reserved, under Section 49 of the Land Act 1996, whether or not that land has been
placed or is deemed to have been placed, under the control of trustees under Section
50 of that Act”. This provision must be considered in the light of section 4 of the
National Parks Act. A land reserved under section 49 of the Land Act for national
park purposes can also be recognized under the Mining Act as a reserved land.
Unfortunately, no similar provision is found in the Forestry Act.
The assumption then is that a piece of land reserved under the Land Act and the
National Parks Act would not be subject to a mining tenement under the Mining Act.
However, this is not the case because section 8 of the Mining Act seeks to open up the
reserved land for exploration and possible development where minerals are located on
the reserved land.
8. Exploration and mining on reserved land.
(1) An application for a tenement over land reserved for exclusive use under the
Land Act 1996 or any other Act may not be granted without the consent of
the Minister responsible for that reserved land.
(2) Where consent has been obtained under Subsection (1) no further consent
shall be required if the tenement is converted to another tenement.
Section 8 however, contains a very strong qualification which protects the reserved
land from exploration and mining. It clearly states that the consent of the Minister
responsible for the reserved land – in this case the Minister for DEC (if the reserved
land is for a national park), must be obtained first before any mining tenement can be
issued over the land. Herein lays the strength of biodiversity protection as opposed to
mining development in a National Park.
The issue is whether exploration can be conducted in an existing National Park. It is
suggested that given the scope of section 8, no mining tenement can be issued over an
existing National Park without the consent of the Minister for DEC. Another issue is:
does this protection extend to WMAs and conservation areas The Mining Act is
silent on this issue. This issue raises another critical issue: if there is a conflict of
laws, which law will prevail Clearly the Mining Act will excel over the Conservation
Areas Act and the Fauna (Protection and Control) Act based on the legal principle of
the latest law clearly expresses the intent of Parliament. The essence of the
principle is that where two laws are in conflict, the provisions of the latest law will
apply. Given that the Mining Act is the latest law, where there is a conflict between
this statute and the Conservation Areas Act and the Fauna (Protection and Control)
Act, the Mining Act will prevail. This issue has to be given more detailed
consideration some time in the future.
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4.3.3 Oil and Gas Act
This legislation was enacted by Parliament in 1998 to replace the Petroleum Act amid
widespread controversy over issues relating to rights of resource owners. The aim of
the legislation is quite comprehensive. It is an Act governing the exploration for and
production of petroleum (including oil and gas) in PNG, including the offshore area
and, the grant to traditional landowners and Provincial Governments and Local-level
Governments of benefits arising from projects for the production of petroleum
(including oil and gas), and the processing and transportation in PNG of petroleum
and petroleum products. The prominence given to landowners by the legislation
reflects the controversy surrounding its enactment.
Like the Mining Act, the Oil and Gas Act vests the ownership of all petroleum and
helium in the State.
The Oil and Gas Act promotes the participation of resource owners at the earliest
point of intervention in the industry – exploration. Section 47 imposes a duty on the
holder of a petroleum prospecting licence to undertake social mapping studies and
landowner identification studies during the course of exploration. The scope and
method of a social mapping study or landowner identification study shall be
prescribed by the Minister for Petroleum and Energy. If a discovery is notified by a
licensee and the licensee conducts a final feasibility study of the development or
extension of a petroleum project for the production of petroleum from that discovery,
the licensee shall at the same time conduct:
• A full-scale social mapping study; and
• A full-scale landowner identification study of customary owners and the
occupants of the land which will be comprised in the licence area of a
petroleum development licence or licences which would pertain to the
development of that discovery and the land within five kilometres of any
facility which would be a dedicated project facility (other than a facility which
would be situated on such a petroleum development licence) of the petroleum
project or other areas which would be affected by the petroleum project if
developed.
Once the resource owners are clearly identified they can then be able to participate in
a petroleum development forum provided under section 48. All stakeholders in the
proposed project are required to meet at this forum to negotiate the terms and
conditions of the development project. There are four conditionalities required by
section 49 that have to be satisfied before a development forum can proceed.
49. Matters required before development forum.
A development forum shall not be convened in respect of a proposed petroleum
project until—
(a) the applicant or intending applicant for a licence or licences has completed
and presented to the Minister full-scale social mapping and landowner
identification studies in accordance with Subsection 47(5); and
(b) the Minister is satisfied, on the basis of the results of those studies, that the
people who would be project area landowners of the petroleum project are
truly represented by the persons who are to be invited to the development
forum as their representatives; and
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(c)
(d)
the applicant or intending applicant has submitted to the Minister, and to
the Minister responsible for environmental matters, a socio-economic
impact study as part of the environmental plan required under the
Environmental Planning Act 1978; and
the Director has prepared a proposal, after giving due consideration to the
results of the full-scale social mapping and landowner identification studies
and the socio-economic
There are two significant observations about this provision. First, the social mapping
and landowner identification studies conducted pursuant to section 47 are a precondition
to a development forum and thus, must be completed prior to this meeting.
Second, the linkage between environmental management and petroleum development
projects is borne out by this provision. The reference to the Environmental Planning
Act should now of course be read as a reference to the Environment Act 2000. The
developer of a petroleum project must also adhere to any requirements under the
Environment (Prescribed Activities) Regulation 2002 and also comply with the
conditions stipulated under the Environment (Water Quality Criteria) Regulation
2002. These three environmental laws ensure the protection of biodiversity.
The Oil and Gas Act, like the Mining Act also empowers the Minister to set aside
certain areas of the country as reservation blocks. Section 20 of the Act states that,
“the Minister may, by notice in the National Gazette, declare that a block or blocks
specified in the notice (not being a block or blocks in respect of which a tenement is
in force) shall not be the subject of a tenement, and may in the same manner revoke or
vary such notice. Unlike section 8 of the Mining Act, the reservation under this
provision is more general and also not permanent. Section 20(2) stipulates that,
“while a declaration under Subsection (1) remains in force in respect of a block or
blocks, a tenement shall not be granted in respect of that block or those blocks.”
It is arguable that a National Park, WMA or a conservation crea can also be declared
as reservation blocks under the Act. The deficiency of section 20 is that such a
declaration is not permanent given the phrase “and may in the same manner revoke or
vary such notice”.
4.3.4 Fisheries Management Act
Access to fisheries resources remain in the national government’s domain. Unlike
forestry, mineral and petroleum resources which are located on customary land, the
sea falls within the jurisdiction of the State under the National Seas Act. Although the
Fisheries Management Act recognizes the rights of customary resource owners under
section 26, they play very little role on issues of access to the nation’s fisheries
resources. This provision provides a procedural right rather than a substantive right
and is in similar terms to section 46 of the Forestry Act. This means that a breach of
this provision does not give rise to an actionable proceeding in a court of law.
The rights of the customary owners of fisheries resources and fishing rights shall
be fully recognised and respected in all transactions affecting the resource or the
area in which the right operates
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The provision merely acknowledges the existence of certain customary rights to
fishing. In the context of the Act, these rights would be limited to artisanal fishing
which is defined by the Act as:
“Artisanal fishing” means fishing by indigenous inhabitants in fisheries waters
where they are entitled by custom or law to fish, where—
(a) the fish are taken in a manner that, as regards the vessel, the equipment and
the method used, is in accordance with their customary traditions or is smallscale
and individually operated; and
(b) the fish are taken for household consumption, barter, domestic market trade,
or sale to a person licensed as a fish buyer under this Act.
Access to fisheries resources encapsulated by the legislation is primarily focused on
commercial fishing. The relevant provisions of the Act are section 33 to 36. Section
33 makes provision for access agreements to be executed between the government
and other States and regional economic integration organizations or any fishing
association or similar body, or a publicly incorporated company, or an individual.
These agreements are usually aimed at large-scale fishing activities for commercial
purposes. Access for research of marine biodiversity is not envisioned by this
provision. When an individual or corporation is allowed access, he or she must enter
into a Fisheries Management Agreements with the State. These contracts between
PNG and other States are designed to promote cooperation and coordination of
fisheries management. These agreements are different to access agreements. Fisheries
Management Agreements may relate to fisheries matters required by an access
agreement and may involve observer programs, monitoring, control and surveillance.
4.3.5 Conservation Areas Act
The Conservation Areas Act provides a single route to obtaining access to biological
resources. The landowners make the first move by requesting the Minister for DEC to
declare their area as a conservation area. The pertinent provision of the Act is section
12(2). It states that:
A person, group of persons or authority may make a written request to the
Minister to give consideration to making a recommendation that an area be
declared a conservation area.
The onus is on the person, group of persons or an authority to make a request to the
Minister to declare their area as a conservation area. The request must be
accompanied with a description of the area and an inventory of persons living in the
area, landownership and land use plans of the area. When considering the request, the
Minister is required by the Act to avert his mind to the particular biological,
topographical, geological, historical, scientific or social significance or other special
value for the present community or for future generations. If the proposed
conservation area contains these characteristics, the Minister will cause a
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ecommendation to be made for presentation to the National Executive Council for
determination.
When the recommendation has been prepared, the public is given the opportunity to
make submissions to the Minister on the recommendation. Where there are no
objections, the recommendation is submitted to the National Executive Council
pursuant to section 15 for approval.
If a conservation area is declared under section 17, the management and protection of
the area is vested in the Conservation Area Management Committee created under
section 25. All activities within a Conservation Area must comply with a
Management Plan approved by the Minister under section 27(2).
A person or an organization who wishes to access biological resources in a
conservation area would have to apply to the Conservation Area Management
Committee for approval. When access is approved, the person or organization has to
comply with the rules of the Conservation Area and also the Management Plan when
conducting research and other activities in the conservation area.
4.3.6 Fauna (Control and Protection) Act
There are several types of protected areas envisaged by the Act. These are: (1)
sanctuaries established under section 11; (2) protected areas created by section 13 and
(3) WMAs provided for under section 15. These areas are safe haven for endangered
or threatened fauna. According to section 6, the Minister may declare any fauna to be
protected fauna. And section 7 declares that all protected fauna are the property of the
State.
Access to protected fauna in sanctuaries, protected areas and WMAs require the
permission of the Conservator of Fauna who is usually the Secretary for DEC. In the
case of WMAs the approval is given after consultation with the WMA Committee.
Generally, the Secretary is mandated by sections 28 and 29 of the Act to permit
individuals and organizations to take, kill and collect fauna for research.
Given the focus of the legislation on fauna, can the Secretary approve access for
research in other biological species It is suggested that because a sanctuary,
protected area and WMAs are contained within a specified land area, and the
Secretary is empowered by the Act to permit access into these restricted areas, the
Secretary can allow for research into other biological species so long as the research
is conducted within the confines of the sanctuary, protected area or WMA. Any
research conducted in areas adjacent to a sanctuary, protected area or WMA require
access approval from the relevant owners of those areas.
Generally, access to biological diversity varies in context and method depending on
the type of biological resource being accessed and assessed. Basically the protected
areas laws allow for research in biological diversity. PIC is usually obtainable from
DEC. These laws however, fall short on dealing with issues of benefit sharing and
IPR where a biological resource has the potential to be commercialized.
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The natural resources laws are primarily concerned more with access to the natural
resources for exploitation on a large scale than the wider issues of biodiversity. The
two non-renewable resources laws and the Fisheries Management Act operate on the
premise that the resources belong to the State and thus, PIC must be obtained from the
State. The Oil and Gas Act has elevated the PIC issue to another level by giving due
recognition to the rights of resource owners in participatory development.
4.4 Benefit Sharing
Access and benefit sharing is closely associated with the subject of participation. And
participation is intricately linked to stakeholders and partnerships. In PNG, the
Constitution has adopted as one of the national goals of the country – Equality and
Participation. In PNG, participation in the protection and sustainable use of
biodiversity and natural resources is entrenched in the Constitution and the Organic
Law on Provincial Governments and Local-level Governments.
4.4.1 Organic Law on Provincial Governments and Locallevel
Governments
The three key provisions of the Organic Law on the subject are sections 115, 116 and
98. Section 115 of the Organic Law states that it is mandatory for the participation of
all the stakeholders in the development of natural resources located within their area.
This provision is however, not in force because an enabling legislation required under
section 116 has to be enacted to bring it into operation.
Section 98 is concerned with Benefit Sharing from the development of natural
resources. An essential term that has been clarified by the Organic Law is “natural
resource”. According to section 98(1) the term is defined as:
“Natural resource” includes minerals, petroleum, gas, marine products, water,
timber (including forest products), fauna, flora and any other product determined
by law to be a natural resource.
This definition clearly embraces biodiversity. In this context then, any benefits
derived from the development of a biological resource would fall within the ambit of
this provision.
The provision specifies the kind of benefits that has to be paid to local-level and
provincial government and explains how resource owners’ benefits are to be dealt
with under relevant agreements. The model adopted by the Organic Law is based on
the arrangements applied in large scale mining and logging projects. Although benefit
sharing arrangements between stakeholders in mining, petroleum and logging projects
are governed by contract law, the Organic Law makes it mandatory for the following
fees to be paid pursuant to section 98(2).
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(2) Subject to Subsection (7), for each fiscal year, a developer of a natural
resource, shall pay out of its own cost—
(a) to the Provincial Governments and the Local-level Governments of the
province or area in which the development is situated, development
levies in the form of—
(i) infrastructural development levies; and
(ii) economic development and land use follow-up levies; and
(iii) community and social development levies; and
(iv) any other levies as are from time to time determined by national law
or by agreement; and
(b) to the National Government, Provincial Governments or Local-level
Governments, land owners benefits in respect of natural resources
obtained, for payment to the owners of the land from which the
natural resources were obtained.
(3) The development levies shall be controlled through a trust fund which shall
be managed and administered in accordance with an Act of the Parliament.
(4) A developer shall provide to the National Government, Provincial
Governments and Local-level Governments, expertise and professional
support as to the use of the development levies.
(5) All land owners benefits in the form of royalties, land owners premiums,
compensation and other assistance, established by law or in accordance
with an agreement, shall be paid to the land owners less deduction only for
nominal tax (if applicable) and any recoveries for the cost incurred by the
National Government, Provincial Governments or Local-level
Governments, as the case may be.
(6) An Act of the Parliament shall make provision for the rates, management,
sharing arrangement, and application of the development levies.
(7) The provision of this section do not affect existing arrangements relating to
natural resources which are in force before the coming into operation of
this Organic Law.
The main setback for this provision is that it requires an Act of Parliament to bring it
into force. However, even without the appropriate law, developers in some of the
natural resources projects have already begun to apply the text of the Organic Law.
For instance, in the petroleum sector, the Oil and Gas Act 1998 makes express
statements that it implements section 98 and 115 and 116 of the Organic Law. The
relevant provision is section 2. It reads:
2. Application of provisions of Organic Law on Provincial Governments and
Local-level Governments.
(1) For the purpose of Section 98 of the Organic Law on Provincial
Governments and Local-level Governments it is hereby declared that this
Act—
(a) establishes the benefits and levies which are payable pursuant to
Subsection (2) of that section in respect of petroleum projects; and
(b) provides for the rates, management, sharing arrangement and
application of such development levies; and
(c) establishes the trust funds referred to in Subsection (3) of that section
for the controlling and distribution of development levies.
(2) For the purpose of Section 99 of the Organic Law on Provincial
Governments and Local-level Governments it is hereby declared that this
Act establishes the principles by which the National Government and its
statutory agencies will share with applicable Provincial Governments and
Local-level Governments the revenues of the National Government
generated from petroleum projects.
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(3) For the purpose of Section 116 of the Organic Law on Provincial
Governments and Local-level Governments it is hereby declared that this
Act establishes—
(a) the consultation process amongst stakeholders, including the
establishment and procedures for development forums, for petroleum
projects; and
(b) the extent to which the parties may participate in petroleum projects.
The exposition of the principles in this provision is enlightening given the absence of
an enabling legislation under section 116 and 98(6). The various natural resources
development contracts executed between the different parties involved in such
projects spell out the benefits that emanate from the development of these resources.
These contracts are usually confidential and not open to scrutiny by the public, thus
no firm comment can be made about the value and types of benefits that accrue to
resource owners. One thing is clear – section 98(6) and 116 of the Organic Law
have to be implemented with the enactment of a legislation that clearly sets the
benchmarks for rates, management, sharing arrangement, and other
development benefits.
4.5 Intellectual Property Rights
There are several pieces of legislation which will be considered under this heading.
These are: (1) Patents and Industrial Designs Act 2000; (2) the Copyright and
Neighbouring Rights Act 2000; (3) Trade Marks Act 1978; (4) National Agriculture
Research Institute Act 1996 and (5) the Income Tax Act 1958 (consolidated to No.68
of 2000). Each of the legislation and their specific provisions which impact on IPR
are considered below. The enactment of the two IPR legislation enacted in 2000 must
be seen in the light of the globalization movement promoted through the World Trade
Organization and WIPO in the early 1990s. Both statutes were introduced in PNG
under immense pressure from WIPO to enable the country to meet deadlines set by
the organization.
4.5.1 Patents and Industrial Designs Act 2000
The legislation was enacted in 2000 for the purpose of providing a framework the
protection of industrial property rights, namely; patents, industrial designs and
geographical indications and for related purposes. The Act is the primary legislation
dealing with one form of IPR – patents. Patents are defined by the Act.
“patent” means the title granted to protect an invention.
The legislation defines inventions as:
An idea of an inventor which permits in practice the solution of a specific
problem in the field of technology and may be, or may relate to, a product or a
process, but does not include—
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(a) a discovery, scientific theory or mathematical method; or
(b) a scheme, rule or method for—
(i) doing business; or
(ii) performing purely mental acts; or
(iii) playing games; or
(c) diagnostic, therapeutic and surgical methods, but not including any
products for use in any such methods, for the treatment of humans or
animals
According to this definition, the following things do not qualify as patents under the
Act:
• A discovery
• Scientific theory
• Mathematical method
• Scheme, rule or method for doing business
• Scheme, rule or method for performing mental acts
• Scheme, rules or method for playing games
• Diagnostic method
• Therapeutic method
• Surgical method
The Act also defines industrial design.
“industrial design” means any composition of lines or colours or any threedimensional
form, or any material, whether or not associated with lines or
colours, provided that such composition, form or material gives a special
appearance to a product of industry or handicraft and can serve as a pattern
for a product of industry or handicraft and appeals to and is judged by the eye;
The thrust of the legislation is to protect patents and industrial designs from
exploitation. The Act does through the creation of the office of the Registrar of
Patents and Industrial Designs under section 4 and the creation of a Register of
Patents and a Register of Industrial Designs. The Registrar’s principal function under
the legislation is to register patents and industrial designs and ensure that they are
protected from exploitation. The registration of a patent or industrial design under the
Act entitles the owner to certain rights and protection provided by the legislation.
Under the legislation a person can apply for the registration of a patent under and
industrial design under Part III (sections 12-37) and industrial designs under Part IV
(sections 38-51) of the Act. According to section 31, when a patent is registered it is
valid for 20 years. Industrial designs on the other hand, when registered, are protected
for only five years. However, according to section 50 it can be renewed for a further
two five year periods.
When a patent or industrial design is registered, the owner is required under the
legislation to pay annual registration fees for its continued protection under the Act.
The relevant fees are prescribed in the Schedule to the Patents and Industrial Designs
Regulation 2002. The legislation also vests certain rights and privileges on the owners
of patents and designs.
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This legislation must be read together with the Income Tax Act. The tax legislation
imposes taxes on income earned from revenue derived from the use of the patents and
industrial designs.
Biological inventions and processes would definitely be protected by this legislation.
The real issue here is whether the rights of holders of traditional biological knowledge
who contribute to a biological invention which is registered under this legislation are
recognized by the Act. The Act has been fashioned to protect industrial property
rights and thus, excludes traditional biological knowledge.
4.5.2 Copyright and Neighbouring Rights Act
Intellectual property rights are currently protected under the Copyright and
Neighbouring Rights Act 2000. The legislation was developed under the aegis of the
World Intellectual Property Organization (WIPO) when PNG became a member of
WIPO on 10 th July, 1997. Being a member of WIPO PNG had to ensure that the
legislation was enacted before 2000 so that it could meet the deadline under the
TRIPS Agreement. The Copyright and Neighbouring Rights Act is a standard WIPO
law which has been adopted to suit PNG’s circumstances. This legislation and the
Patents and Industrial Designs Act must be considered together. The latter relates to
industrial property rights while the Copyrights and Neighbouring Rights Act is
primarily to protect intellectual property rights taking the form of works,
performances, sound recordings and broadcasts. The scope of protection provided by
the legislation is stipulated by section 3.
3. Application.
(1) This Act shall apply to works, performances, sound recordings and
broadcasts existing at the coming into operation of this Act provided that the
terms of any protection of such works, performances, sound recordings or
broadcasts have not expired under any Act or under a law of the country of
origin that requires protection under an international treaty to which Papua
New Guinea is a party.
(2) Nothing in this Act constitutes a breach of, or default under, or terminates an
agreement or obligation under a contract on works, performances, sound
recordings or broadcasts concluded or existing at the coming into operation
of this Act.
(3) The provisions of this Act concerning the protection of literacy and artistic
works shall apply to:
(a) works of authors who are citizens of, or have their habitual residence in,
Papua New Guinea; and
(b) works first published in Papua New Guinea and works first published in
another country and also published in Papua New Guinea within thirty
days, irrespective of the nationality or residence of their authors; and
(c) audiovisual works the producer of which has his headquarters or
habitual residence in Papua New Guinea; and
(d) works or architecture erected in Papua New Guinea and other artistic
works incorporated in a building or other structure located in Papua New
Guinea.
(4) The provisions of this Act shall apply to works that are eligible for protection
in Papua New Guinea by virtue of, and in accordance with, any international
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convention or other international agreement to which Papua New Guinea is
party.
(5) The provisions of this Act on the protection of performers shall apply to:
(a) performers who are citizens of Papua New Guinea; and
(b) performers who are not citizens of Papua New Guinea but whose
performances:
(i) take place within Papua New Guinea; or
(ii) are incorporated in sound recordings that are protected under
(iii)
this Act; or
have not been fixed in a sound recording but are included in
broadcasts qualifying for protection under this Act.
(6) The provisions of this Act on the protection of sound recordings shall apply
to:
(a) sound recordings the producers of which are citizens of Papua New
Guinea; and
(b) sound recordings first fixed in Papua New Guinea; and
(c) sound recordings first published in Papua New Guinea.
(7) The provisions of this Act on the protection of broadcasts shall apply to:
(a) broadcast of broadcasting organizations the headquarters of which are
situated in Papua New Guinea; and
(b) broadcasts transmitted from transmitters situated in Papua New Guinea.
(8) The provisions in this Act shall apply to performers, producers of sound
recordings and broadcasting organizations that are eligible for protection by
virtue of, and in accordance with, any international convention or other
international agreement to which Papua New Guinea is party.
Section 5 expands the scope of section 3 by enumerating the types of work that are
protected by the legislation. Protection of biological inventions is veiled in these two
provisions. The type of biological invention that may be protected under this Act
would include soft technology such as computer software, instructional manuals and
published texts relating to a biological invention developed by Papua New Guineans
and foreigners living and working in PNG. An imported soft technology relating to a
biological invention may be protected under this legislation. The process of invention
is however, excluded from protection by section 5 of the Act.
The owner of copyright has protection over his or her work during his or her lifetime
and 50 years after his or her death. This is a standard period of protection provided
under the TRIPs Agreement. When compared to the Patents and Industrial Designs
Act, the protection provided by this legislation is very weak. The legislation does not
provide a mechanism for registering copyright and also for monitoring of the
unscrupulous use of copyright.
4.5.3 Trade Marks Act
The aim of this legislation is to protect trade marks. Trade marks is defined by section
1 of the Act.
“Trade mark” means a mark used or proposed to be used in relation to goods for
the purpose of indicating, or so as to indicate, a connection in the course of trade
between the goods and a person who has the right, either as proprietor or as
registered user, to use the mark whether with or without an indication of the
identity of that person;
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In so far as it relates to IPR, there is little the legislation does to protect those rights.
However, this legislation will become significant when dealing with the
commercialization of a biological invention.
4.5.4 Income Tax Act
The Income Tax Act does not specifically provide for the protection of IPR, but makes
provision for the taxation of benefits derived from IPR. The pertinent provisions of
the Act are found in Division 12 which encompasses sections 171 to 184. The
legislation is visionary as it provides for the taxation of benefits derived by owner of a
“unit of industrial property”. This term is defined by section 171 as “rights possessed
by a person as:
• The grantee or proprietor of a patent for an invention granted in PNG;
• The owner of a copyright subsisting in PNG;
• The owner of a design registered in PNG and
• A licensee under such a patent, copyright or design. A unit of industrial
property also includes equitable rights in respect of such a patent, copyright or
design or in respect of a licence under such a patent, copyright or design.
Section 172 explains the scope of the legislation in the following terms.
172. Application.
(1) This Division applies to the owner of a unit of industrial property who—
(a) became the owner of the unit by reason—
(i) of being the inventor of an invention and being granted a patent for
that invention; or
(ii) of being the first owner of the copyright to which the unit relates; or
(iii) of being the author of the design to which the unit relates and
obtaining the registration of that design,
and, before the unit came into existence, incurred expenditure of a capital
nature directly in relation to devising the invention, producing the work in
which the copyright subsists or producing the design, as the case may be; or
(b) incurred expenditure of a capital nature on the purchase of the unit of
industrial property; or
(c) acquired the unit of industrial property by virtue of the disposal, in
whole or in part and otherwise than for valuable consideration, of a
unit of industrial property by the owner of that last-mentioned unit in a
case where a deduction under this Division in respect of that unit has
been allowed or is allowable in an assessment in respect of income of
that last-mentioned owner or would have been so allowable if that unit,
or the invention, work or design to which that unit relates, had been
used by that owner for the purpose of producing assessable income,
and has used the unit of industrial property of which he is the owner, or the
invention, work or design to which that unit relates—
(d) in the year of income or a previous year of income for the purpose of
producing assessable income; or
(e) in a year preceding the first year of income to which this Act applies for
the purpose of producing income that would, if this Act had commenced
to have effect at the commencement of that year and had applied to
income of that year, have been assessable income.
(2) Where the owner of a unit of industrial property—
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(a) became the owner of the unit by reason of being granted a patent for an
invention as the assignee of the inventor or by reason of obtaining the
registration of a design as the assignee of the author of the design; and
(b) incurred expenditure of a capital nature in obtaining the assignment,
he shall, for the purposes of this Division, be deemed to have incurred
that expenditure on the purchase of the unit of industrial property.
For taxation purposes, the effective life of an industrial unit commences from the year
of income during which the owner of the unit first used that unit, or the invention,
work or design to which the unit relates, for the purpose of producing assessable
income and ends. Section 180 states that for a patent or design, the effective life of the
patent ends at the end of the year of income during which the patent or design will
terminate. For a copyright, it will be at the end of the year of income during which a
period of 25 years, commencing on the date on which the owner of the unit became
the owner, will expire or at the end of the year of income during which the copyright
will terminate, whichever will first occur.
Section 180(2) further explains that: (1) a patent shall be deemed to terminate at the
expiration of a period of 16 years after the date of the patent; (2) a copyright shall be
deemed to terminate on a date on which it ceases to subsist and (3) a design shall be
deemed to terminate on a date 15 years after the date on which the registration of the
design took effect. However, where a person acquires a unit of industrial property that
relates to a copyright in respect of a work of joint authorship, after the expiration of a
period of 50 years after the death of the author who first died, the copyright shall, for
the purposes of the application of Subsection (1), in relation to that person, be deemed
to terminate on such date as, having regard to the expectation of life of the surviving
author or authors, the Commissioner General determines.
The Act also sets out a number of principles which must be adopted where taxation of
IPR benefits is to be calculated. For instance, section 173 sets out the rules about
calculating the annual deductions and sections 174, 176 and 179 establish rules on
how to calculate the deductions where a unit of industrial property has lapsed or been
disposed.
Sections 183 and 185 of the Act provide two interesting situations. First, section 183
stipulates that a patent can be purchased by the State. Where the State purchases the
patent, the owner is deemed to have disposed of the patent and thus, not liable to any
further taxation.
183. Use of patent by the State.
Where—
(a) a person is, or has been, the owner of a unit of industrial property that
relates to a patent; and
(b) a lump sum is paid to that person in respect of the making, using, exercising
or vending by the State, or by a person authorized by the State, of the
patented invention for the purposes of the State,
that first-mentioned person shall, for the purposes of this Division, be deemed to
have disposed of the unit in part, at the time of payment, in consideration of the
payment of that lump sum.
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Section 185 covers monetary benefits derived from IPR which are being used
overseas. This provision states that “where the owner of a unit of industrial property
has obtained or is obtaining a benefit from a right exercisable in a place outside PNG,
being a right that relates to the invention, work or design to which the unit of
industrial property relates, the Commissioner General may determine that any
deduction allowable under this Division in respect of the unit of industrial property
shall be reduced by such amount as the Commissioner General, having regard to that
benefit, thinks fit, and the deduction shall be reduced accordingly”.
The Income Tax Act envisages that people will benefit from inventions developed in
PNG and also overseas. The legislation seeks to target these benefits through the
taxation mechanisms provided therein.
The taxation regime postulated by the Act is broad and does cover biological
inventions. All biological inventions registered under an IPR regime will most
certainly fall within the ambit of the Income Tax Act. For patents and industrial
design, Income Tax Act must be considered with the Patents and Industrial Designs
Act and for literary works, the Copyright and Neighbouring Rights Act. The
formulation of an IPR regime by the government in relation to biodiversity must take
into account Division 12 of the Income Tax Act, Patents and Industrial Designs Act
and the Copyright and Neighbouring Rights Act.
4.5.5 National Agriculture and Research Institute Act
The relevant provisions of the Act are sections 40 and 43. Section 43 empowers the
Institute to use research results obtained in the performance of its functions under this
Act for commercial purposes through business activities with or through joint venture
partnerships with any public or private body. The commercialization of PGRFA raises
issues of ownership and benefit sharing. In the case of the Institute, section 40
expressly states that all “intellectual properties and patents designed and derived
from the work of the Institute are the sole property of the Institute, and the
Institute shall have legal and sole right to protect these properties and patents
and may take legal action against any person or organization violating this
right.”
Section 40 therefore, vests the ownership of all biological inventions by NARI
scientists in the institution. It would follow that only NARI as an institution can
register patents under the Patents and Industrial Designs Act. Can NARI scientists be
registered as co-owners of the patents Unfortunately, section 40 excludes them from
gaining any interests in a patent.
4.6 Conclusion
Biodiversity protection and sustainable use is clearly a national concern. Although the
concept came into prominence only in the 1990s, many of the pre-1990 environmental
statutes did promote such a concept. The leaders in this area are: (1) the Conservation
Areas Act and the Fauna (Protection and Control) Act. Since the 1990s, later pieces
of legislation have either made express or implicit reference to the concept. These
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include: (1) the Organic Law on Provincial Governments and Local-level
Governments 1995; (2) the Fisheries Act 1998; (3) the Environment Act 2000 and (4)
the International Trade (Fauna and Flora) (Amendment) Act.
The trend, though veiled, is to improve and strengthen biodiversity law in PNG. The
statutes which have been reviewed above do not amply cater for the protection and
sustainable use of biological diversity. For instance, issues of ABS, IPR and
compensation to landowners have not been envisioned by the statutes or are not
adequately covered by the current legal regime. Most of these laws are either sector or
specific issue oriented. These include laws such as the Forestry Act, the Fisheries
Management Act, the Dumping of Wastes at Sea Act, the Prevention of Dumping of
Waste at Sea Act and the Physical Planning Act. Their focus is very narrow and they
have little general application.
An issue that has emerged over the years since the inception of National Parks,
WMAs and now conservation areas, is the intrusion into these areas of large-scale
natural resources development projects. Are these development projects excluded
from these protected areas The scheme of the Mining Act, the Oil and Gas Act and
National Parks Act would curtail any mining and petroleum projects in National
Parks. Unfortunately, these two pieces of legislation do not accord the same privilege
to WMAs and conservation areas. It may be argued that the use of the term “any
other Act” in section 8(1) of the Mining Act expands the reservation of land to
include legislation such as the Fauna (Protection and Control) Act and the
Conservation Areas Act. However, this argument will be struck down when
considered in the light of the term “reserved land” and the scheme of the Act – its
allegiance to the Land Act 1996.
Nonetheless, the way forward is for DEC and PINBio to collaborate with the
Department of Mines and also the Department of Petroleum and Energy to explore
possibilities under the Mining Act and the Oil and Gas Act to establish protected areas
using these two pieces of legislation and the Fauna (Protection and Control) Act and
the Conservation Areas Act. It is possible that through administrative arrangements,
protected areas under the two latter Acts may be strengthened by the two former laws.
In the mining sector, the formulation of the current Sustainable Mining Policy
provides an excellent opportunity for DEC and PINBio to pursue this goal.
The review of the relevant laws highlights an urgent need to adopt an all embracing
legislation that deals specifically with biodiversity protection and sustainable use.
Such a legislation should clearly establish: (1) an institution and vest it with the
responsibility to promote, coordinate research and development of biological diversity
or its components; (2) a framework for access through the PIC mode; (3) rules on
benefit sharing; (4) rules on IPR and (5) guidelines on establishing biodiversity
protected area.
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5: Research and Development in Biodiversity
5.1 Introduction
This part of the paper contains material adopted from the consultant’s work on
Biosafety under the UNEP/DEC project in 2003. Given that the same legal regime
applies to research and development in biological species and the close nexus
between the CBD and the Cartagena Protocol, relevant parts of that work is adopted
in full hereunder.
There are a series of legislation that have either a direct bearing on biodiversity or
some implicit connection to biological species. The legal matrix in Table 8 shows the
appropriate pieces of legislation and the relevant provisions of those statutes that have
an effect on research and development of biological diversity and its components.
Each of these statutes and their provisions are discussed separately below.
Table 8: Legislation on Research and Development of Biological Species
Legislation
Relevant Provisions
Cocoa Act 1981 s10 and Reg 5
Coffee Industry Corporation (Statutory Functions ss6, 7
and Powers) Act 1991
Conservation Areas Act 1978 Preamble, s9, 31, 32
Criminal Code Act 1974 ss90, 230
Crocodile Trade (Protection) Act 1974 ss11, 17
Dangerous Drugs Act 1952
s3, Schedule
Environment Act 2000 ss4, 7, 11, 12, 13
Fauna (Protection and Control) Act 1966 ss6, 7, 10, 27, 28, 30
Fisheries Management Act 1998 ss9, 25, 30, Reg 5
Institute of Medical Research Act 1967
s5
ss4, 5, 6, 8, 9, 10, 12, 13,
International Trade (Fauna and Flora) Act 1979 Schedule 1
Kokonas Indastri Koperesen Act 2002 ss4, 34 - 37
Local-level Governments Administration Act 1997 ss15, 38
Medicine and Cosmetics Act 1999
ss3, 4, 6,7, 9, 14, 15, Part V
(ss20-32), 45
National Agriculture Research Institute Act 1996 ss3, 4, 40, 43,
National Agriculture, Quarantine and Inspection ss4, 5
Authority Act 1997
National Aids Council Act 1997
s5
National Narcotics Control Board Act 1992 ss13, 24
National Institute of Standards and Industrial ss4, 5, 41, 43, 44, 47
Technology Act 1993
National Parks Act 1982 s9, Reg 7
Oil Palm Industry Corporation Act 1992
s5
Organic Law on Provincial and Local-level ss5, 42, 44, 72, 80
Governments 1995
Pacific Adventist University Act 1997
s5
Papua New Guinea University of Technology Act ss5, 12
1986
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Plant Disease and Control Act 1953 ss7, 8, 9, 10, 16, 17,
Regulations
Poisons and Dangerous Substances Act 1952 s4
Provincial Governments Administration Act 1997 s16
Public Health Act
Parts IV-VII
Public Hospitals Act 1996
s7
Spice Industry Act 1989 ss10, 24
University of Goroka Act1997
s5
University of Papua New Guinea Act 1983 s12
University of Vudal Act 1997
ss5,12
5.2 Research and Development Organizations
There are a number of organizations which are directly involved in research and
development of biological species. These organizations are generally empowered
under the specific legislation establishing them to conduct research and develop
processes and mechanisms to give meaning to their research results. A close
examination of the legislation that establish these organizations reveal that there are
two categories of research and development organizations.
The first category covers those institutions which have a general power to conduct
research - meaning both applied and adaptive research. This group comprises mostly
the educational institutions of higher learning. These include the University of Papua
New Guinea (UPNG); Papua New Guinea University of Technology (Unitech);
University of Goroka; Vudal University; Pacific Adventist University and Divine
Word University.
The second category of organizations under this section, have a more specific or
special research and development orientation. The research aims and objectives of
these institutions are much narrower and directed toward either biological diversity or
a component of biological diversity. This group comprises mostly the research
institutes and specifically related organizations. These include the NARI; Medical
Research Institute; National Aids Council; National Fisheries Authority, FRI,
Coconut and Cocoa Research Institute, and the Coffee Research Institute.
This distinction is important for two purposes. First, the task of identifying and
formulating an appropriate legal framework to cater for biodiversity protection and
development is made a little easier. Second, it provides a yardstick to pinpoint those
institutions and organizations which have the mandate to engage in research and
development of genetic resources. A review of the various pieces of legislation
highlighted below reveal that they do not adequately cater for research and
development of genetic resources. Although the Fisheries Management Act does
adopt sustainability principles including the precautionary approach and the
preservation of biodiversity which are key features of the CBD and the Cartagena
Protocol, it stops short of providing a strong and clear framework for research of
marine biodiversity in the fisheries sector. The laws that may have some strong
bearing on research and development of genetic resources are the National
Agriculture Research Institute Act and the Medical Research Institute Act. The
biotechnology work that is currently being done at the Unitech and other higher
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learning institutions may be broadly covered by the blanket provisions of their
relevant statutes and By-laws or Regulations.
5.2.1 Research and Development in Higher Learning
Institutions
Under this heading, specific roles of the institutions of higher learning relating to
research and development of biological resources will be discussed.
5.2.1.1 University of Papua New Guinea
The UPNG was established by a pre-Independence legislation called the University of
Papua New Guinea Act (consolidated to No.63 of 2000). The legislation is quite
peculiar because it does not specifically empower the university to undertake research
and development programs. The closest the Act comes to this subject is section 12.
This provision spells out the functions of the Senate. One of these functions is to
ensure the maintenance of standards of admission, instruction, education, research and
examination. The possible gap in the Act is however, rectified by the various
university regulations and possibly the School By-laws made under the auspices of
the Act. These Regulations set the parameters for the conduct of research by staff and
students of the university which may extend to research in biological resources.
Acting on this general mandate, UPNG has been able to conduct research into
biological diversity for years. Some of these research activities have been undertaken
by scientists at the university themselves and in many cases, through collaborative
research with other national and international research organizations. Recently,
UPNG concluded MOUs with several international research organizations to conduct
biological research to develop medicines for a number of diseases which affect the
people of PNG. These are shown in Table 9.
Table 9:
MOUs Between PNG Institutions and Foreign Organizations
Research Program
Participating
Disciplines
National
Collaborator
International
Collaborator
MOUs
MTAs
&
Approval
Research by
TSC/DEC
Drug
Discovery/Screening
• HIV/Aids
• TB
• Malaria
• Cancer
• Other antibacterial
Biochemistry
• Molecular
Genetics
Biology
• Ethnobotany
• Material
Collection/
Taxonomy
• Voucher prep
(plants and
marine)
Chemistry
• Bioassay
guided
fractionation
FRI, Lae
• Plant Id
Chemical
Technology/
UOT
• Material
extraction
• Assay/antibacterial
IMR/Goroka
US NCI
• Cancer
• HIV/AIDS
University
Utah
• Cancer
• HIV/AIDS
• Malaria
• TB
University
British
Columbia
• Cancer
of
of
UPNG &
NCI (2001)
UPNG &
Utah (2001,
2003)
UPNG &
UBC (2002)
Research
Permits
approved on
request, i.e,
Research
Proposals
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Venom & Toxins
• Snake Venom
Microbiology
• Cell Culture
• Bioassay
Pharmacology
• Cell Culture
• Bioassay
• In vivo assay
• Drug
mechanism
Physiology
• Cell Culture
• In vivo assay
• Physiological
studies
Biology
Haematology
• Envenomation
• Anti-venom
Pharmacology
• Envenomation
• Anti-venom
IMR/Goroka
• Epidemiology
Consortium of
universities:
University of
California,
Santa Cruz,
University of
Michigan and
Oregon State
University
• Cancer
University of
Illinois at
Chicago
• TB
• Malaria
James Cook
University
• Epidemiology
• Envenomation
• Anti-venom
University of
Melbourne
• Epidemiology
• Envenomation
• Anti-venom
UPNG &
USC (2003)
UPNG
UMich
(2003)
&
UPNG &
OSU (2003)
UPNG &
UIC (2003)
UPNG &
JCU (Final
Draft)
UPNG &
UniMel
(Draft)
Initial
proposal with
JCU
approved in
2002
The MOUs provide a framework for the further elaboration of issues of ABS and IPR.
There is no time limit for the MOUs, but they may be reviewed every five years. Are
these MOUs legal The answer to this question is affirmative. The UPNG Act
empowers the UPNG to enter into agreements and MOUs with individuals and
organizations in the pursuit of its objects. These arrangements are therefore, lawful
and valid under the UPNG Act.
5.2.1.2 Papua New Guinea University of
Technology
Unitech was created under the auspices of the Papua New Guinea University of
Technology Act 1986. The relevant sections of the legislation on research and
development are sections 5 and 12. Section 5 sets out the objects of the university.
One of these objects is to achieve academic and professional excellence to meet those
needs through teaching, research and community service. Section 12 stipulates the
powers of the Academic Board which includes the power to maintain standards of
admission, instruction, education, research and examination. These two provisions
provide general powers to the university to undertake research and development
programs which may include research into genetic engineering. Specific By-laws of
the university may explain the fields of research and development including research
into biological resources which may be undertaken by the various departments of the
university.
An impressive research and development initiative of Unitech is the Bio-technology
Centre. This Centre is being developed into a world-class bio-technology laboratory.
The Centre has been working closely with NARI in genetic engineering. Their
particular emphasis is on developing PGRFA. A major concern for the Centre is biosafety.
What are the consequences of releasing LMO into the environment Who will
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e responsible for adverse biological consequences of the LMO on the environment
These and other issues such as ethics and IPR need to be stipulated by law. The
current legal regime does not provide any protection or safeguards regarding these
issues.
5.2.1.3 University of Goroka
The university was formerly an extension of UPNG. It was formally created as a
university under the University of Goroka Act 1997. This legislation takes its form
from the Papua New Guinea University of Technology Act. Thus, the relevant
provisions of the legislation relating to research and development of biological
diversity are similar to those of the former legislation (sections 5 and 12). The
comments relating to the Unitech equally applies to the University of Goroka.
5.2.1.4 University of Vudal
The Vudal University was created at the same time as the Goroka University. Vudal
was formerly an agricultural college affiliated to Unitech. It was established as a
university in 1997 under the University of Vudal Act. The important sections of the
legislation are sections 5 and 12 which are similar to the Goroka University and
Unitech statutes. Section 5 provides for the objects of the university which includes
the achievement of academic and professional excellence to meet those needs through
teaching, research and community service). Section 12 deals with the functions of the
Academic Board which includes maintaining standards in research, etc. These two
provisions provide a blanket cover to scientists at the Vudal University to conduct
research into biological resources and also for their development.
5.2.1.5 Pacific Adventist University
This university was established under the Pacific Adventist University Act 1997. The
legislation is similar to the University of Goroka Act and the University of Vudal Act.
These three pieces of legislation were enacted at the same time in 1997. The
comments regarding Unitech apply equally to the Pacific Adventist University. This
is a private university operated and managed by the Seventh Day Adventist Church.
Prior to 1997, it was a training college for the church. Since its establishment as a
university, it has expanded its focus and offers programs compatible with the other
smaller universities in PNG.
5.2.1.6 Divine Word University
The other private university is the Divine Word University. The university was
formerly a training college managed by the Society of Divine Word, an organization
within the Catholic Church. The college was reconstituted as a university under the
Divine Word University Act 1999. The relevant provision of the legislation which
empowers the university to engage in research and development is section 4. This
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provision sets out the powers of the university, one of which is provide for research
into all branches of learning and to assist in its practical application. Like the other
three newer universities, this legislation provides an umbrella mandate for the
university to engage in research and development of biological resources.
5.2.2 Special Research Organisations
Several research organisations are considered under this heading. These organisations
have been created by legislation to deal with either specific biological species or the
focus of their research is to meet a designated national goal or vision.
5.2.2.1 National Agriculture Research Institute
NARI was established under the National Agriculture Research Institute Act 1996.
The two pertinent provisions of the Act are sections 3 and 4. Section 3 enumerates the
objects of the Institute which include the conduct and fostering of research into: (1)
any branch of biological, physical and natural sciences related to agriculture; (2)
cultural and socioeconomic aspects of the agricultural sector, especially of the
smallholder agriculture and (3) matters relating to rural development.
Section 4 sets out the functions of the Institute. These functions include: (1) to
generate and adapt agricultural technologies and resource management practices
appropriate to the needs, circumstances and goals of smallholders; (2) to promote and
facilitate applied and adaptive research in food crops, livestock, alternative cash
crops, and resource management; (3) to promote the use of appropriate agricultural
technologies and provide essential technical services to improve the productivity,
income, nutritional status and food security, resource base and quality of life of rural
households and communities; (4) to develop and promote ways of improving the
output, quality, harvesting, post-harvesting, handling and processing and marketing of
food crops, livestock produce and alternative crops; (5) to maintain and conserve the
diversity of genetic resources for food and agriculture, act as custodian for these
resources, and promote the effective utilization of these resources in the country; (6)
to update and maintain the national inventory on soil resources; and (7) to develop,
promote and maintain sustainable practices in agriculture.
Unlike the other relevant pieces of legislation, the National Agriculture Research
Institute Act is probably the only statute that expressly empowers the organization to
engage in research and the commercial development of PGRFA. The legislation is
quite visionary and strongly promotes research into PGRFA purposes.
5.2.2.2 Institute of Medical Research
The Institute of Medical Research finds its basis in the Institute of Medical Research
Act (consolidated to No.20 of 1998). The IMR was established prior to Independence
and has contributed significantly to medical research in the country. The crucial
provision of the legislation is section 5. This section stipulates the objects of the
Institute. The objectives of the Institute are the conduct and fostering of research into:
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• Any branch of medical science or biology;
• Anthropological and sociological aspects of health and ill-health; and
• Matters relating to public health generally.
In the pursuit of its objectives, the Institute may conduct or foster research into: (1)
problems of morbidity and mortality in childhood; (2) virus diseases, particularly
those associated with arbor viruses; (3) nutritional problems and (4) kuru. These
research activities can be conducted jointly with universities, hospitals, medical and
other scientific institutions, and with such other bodies as the Council determines.
Section 5 of the Act provides a blanket cover to the Institute to conduct research into
biological resources either on its own or in collaboration with other relevant research
institutions or specialized organizations for the discovery and development of
medicines and other pharmaceutical products.
5.2.2.3 National Aids Council
PNG has the highest incidences of the disease HIV/AIDS in the South Pacific region.
HIV/AIDS has apparently become a national epidemic. This growing problem led to
the establishment of the National Aids Council in 1997 under the auspices of the
National Aids Council Act 1997. The relevant provision of the legislation relating to
research and development is section 5. This provision sets out the functions of the
National Aids Council, one of which is “to initiate, encourage, facilitate and monitor
research, whether medical, epidemiological, psychological, sociological, legal and
otherwise, on or in relation to HIV/AIDS in Papua New Guinea, and to ensure that
any such research is carried out in accordance with its objects”. This provision of the
legislation clearly empowers the Council to engage in research which may involve
genetic resources and consequently the development of a medicine to cure the disease.
In the light of this, UPNG, the Utah University and the United States National Cancer
Institute have embarked on a research project to identify and possibly develop drugs
to cure HIV/AIDS. This biodiscovery project will be conducted over an unspecified
period of time.
A new HIV/AIDS law which has recently been enacted by Parliament which will also
impact on HIV/AIDS research is the HIV/AIDS Management and Prevention Act
2003. The main purpose of the Act is to protect people infected with HIV/AIDS from
discrimination and stigmatization. The pertinent part of the legislation relating to
HIV/AIDS research is Part II, Division 2, containing sections 12-21. The key feature
of these provisions is the requirement of voluntary informed consent from infected
persons prior to their involvement in a research project. Individuals and organizations
involved in HIV/AIDS research must avert their minds to this legislation.
5.2.2.4 National Fisheries Authority
The National Fisheries Authority is created by the Fisheries Management Act 1998.
The legislation expressly authorizes the National Fisheries Authority to engage in
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esearch and development of marine biological resources. The particular provision of
the legislation which provides for research and development is section 6. This
provision lists the functions and powers of the National Fisheries Authority which
includes the operation of research facilities aimed at the assessment of fish stocks and
their commercial potential for marketing and the collection of data relevant to aquatic
resources.
The challenge for the National Fisheries Authority is to capitalize on its legislative
mandate and strengthen its research into marine biological diversity. There are
positive indications that the Authority has engaged in collaborative research in this
area with other international and national organizations, but it must take a strong lead
in marine biological research, especially for food security issues.
5.2.2.5 Forest Research Institute
The creation of the FRI must be considered in the light of the forestry transformation
that began with the findings of the infamous Barnett Commission of Inquiry in 1987.
The new Forestry Policy that was adopted in 1990 explicitly called for the
establishment of the FRI. The main purpose of the FRI is to conduct forest research
activities which promote and support the operational aspects of the management and
utilization of the forest resources on a sustainable basis.
Some of the core activities of the FRI include:
• Development of silvicultural, forest and logging techniques for enhancing the
continuity of forest resources;
• Improving the utilization of timber and other forest products;
• Protection of forests and forest products from biodegradation and fires;
• Maintaining and enhancing botanical research, agroforestry and community
forestry; and
• Environmental and social impact of forest exploitation.
Under the proposed Eco-Forestry Policy, the FRI will take the lead in forest research
activities which promote sustainable forest management, forest resource conservation
and poverty alleviation. It is proposed that this task will be undertaken by FRI,
UPNG, NARI and Unitech. International research agencies may also be encouraged to
participate in these research activities.
5.2.2.6 Coconut and Cocoa Research Institute
The Coconut and Cocoa Research Institute has been established for a very specific
purpose – to research into coconut and cocoa. The mandate of the Institute is to
develop new techniques which will promote the sustainability of the coconut and
cocoa industries. The Institute draws its mandate from the Cocoa Act and the Kokonas
Indastri Koporesen Act 2002.
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5.2.2.7 Coffee Research Institute
The Coffee Research Institute was set up specifically to conduct research into coffee.
Like the other two commodity research based organizations (FRI and Cocoa and
Coconut Research Institute), its mandate is restricted to coffee research. The relevant
legislative framework that enhances its work is the Coffee Industry Corporation
(Statutory Functions and Powers) Act 1991.
5.3 Research on Specific Biological Species
This section of the paper deals with laws that deal with specific biological species for
research and development. Unlike the previous section, this part deals with relevant
statutes that provide the mandate for research and development of biological species.
5.3.1 Animals Act
This legislation deals with cattle, sheep, horses, goats and dogs, and cruelty to animals
generally. The relevant provisions of the legislation relating to research and
development in relation to these animals are sections 94, 95 and 97. Section 94
defines cruel acts and criminalizes these acts. Section 95 prohibits cruelty to animals
and section 97 prohibits cruelty to animals while in captivity. Any of the animals
protected under this law which may be used for research and development will fall
under the ambit of this legislation.
Biological research into any of the animals listed above must adhere to this law. The
legislation does not prohibit research, but regulates the techniques and methodologies
used in animal research to prevent cruelty to animals.
5.3.2 Cocoa Act
This Act empowers the Cocoa Board to undertake several functions. Section 10 which
sets out the functions of the Board provides that, it is the function of the Board to: (1)
control and regulate the growing, processing, marketing and export of cacao, cacao
beans, cocoa beans and cocoa products; (2) promote the consumption of Papua New
Guinea cocoa beans and cocoa products; and (3) promote research and development
programmes for the benefit of the cocoa industry.
Cocoa research is vested in the Coconut and Cocoa Research Institute. The Cocoa
Board promotes cocoa research through financial assistance to the Institute.
Under the Cocoa Regulation, section 5 provides for the setting of quality standards
for exports. These standards may impact on the initial research and development of
genetically engineered cocoa.
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5.3.3 Kokonas Indastri Koporesen Act 2002
This legislation was enacted in 2002 to replace the Copra Marketing Board Act 1997.
The legislation covers research into coconut. The relevant provisions of the Act are
sections 34-37 located in Division 2 of the legislation and section 4. Section 4
enumerates the functions of the Koporesen which includes the promotion of research
and development programmes for the benefit of the coconut industry.
Section 34 of the legislation establishes a Research Fund for the purpose of funding
research into coconut species for the benefit of the industry. Section 35 imposes a
research levy not exceeding 3% of the price per tonne of coconut products paid to
producers and processors or exporters of copra. Section 37 makes it explicitly clear
that funds from the Research Fund shall only be used for research and not for any
other purposes.
Division 2 of the legislation is a replica of the Copra Marketing Board Act. Under the
former legislation a research cess of not more than 2% was imposed. The funds from
the Research Fund would most likely be channelled to the Coconut and Cocoa
Research Institute. The Institute is given the mandate to conduct copra research.
5.3.4 Crocodile Trade (Protection) Act
Although this legislation does not relate specifically to research on crocodiles, section
11 of the Act may provide a small leverage for research. Section 11 of the Act
regulates the farming of crocodile. It is possible to argue that the farming of
crocodiles may involve research and development of crocodile species.
5.3.5 Fauna (Protection and Control) Act
This law provides for the protection of endangered fauna. It begins by allowing the
government under section 6 to declare protected fauna. The Act then declares under
section 7 that protected fauna is the property of the State. Sections 10, 28, and 29
when read together, allow for research on protected fauna through a licensing process.
Section 10 is in the following terms:
Section 10: Permit to take protected fauna.
(1) The Conservator may, on the application of a representative of an approved
organization issue to him a permit authorizing the taking of protected fauna in
accordance with the permit.
(2) A permit under Subsection (1) may specify—
(a) the protected fauna that may be taken; and
(b) the numbers that may be taken; and
(c) the area within which the fauna may be taken; and
(d) such further or other conditions as seem necessary or desirable to the
Conservator
(3) A person who takes a protected animal in contravention of a condition of a
permit under this section is guilty of an offence.
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Penalty:
A fine not exceeding K40.00 for each animal in respect of which the
offence has been committed.
Section 28 and 29 are more explicit in their terms in that they make provision for the
taking of fauna species or specie from a protected area, sanctuary or a WMA. Taking
of fauna species for research and development is therefore, permissible under the Act.
5.3.6 International Trade (Fauna and Flora) (Amendment) Act
2003
The legislation actually controls the exportation and importation of specimen under
Schedule 1 to 5 of the Act. A researcher intending to conduct research into biological
species must consult the legislation to ascertain whether the biological species fall
under any of the Schedules. If they fall under Schedule 1, 2 or 3, the researcher or
organization would have to apply for a permit from the DEC Secretary to either
import or export the biological species for research.
5.3.7 Medicines and Cosmetics Act 1999
This Act is very relevant to research and development of medicines and cosmetic
products using genetic resources. It provides a regulatory framework for the
development and manufacture of medicinal products and devices, and cosmetics. The
pertinent provisions are sections 3, 4, 6, 7, 9, 14, 15, Part V (sections 20-32) and 45.
Section 3 empowers the Minister to declare products as medicinal, medical device or
cosmetics. This declaration can cover both imported and locally manufactured
products. Section 4 deals with exemptions from the Act and also regulates the
importation of medicinal products. Section 6 and 9 regulate the importation,
manufacture, sale and supply of medicinal product, device and cosmetic through the
licensing process. Section 7 regulates the manufacture of medicinal products, devices
and cosmetics.
Section 7: Manufacture of products.
(1) Subject to Subsection (3), a person shall not, with effect from the appointed
day, on any premises, manufacture for sale a product to which this Part applies
unless the manufacture by him of that product is authorized by a licence
granted under this Part.
(2) A person, who contravenes Subsection (1), is guilty of an offence.
Penalty:
A fine not exceeding K5000.00 or imprisonment for a term not exceeding
12 months, or both.
(3) The provisions of Subsection (2) do not apply to the manufacture of a medicinal
product to which this Part applies—
(a) by a medical practitioner or dentist for use in the treatment of a patient
under his care; or
(b) by a pharmacist on the premises on which the business of the
pharmacist is carried out in open shop; or
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(c) on the premises of a public health institution for sale (otherwise than by
wholesale) on or from those premises.
The key point about section 7 is that it relates to the manufacture and sale of a
medicinal or pharmaceutical product. The discovery of medicinal or pharmaceutical
products through biological resources and their manufacture in PNG will be covered
by this provision. A licence to manufacture such medicine or cosmetic product must
be obtained under section 9 of the Act.
Section 9: Application for licence.
(1) A person may apply to the licensing authority for a product licence or a licence
authorizing him—
(a) to manufacture on specified premises a medicinal product or a
cosmetic or a medicinal device; or
(b) to sell by wholesale or retail a medicinal product or a cosmetic or a
medicinal device; or
(c) to import a medicinal product or a cosmetic or a medicinal device for sale
or distribution; or
(d) to sell by retail a medical device or a cosmetic or a medicinal device,
to which this Part applies.
(2) An application for a licence shall be—
(a) in the prescribed form; and
(b) lodged with the licensing authority; and
(c) accompanied by the prescribed non-refundable application fee.
Section 14 provides for standards to which products are to comply with and section
15 states that a product will not be sold if it does not conform to the standards. Part V
(sections 20-32) establishes the Pharmacy Board and provides for the control of
pharmaceutical products.
Section 45 provides a firmer control on manufacture, sale and importation of a
medicinal or cosmetic product manufactured through genetic engineering. It states
that in the public interest, the Minister can direct the manufacturer, seller and importer
of the product to provide him with information on the product before it is released to
the public. A medicinal or cosmetic product that does not meet the requirements
under the legislation may be prohibited from sale.
Section 45: Minister may require information as to medicinal products, etc.
(1) The Minister may, by written notice served on a person who manufactures,
imports or sells a medicinal product or cosmetic specified in the notice, require
that person to furnish in writing to the Minister or such other person as may be
specified in the notice, within such time, not being less than 14 days as specified
in the notice, such information relating to the medicinal product or cosmetic as
the Minister requires.
(2) A notice referred to in Subsection (1) may be served on any person whether or
not the medicinal product or cosmetic referred to in the notice is a medicinal
product or cosmetic in respect of which information has previously been
furnished.
(3) A person on whom a notice is served under Subsection (1) shall comply with the
notice within the time specified in the notice.
(4) A person on whom a notice is issued under Subsection (1) shall not knowingly
furnish any information that is false or misleading in a material particular.
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(5) A person, who—
(a) fails to comply with Subsection (1), (2) or (3); or
(b) contravenes Subsection (4),
is guilty of an offence.
Penalty:
A fine not exceeding K5,000.00 or imprisonment for a term not
exceeding six months, or both.
5.4 Control on Research and Development
The two previous sections dealt with research and development institutions and
research into biological species. This section provides an insight into the kind of
controls that have been inserted into the various pieces of legislation for the protection
of the national interests. The type of controls that each of these laws embody is
considered in some detail below.
5.4.1 Coffee Industry Corporation (Statutory Functions and
Powers) Act 1991
This Act does not expressly relate to research and development of coffee products.
However, two of its provisions do signal that research and development of coffee and
coffee products may be regulated by the Coffee Industry Corporation. These two
provisions are sections 6 and 7. Section 6 spells out the powers of the Corporation.
One of the powers of the Corporation is setting standards for coffee and controlling
the planting and sale of any form or type of coffee. This may cover coffee being used
for research. Section 7 is more specific in terms of control. It stipulates that the
Corporation has the power to impose an export levy on any form or type of coffee or
coffee product. This would clearly cover genetically modified coffee.
5.4.2 Conservation Areas Act
One of the most significant pieces of legislation that promotes the protection and
conservation of biological diversity is this piece of legislation. An important aim of
the legislation is to provide for the preservation of the environment and of the national
cultural inheritance by the conservation of sites and areas having particular biological,
topographical, geological, historic, scientific or social importance. This Act was
brought into force in 2003 with the creation of the Conservation Council.
The creation of the Conservation Council now means that the Council can proceed to
assess requests from landowners who want to invoke the provisions of the legislation.
An important provision of the legislation relates to the establishment of the
Conservation Area Management Committee and the Management Plan of a
conservation area. Any biological research in a conservation area must comply with
the criteria (if any) stipulated in the Management Plan and such a research project
must be approved by the Conservation Area Management Committee and the
Minister.
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5.4.3 Criminal Code Act
The Criminal Code Act provides a number of penalties which have some bearing on
research and development. These include sections 90, 230, 286, 287 and 327. Section
90 imposes a high degree of responsibility on public servants in the conduct of their
duties especially in relation to any property of a special character or the carrying on of
any manufacture, trade or business of a special character.
Section 90: Officers charged with administration of property of a special character
or with special duties.
A person employed in the Public Service, who—
(a) is charged by virtue of his employment with any judicial or administrative
duties respecting—
(i) any property of a special character; or
(ii) the carrying on of any manufacture, trade or business of a special
character; and
(b) has acquired or holds, directly or indirectly, a private interest in any such
property, manufacture, trade, or business; and
(c) discharges any such duties with respect to—
(i) the property, manufacture, trade or business in which he has the interest;
or
(ii) the conduct of any person in relation to it,
is guilty of a misdemeanour.
Penalty:
Imprisonment for one year, and a fine at the discretion of the court.
A person who causes or omits to take an act with a property which causes risks to
lives, safety or health of the public is deemed to have committed an offence under
section 230.
Section 230: Common nuisances.
A person who—
(a) without lawful justification or excuse (proof of which is on him) does any act,
or omits to do any act with respect to any property under his control, by which
act or omission danger is caused to the lives, safety, or health, of the public; or
(b) without lawful justification or excuse, (proof of which is on him) does any act,
or omits to do any act with respect to any property under his control, by which
act or omission—
(i) danger is caused to the property or comfort of the public or the public are
obstructed in the exercise or enjoyment of any right common to all
inhabitants of Papua New Guinea; and
(ii) injury is caused to the person of some person, is guilty of a misdemeanour.
Penalty:
Imprisonment for a term not exceeding two years.
The duty of care under this provision is quite high. The provision is designed to
protect the public from the careless discharge of any biological species which will
affect the lives, health and safety of the public. Sections 286 and 287 impose a high
responsibility on persons doing dangerous acts and on persons in charge of dangerous
things. The final provision of the legislation is section 327. This provision provides a
general offence for a negligent act causing harm.
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It must be understood that these provisions are old and would not have envisioned the
kind of research and development on biological resources under the auspices of the
CBD. However, the five provisions of the Act cover certain aspects of research which
may include research into biological resources. Seen in this context, a person dealing
with biological resources which may cause harm to humans obtains a higher
responsibility under the Act to ensure the safety and health of humans.
5.4.4 Dangerous Drugs Act (Consolidated to No 23 of 1990)
This Act regulates the cultivation, production, and importation of dangerous drugs.
Dangerous drugs are enumerated in the Schedule to the Act. Three sections of interest
are section 3, 4 and 8. Section 3 prohibits the production, cultivation, importation, etc
of dangerous drugs; section 4 provides for import licenses for dangerous drugs and
section 8 requires the safe storage of dangerous drugs.
The provisions of this Act do apply to the research and development of biological
resources. The legislation permits the cultivation and production (meaning research
and development) of genetically modified drugs which may be used for medicines.
5.4.5 Environment Act 2000
The relevant provisions of the Act are sections 4, 7, 11, 12 and 13. Section 4 sets out
the objects of the Act which generally relate to the protection of the environment, the
ecological system, biodiversity and the control of impacts on the environment.
Section 7 imposes a mandatory duty on individuals and corporations not to cause
harm to the environment and section 11 imposes hefty penalties for causing serious
environmental harm. Section 12 imposes a penalty for causing material environmental
harm and section 13 provides that causing environmental harm generally will invoke
a penalty under the Act.
The Act is oriented towards the control of development activities and their impacts on
the environment. Thus, the Act will be of relevance more in relation to development
of biological resources than research into biological species. Where a research has
proven successful and there is a proposal for the development of the result into some
tangible products then the provisions of the Act relating to application for permits and
environmental impact assessment may apply.
An important observation is that the law does not cater for an impact assessment of
genetic engineering on biodiversity. Even an impact assessment on the release of
LMOs and their likely impact on the biodiversity are not covered under this
legislation.
5.4.6 Local-level Governments Administration Act 1997
This legislation establishes local-level governments in Districts. Local-level
governments must be consulted on any research and development activity initiated in
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their local area. According to sections 15 and 38 they are there on the ground to
implement laws and policies of the local-level government and the national and
provincial governments and they also perform the administrative functions of the
national and provincial governments in the local area.
Local-level governments are also given the mandate by section 115 of the Organic
Law on Provincial Governments and Local-level Governments to participate in any
natural resources development projects located within their area. The implication of
this provision is that local-level governments must be consulted on any research
project in their area. Moreover, pursuant to section 44 of the Organic Law, local-level
governments may enact local laws which may regulate biological research and
development in their area.
5.4.7 National Agriculture, Quarantine and Inspection
Authority Act
The role of the National Agriculture, Quarantine and Inspection Authority (NAQIA)
in relation to biological resources is quite significant. It is probably the most
appropriate body under the current legal framework to monitor, control and manage
the importation and exportation of biological diversity or its component.
Section 4: Objects of the Authority.
(1) The objects of the Authority are the conduct of quarantine and inspection of—
(a) any animal end species; and
(b) any fish species; and
(c) any plant species; and
(d) any products derived from animals, fish and plants,
to prevent pests or diseases from entering in or going out of Papua New
Guinea.
(2) On the basis of recommendation of the Authority and with the approval of the
Minister and on such terms and conditions as the Minister thinks proper, the
Authority may enter into and carry out arrangements, without the functions of
the Authority, with other technical and scientific institutions and such other
bodies as the Authority determines for the purposes of the Authority.
Section 4 of the Act which sets out the objects of the Authority stipulates that the
objects of the Authority are the conduct of quarantine and inspection of: (1) any
animal end species; (2) any fish species; (3) any plant species and (4) any products
derived from animals, fish and plants. The aim of the Authority is to prevent pests or
diseases from entering in or going out of PNG.
Section 5: Functions of the Authority.
The functions of the Authority are—
(a) to advise the Ministry and the National Government on policy formulations
and legislative changes pertaining to agriculture quarantine and inspection
matters; and
(b) to monitor and inspect all imports of animals, fish and plants and their parts
and products, including fresh, frozen and processed food to ensure the imports
are free from pests, diseases, weeds and any other symptoms; and
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(c) to regulate and control all imports of animals, fish and plants and their parts
and products, including fresh frozen and processed food to ensure the imports
are free from pests, diseases, weeds and any other symptoms; and
(d) to undertake all necessary actions to prevent arrival and spread of pests,
diseases, contamination, weeds, and any undesirable changes pertaining to
animals, fish and plants and their parts and products, including fresh, frozen
and processed foods; and
(e) to monitor, inspect and control the export of animals, fish and plants and their
parts and products to ensure that they are free from pests, diseases, weeds and
any other symptoms; and
(f) to undertake all necessary actions to ensure that the export of animals, plants,
fish and their parts and products are free from pests, diseases, weeds and any
other symptoms so as to provide quality assurance to meet the import
requirements of importing countries; and
(g) to issue permits, certificates and endorsements pertaining to imports and
exports of animals, fish and plants and their parts and products to provide
quality assurance and to ensure that they are free from pests, diseases, weeds,
and any other symptoms; and
(h) to inspect and treat vessels, aircraft, vehicles, equipment and machinery, that
are used in importing and exporting animals, fish and plants to ensure that
they are free from pests, diseases, weeds and any other symptoms; and
(i) to regulate the movement of animals and plants from one part of the country to
another to control and prevent the spread of pests, diseases, weeds, and any
other symptoms; and
(j) to undertake and maintain inspection and quarantine surveillance pertaining
to pests, diseases, weeds, and any other symptoms on animals, fish and plants
within and on the borders of the country; and
(k) to monitor, assess and carry out tests on animals, fish and plants and their
parts and products that are introduced into the country to ensure that they are
free of pests, diseases, weeds and any other symptoms; and
(l)
to liaise with other countries, international agencies and other organization in
developing policies. strategies and agreements relating to quarantine, quality
and inspection matters in respect of animals and plants; and
(m) to provide quarantine and inspection information and services to individuals,
agencies and other organizations within the country and overseas in respect of
animals and plants: and
(n)
(o)
(p)
to levy fees and charges for any of the purposes of this Act and any regulations
made thereunder; and
to exercise all functions and powers and perform all duties which, under any
other written law, are or may be or become vested in the Authority or are
delegated to the Authority; and
to do such matters and things as may be incidental to or consequential upon the
exercise of its power or the discharge of its functions under this Act.
Under section 5, the Authority has the power to prevent, monitor, inspect and control
the importation and exportation of animals, fish and plants and their parts and
products to ensure that they are free from pests, diseases, weeds and any other
symptoms.
These two provisions empower NAQIA to monitor any research into biological
resources and also their development. NAQIA also has the legal mandate to monitor
and control the exportation of biological species from PNG required for research and
development outside of the country.
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5.4.8 National Institute of Standards and Industrial
Technology Act
The National Institute of Standards and Industrial Technology has two primary
objectives. These are: (1) setting of national standards for industrial production, trade
and economic development and (2) conduct of scientific and technological research to
support Papua New Guinean industries. These objects are explained in more detail in
section 4 of the Act. These objectives are to be achieved through the various functions
of the Institute stipulated by section 5 of the Act.
National technical standards in respect of a commodity, practice, process or product
are provided for under section 41. Section 34 provides for the legal units of
measurements for the country and section 43 sets out a mechanism for the
introduction of standard marks and labels for any commodity for manufacture,
production, processing or treatment. Section 44 provides for licenses to use standard
marks and labels and section 47 provides for the control of export quality.
This legislation does not necessarily relate to the research in biological species.
However, it does impinge on the development of genetically modified organisms on a
large scale in terms of the commercialization and industrialization of the research
results. Any legal framework for the development of biological resources should be
consistent with this legislation.
5.4.9 National Cultural Commission Act 1994
The work of the National Cultural Commission does not directly relate to research
and development in biological species. However, as the custodian of PNG cultures, it
is empowered under section 4 of the Act to assist and facilitate, preserve, protect,
develop and promote the traditional cultures of the indigenous peoples of the country.
According to section 4 of the Act then, the Commission can object to or prevent a
research in biological resources if the research will adversely impinge on the
traditional cultural values or traditional biological knowledge of a local community or
people.
5.4.10 National Narcotics Control Board Act 1992
One of the principal functions of the National Narcotics Bureau as stipulated under
section 23 of the Act is to monitor drug cultivation, manufacture, sale, etc of drugs.
However, according to section 13, a person or institution can obtain a licence from the
Board to conduct scientific, clinical, social, educational, psychological, physical and
biological research for training and education purposes. This licence also extends to
the possession of plants from which drugs are derived. Section 13 then provides an
opening for genetic research into drugs prohibited under the Act. The research into
these drugs must, however, be confidential and conducted in a safe manner.
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5.4.11 National Parks Act (Consolidated to No.33 of
1989)
The pertinent provision of the legislation is section 9. This provision empowers the
Director of National Parks to allow for zoological and botanical research on reserves
and introduce to, or remove from, reserves any flora or fauna. Section 9 is in the
following terms:
Section 9: Powers of Director.
(1) Subject to this Act, the Director has such powers as are necessary or convenient
for, or incidental to, the carrying out of his functions.
(2) Without limiting the generality of his powers under Subsection (1) and subject
to Subsection (3), the Director may, in the performance of his functions—
(a) preserve and protect natural features of interest or beauty; and
(b) fence in or otherwise enclose, clear, level, drain, plant and form walks and
drives through and over reserves or parts of reserves; and
(c) construct dams and reservoirs for the retention and formation of expanses
of water on reserves; and
(d) in consultation with the Conservator appointed under the Fauna
(Protection and Control) Act 1966—
(i) establish and maintain zoological gardens on reserves; and
(ii) permit and assist zoological and botanical research on reserves;
and
(iii) introduce to, or remove from, reserves any flora or fauna; and
(e) in accordance, where appropriate, with the Water Resources Act 1982,
construct banks, drains or other works, and do all other acts and things,
necessary to prevent soil erosion and damage by fire on reserves; and
(f) with the approval of the Minister, construct, maintain and manage, or
authorize persons to construct, maintain or manage, camps, caravan parks,
kiosks, refreshment rooms, hostels, hotels, places of entertainment and
facilities for games or amusements on reserves for the use of the public and
of youth groups approved by the Minister; and
(g) with the approval of the Minister, grant a licence as prescribed or other
right to use and occupy—
(i) a camp, caravan park, kiosk, hostel, hotel or place of entertainment; or
(ii) refreshment rooms or facilities for amusement, on a reserve or on land
accepted by the Minister under Section 5; and
(h) demand and receive rents, fees or charges for a licence or right granted
under Paragraph (g); and
(i) issue permits as prescribed for camping, fishing or other activities; and
(j) do any other thing calculated to improve or ornament reserves, or to adapt
reserves to the purposes of public recreation, health or enjoyment.
(3) Subsection (2) does not authorize the Director to do or permit to be done, an
act or thing in relation to a reserve that is inconsistent with the purpose for
which the land included in the reserve has been reserved.
(4) In the exercise of his powers under Subsection (1), the Director shall have
regard to physical planning considerations.
Section 9 of the Act is strengthened by section 7 of the National Parks Regulation.
Section 7 provides general prohibitions regarding the use of a national park. When
these two provisions are read together, it is clear that research into biological species
in National Parks is permissible under the legislation. The scope and methodology of
biological research must however be approved by the Director of National Parks.
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5.4.12 Oil Palm Industry Corporation Act 1992
Only a single provision of the Act empowers the Oil Palm Industry Corporation to
engage in research and development of oil palm. The provision is section 5. This
provision states that among the powers of the Corporation, it has the power to
promote the development of the oil palm industry, and in particular: (1) the
implementation of improved husbandry technologies to increase production by smallholders
and (2) the introduction of techniques for effective control and regulation of
oil palm pests and diseases by small-holders. It is arguable that research and
development in oil palm can be conducted and controlled under the auspices of this
provision.
5.4.13 Organic Law on Provincial and Local-level
Governments 1995
The Organic Law establishes the provincial and local-level governments as the second
and third levels of government. The Organic Law devolves legislative, administrative
and financial powers of the national government to provincial and local-level
governments. The relevant provisions of the Organic Law are sections 5, 42, 44, 72
and 80. Section 5 establishes the provincial and local-level government system.
Section 42 and 44 set out the legislative powers of provincial governments and locallevel
governments respectively. Provincial and local-level government administrative
systems are established under section 72 and section 80 empowers the provincial and
local-level governments to perform certain functions of the national government.
Because provincial and local-level governments are the agents of the national
government at the provincial and local level, they must be consulted on various
activities (including research and development in biological resources) located in
provinces and local government areas where these activities are being conducted. This
requirement is also explicit in sections 115 and 98 of the Organic Law.
5.4.14 Papua New Guinea Science and Technology
Council Act 1992
The Papua New Guinea Science and Technology Council Act is the most relevant
legislation that can control, monitor and provide guidelines for the research and
development in biological resources in PNG. Given that scientific research into
biological resources and their commercialization will involve new technologies, they
fall within the ambit of the legislation. The pertinent provision of the legislation is
section 3.
Section 3: Functions of the Council.
The functions of the Council are—
(a) to gather, information on scientific and technological activities taking place or
being planned or required and, through a process of analysis and consultation,
determine their positive and negative implications and the optimum course of
action; and
(b) to maintain liaison with government agencies and organisations, private sector,
universities, research institutions and non-government organisations and any
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international bodies and institutions to ensure cross-sectoral consideration of
scientific and technological issues; and
(c) to advise the National Executive Council, Central agencies, Government
Departments and other appropriate bodies regarding the merits, implications,
relative priority, potential duplication and the resource requirements of
policies, programmes and projects; and
(d) to review and co-ordinate prospective aid projects specifically related to science
and technology and to advise upon priorities for additional donor assistance;
and
(e) to facilitate effective links—including joint research and the exchange of
specialists between Universities, research Institutes, Statutory Authorities and
the private sector; and
(f) to conduct or cause to be conducted technological assessments on the potential
social, economic and cultural impacts (both positive and negative) of projects,
(g)
and thus anticipate and plan for these consequences; and
to establish working groups, sub-committees and to implement other such
arrangements as the need arises; and
(h) in addition to sponsoring and supporting other scientific and technology
activities, to award and encourage the awarding of grants for research, training
scholarships, prizes, pilot applications, visits, special initiatives for women,
conferences, exchanges, exhibitions, displays, directories of personnel and of
work in progress, publications and other forms of information dissemination;
and
(i)
to advise the National Executive Council and Central agencies of Government
regarding the best use of the presently available financial resources, facilities,
scientists, technologists, educators and trainers.
This law was enacted in 1992, but has not been implemented since. Before the
legislation is implemented the following questions need to be addressed by the
government. Should this legislation be brought into force and fully utilized for the
control and monitoring of research and development of biological resources If the
answer is affirmative, the next issue is does the legislation meet the requirements of
the CBD, the Cartagena Protocol and other MEAs considered in this paper
Obviously the answer would be in the negative. If the legislation is to be implemented
then some amendments will need to be made to the legislation to enable the Act to
capture some of the objectives of the relevant MEAs and the aspirations of the
country.
5.4.15 Plant Disease and Control Act
There are two aims of the Act. These are: (1) regulating and controlling diseases of
plants and (2) prohibit and restrict the keeping of certain plants. The pertinent
provisions of the legislation are sections 7, 8, 9, 16 and 17. These provisions relate to
the destruction and control of plant diseases. Section 7 provides for the destruction of
plants to prevent the spread of disease and, section 8 and 9 empower the Minister to
declare disease areas and also host plant in disease areas. Section 10 empowers the
Minister to declare noxious plants and section 16 provides for the introduction or
removal of plants. Under this provision the Minister can declare that the introduction
of a plant into or the removal of a plant from, a part of the country is prohibited
absolutely or subject to such restrictions and conditions as are specified in the notice.
And section 17 prohibits the growing, etc of certain plants.
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Any research into plants and their potential to spread diseases are regulated under this
legislation. The key is to identify which plants are likely to spread disease and also be
noxious and dangerous to human health.
Plants which may be used for biological research are not restricted by this legislation.
However, where a plant is either noxious or likely to cause harm to humans and the
biodiversity, it can be removed and destroyed under this Act. The main short fall of
the legislation is that it does not adopt the precautionary approach which would
enable the use of risk assessment before researching into a plant or before its release
into the environment.
5.4.16 Poisons and Dangerous Substances Act
The crucial provision of the Act is section 4. This provision empowers the Minister to
delete any item from, vary any item in, or add an item to, a schedule, and from the
date of the publication of the notice that schedule shall be read subject to the deletion,
variation or addition made by the notice. The relevant poisons and dangerous
substances are spelt out in Schedules I, II, III of the Act. The relationship between
research and development and the Act is that, any research including biological
research which will involve the use of poisons and dangerous substances, must
comply with this legislation.
5.4.17 Provincial Governments Administration Act 1997
Like the local-level governments, provincial governments are the agents of the
national government in the provinces. This is clearly stated by section 16 of the
legislation. Because they are considered as such, any research into biological species
and their development in the provinces would require the consent of a provincial
government in the first instance. The Provincial Governments Administration Act
basically clarifies the administrative structures of provincial governments, their
composition and their responsibilities. Their power to monitor biological research and
development would therefore flow from sections 115 and 98 of the Organic Law on
Provincial Governments and Local-level Governments.
The main concern under the Act relates to access and PIC. These issues are not
accommodated under the legislation. The current practice of obtaining approval from
provincial governments for biodiversity research is not supported by this legislation.
The formulation of a national biodiversity law and policy must take into account this
law.
5.4.18 Public Hospitals Act 1996
The principal section of the Act which relates to research and development is section
7. This provision declares the functions of Hospital Boards. The section vests an
obligation on the Board to provide facilities for medical research. The Act does not
clarify what kind of research facilities the Board is required to provide.
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Section 7: Functions of Boards.
(1) Subject to the National Health Administration Act 1997, a Board has, in
respect of the public hospital for which it is established, the following
functions:—
(a) to administer and maintain the public hospital and its facilities for the care
and treatment of the local people;
(b) to engage in and assist local authorities in the provision of community
health education and public health information services to local
communities;
(c) to provide or assist in the provision of facilities for, or in connection with,
education, instruction or practical training of its professional staff and
other employees;
(d) to disseminate information and knowledge in the field of public health for
the benefit of the public;
(e) to provide facilities for teaching, instruction, research or postgraduate
studies in medicine, dentistry, obstetrics, paediatrics,
surgery, ophthalmology, pathology, psychiatry, radiology, oncology and
other related fields as the Board may consider fit;
(f) to encourage research and experimentation into any areas of health
services, medical activities or paramedical activities;
(g) to administer and expend money appropriated by the State for the
purposes of the public hospital;
(h) to consult and co-operate with appropriate authorities and with other
organizations, associations and persons on matters related to its activities;
(ha) to supervise, assist and monitor curative services provided by lower level
health facilities and to support their operations;
(i) generally to do such supplementary, incidental or consequential acts and
things as are necessary and convenient for carrying out or giving effect to
its functions.
(2) The Board of a public hospital may perform any of its functions in co-operation
with the Provincial Government of the province in which the public hospital is
situated or with any body established by that Provincial Government for the
purpose of encouraging the provision of health services in the province.
It is however, important to observe that this section relates to the provision of research
facilities. It does not relate to the field of research nor does it specify the status of the
researchers. Thus, it is possible to argue that given that public hospitals deal with all
kinds of diseases and medical problems, the field of research and development is
quite broad, embracing biological research. The legislation does not limit the term
“researchers” to medical practitioners. Researchers other than medical practitioners
may utilize hospital facilities to conduct research.
5.4.19 Public Health Act
A piece of legislation which has close affinity to the Public Hospitals Act, but does
not mandate research is the Public Health Act. This legislation does not explicitly
relate to research in biological resources, but regulates the treatment of patients with
certain kinds of diseases such as malaria (Part VII, sections 78-80), Hansen’s disease
(Part VI, sections 71-77), venereal disease (Part V, sections 48-70) and other
infectious diseases (Part IV, sections 14-47). Research involving patients to find cures
for these diseases are regulated by the Public Health Act. The key element of the
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legislation in relation to research involving patients is that they must be consulted and
that PIC must be obtained from them before they can be engaged in the research.
Ten important Regulations have been adopted pursuant to the Public Health Act
clarifying in deal some of the issues contained in the Act. These are the:
• Public Health (Barbers’ Shops) Regulation
• Public Health (Dairy Farms) Regulation
• Public Health (Drinking Water) Regulation
• Public Health (Infectious Diseases) Regulation
• Public Health (Mental Disorders) Regulation
• Public Health (Paint) Regulation
• Public Health (Sanitation and General) Regulation
• Public Health (Septic Tanks) Regulation
• Public Health (Sewerage) Regulation
• Public Health (Underground Water Tanks) Regulation
Individuals and institutions engages in biological research involving public heath as
defined by the Public Health Act must take into account the Act and these
Regulations. Thus, the use of hospital facilities and the treatment of patients at these
hospitals are governed by the Public Hospitals Act and the Public Health Act.
5.4.20 Spice Industry Act 1989
Like the other agricultural commodities laws, the Spice Industry Act also provides for
the promotion of research and development of the spice industry. Section 10 of the
Act empowers the Spice Board to promote research and development programmes for
the benefit of the spice industry. Research into spices and their variants is thus
permissible under the legislation. Under section 24 a spice research facility can be
inspected and investigated by spice inspectors. Apart from this narrow control
mechanism, the legislation does not clarify processes for the research and
development of spices.
5.5 Conclusion
The general observation is that the legal regime does permit research in and
development of biological diversity. Some of the laws provide a clear mandate while
others do not. Where there has been a grey area in the law, some scientists in several
of the research and learning institutions have proceeded to work on biological
resources within the narrow corridors of permissibility provided by the relevant
statutes. But these corridors are sporadic and spread throughout the field of law. The
inadequacy of the legal framework leaves the scientists, other researchers and their
institutions, and their property rights vulnerable to abuse, exploitation and possible
legal actions. A more serious consideration is that the health and livelihood of the
people and the biodiversity are at stake. The current legal framework provides very
little or no protection at all to the people of PNG, their biodiversity and the
researchers.
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Many of the pieces of legislation that provide mandate for biological research and
development are inadequate. Most of these laws seem to target a specific element of
research or a component of biodiversity. Laws which establish institutions of higher
learning contain gaps in relation to biodiversity research and sustainable use and also
on ABS and IPR. The gaps in these laws put these institutions, their scientists,
researchers, resource owners and research projects in jeopardy.
The call for a national policy, legal and administrative framework on biodiversity
protection and sustainable use can no longer be brushed aside. If PNG is to protect its
citizens, biological diversity, scientists and researchers, and national institutions, the
government must introduce these changes.
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6: PINBIO
6.1 Introduction
In this part of the paper, the establishment, objectives, and operations of PINBio will
be examined. The aim of the review is to ascertain whether the work of PINBio is
adequately covered by the various policies and laws reviewed above and whether
there are strong and reasonable grounds for the establishment of PINBio through a
legislative framework.
6.2 Establishment of PINBio
The government through the National Executive Council established the PINBio in
November 1998 by its decision No. 262/98. The primary mission of PINBio is to
develop and establish a conservation based industry in PNG through appropriate
research and development mechanisms. The main objectives of PINBio are:
• Document, collect, cultivate and make inventories of biological diversity,
including indigenous knowledge
• Assess conservation status of biological resources and ensure development of
effective strategies for their maintenance and preservation
• Standardize mixed remedies or herbal preparations from traditional medicine
and sure their safe and effective use
• Discover and evaluate bio-active compounds from PNG’s rich biological
resources as agents to treat and prevent human diseases
• Discover and evaluate natural products that may be used as agrochemicals to
improve crop production and generate economic benefits
• Discover and evaluate potential uses of genetic material
• Conserve biodiversity and facilitate benefits through carbon trade mechanisms
• Develop, share and manage information/database relating to biodiversity
• Provide facilities and resources for capacity building and facilitate transfer of
technology
• Seek protection on biological resources through intellectual property rights
including patents
These objectives are to be pursued through nine programs which have been initiated
by PINBio. These programs are:
1. Biodiversity Inventory
2. Biodiscovery
3. Agrobiodiversity
4. Biotechnology
5. Biodiversity Conservation through Carbon-offsets and Trade Initiatives
6. Biodiversity Database and Management System
7. Policy and Legislation
8. Training and Infrastructure Development
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9. Education and Awareness
Since its inception in 1998, PINBio has been managed by a Secretariat which is
currently located within DEC. The government has funded the PINBio since its
establishment through the normal budgetary process.
The Institute is ‘managed’ by an Interim Board which is headed by the Secretary of
DEC. Generally, the powers and functions of PINBio are exercised by the PINBio
Board. The Board is assisted by a Technical Steering Committee which is responsible
for the coordination of the nine programs of the Institute. The members of the
Technical Steering Committee are drawn from each of the nine programs (usually the
program leaders) and representatives of key government agencies.
The Technical Steering Committee ensures that there is coordination, transparency
and accountability in the organisation. The Technical Steering Committee also
ensures the implementation of the nine programs by allocating funds and providing
advice to each of the program through the team leaders.
6.3 PINBio Programs
The nine PINBio programs are quite autonomous and manage their different activities
separately from the other programs. The current arrangement appears to give
autonomy to all the different programmes. The programs are supervised by special
working groups or committees that comprise members representing various
government and non-government organizations involved in biodiversity. Although
these programs are designed to meet a specific objective, they are inter-related and
inter-dependent on each other.
Under the current arrangements, each program is headed by a lead agency. Thus,
Program 1 is headed by FRI; Program 2 - UPNG; Program 3 - NARI; Program 4 -
Unitech; Program 5 - DEC; Program 6 - PINBio Secretariat; Program 7 - Department
of Attorney-General; Program 8 - UPNG and Unitech, and Program 9 - Conservation
Melanesia. The aims and objectives of each of the programs are shown in Table 10
below.
Table 10:
PINBio Program Aims and Objectives and Participating
Institutions
Program Aims and Objectives Participating Institutions
1. Biodiversity Inventory/Survey/Collection
• Biological Inventory, Survey and Assess
Protected Areas
• Ethnobotanical and Ecological Inventory and
Collection
-Economic Use
-Medicinal Use
-Random Collection
• Documentation of Indigenous Knowledge
FRI, Unitech, National
Museum, UPNG, NARI,
Village Development Trust,
The Nature Conservancy,
DEC
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2. Biodiscovery
• Herbal/Traditional Medicine
• Drug Discovery
• Venoms and Toxins
• Aromatics
UPNG, Unitech, IMR, Pacific
Adventist University
3. Agrobiodiversity
• Agrobiodiversity (Agricultural Plant Genetics)
• Agro-chemicals
• Horticulture
Department of Agriculture and
Livestock, University of
Vudal, NAQIA, UPNG, Ramu
Sugar, FRI, Pacific Adventist
University, Unitech, Coconut
and Cocoa Research Institute
4. Biotechnology
• Biotechnology (Plant Genetics)
• Genetic Engineering
• Tissue Culture
Unitech, UPNG, NARI
5 Biodiversity Conservation/ Carbon Offset Sinks
• Protected Areas/ Marine Hotspots
• Reforestation
• Afforestation
• Reduced Impact Logging
• Agro-forestry
• Alternate Energy Source from Biomass
DEC, UPNG, FRI, Unitech,
National Research Institute,
Village Development Trust,
The Nature Conservancy
6. Biodiversity Database Management and Information Sharing
• BioRap
• Meta-Database
• Databases and Management for:
-Bioinventory and Collection
-Biodiscovery and Drug Discovery
-Biodiversity Conservation/Carbon Offset
Sinks
• Mechanisms for Accessing and Sharing
Information
PINBio Secretariat, all
members of the PINBio
network
7. Policy and Legislation
• Access to Genetic Materials, IPR, Benefit
Sharing
• Collaborative Arrangements or Agreements
-Research MOUs/MOAs
-MTAs
• National Guidelines for ABS and IPR,
Bioaccess, Biopolicy, Legislation
-Procedures for Research/Use of biological
resources
-Guidelines and Code of Conduct for Research
-IPR Protection
-Benefit Sharing Schedule
Department of Attorney-
General, DEC, Department of
National Planning, NAQIA,
National
Museum,
Conservation Melanesia,
UPNG, Unitech, National
Cultural Commission,
Department of Foreign
Affairs, National Research
Institute
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• Institutional IPR Policy
8. Training and Infrastructure Development
• Human Resource Training
-Biodiversity Assessment, Documentation,
Collection/ Sampling
-Natural Products Evaluation/Isolation and
Screening
-Data Analysis and Management
-IP Development and Management
-Natural Products Marketing
• Infrastructure
-Laboratories for Genetic Materials Analysis
-Genetic Repositories
-Herbarium
-Gene Bank/Seed Bank
-Botanical Gardens
Unitech, all member
organizations
9. Education and Awareness
• Information Packets/Training
• Conservation for Development Notes
• Information Brochures
• Newspapers, Radios, TV Programs
• Newsletter Columns
Conservation Melanesia, all
member organizations
6.4 Guiding Principles Governing Research and Development in
PNG
One of PINBio’s major objectives is to encourage and promote research and
development of biological diversity of the country. In the pursuit of this objective
PINBio has adopted a set of guiding principles to enable it to make informed
decisions on issues relating to biological diversity and the impact the research and
development initiatives will have in nation building. This set of guidelines is quite
broad and are divided into five different categories, namely; (1) Basic Research
Agreement; (2) Elements of Collaborative Research; (3) Principles Governing
Research towards Commercial Development; (4) Procedure for Research
Applications and (5) Criteria for Collection, Use and Transfer of Original Material.
6.4.1 Basic Research Agreement
There are several important principles which must be inserted into a Research
Agreement that is concluded between a national institution and a foreign collaborating
institution. These principles are adopted from the CBD. The text of the agreement
must contain these principles. These principles are:
1. The parties acknowledge the sovereignty of PNG over the biological resources
and agree that the project will enhance the knowledge, appreciation, protection
and sustainable use of these biological resources.
2. Parties agree to comply with the terms of the CBD and other related treaties.
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3. The parties agree to promote the relationship amongst the national and foreign
scientists and research institutions, and also:
• Promote education and infrastructure in PNG in the area of scientific
research and biodiscovery;
• Create opportunities for the protection of PNG’s biodiversity and its
sustainable use; and
• Encourage the commercial development of the results of the research
undertaken pursuant to the agreement.
4. The foreign collaborating institution must agree to transfer both soft and hard
technology related to the scientific exploration, collection of biological
materials, storage, scientific bioassay-guided isolation and characterization of
natural products and the discovery and development of therapeutic
commercial and industrial agents to the national collaborating institution.
5. The foreign collaborating institution recognizes the need to compensate PNG
and its peoples in the event of commercialization of a drug or product
developed from biological resources collected in PNG. The parties must agree
to be co-owners of any IPR and also agree on a Benefit Sharing scheme which
is equitable to both parties and other relevant stakeholders.
6. The national collaborator must agree to comply with the terms of the
agreement and also to ensure that the research project is conducted in a
diligent and cost-effective manner.
The onus is obviously on PINBio to develop appropriate rules and guidelines on
issues such as ABS and IPR. How will resource owners’ consent be obtained Who
should give consent At what levels of government should consent be obtained How
can consent be authenticated Who should obtain the consent of resource owners
What kinds of benefits should be shared Who should share these benefits What
remedies would be available to persons aggrieved by the consultation process or the
level of benefit he or she is entitled to How should foreign researchers be protected
in PNG These are issues which PINBio must address in developing appropriate rules
to enable the organization to effectively monitor and coordinate biological research
and development of biological resources.
6.4.2 Elements of Collaborative Research
There are several key indicators which must be fulfilled by a national collaborator or
collaborators and its or their foreign partners before a research proposal can be
deemed appropriate for PNG. These indicators include:
1. The research proposal must be developed jointly by the parties and must meet
existing criteria for research and export permits. Proposals submitted from a
foreign institution or individual must be accompanied by evidence that it is
being supported by a national institution.
2. Research applications involving the collection of samples, use, transfer or
export of original material must comply with existing national Material
Request Requirements.
3. A proposal must contain transparent and clear methodologies for the
collection, measurement (quantities), recording of data, habitat
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characterization, depth, natural history and morphology of each and every
original material that is being researched.
4. Taxonomic identification must be assigned in the field where possible and
voucher specimens preserved for further identification and analysis at national
collaborator institution and foreign collaborator institution. Duplicate plant
vouchers must be processed and kept at relevant national collaborator
institutions such as the FRI and the Motupore Island Research Centre of
UPNG.
5. National scientists from national collaborator institution must be encouraged
to participate in field collections and to observe field procedures, and share
expertise and experimental design.
6. The foreign collaborating institution must facilitate the training of PNG
scientific scholars at the institution of the foreign collaborator to assist in work
relating to PNG biodiversity. Such training should involve scientific
investigation, taxonomic, ecological, initial extraction of biological materials,
associated microbes followed by bioassay-guided isolation and structure
elucidation of pure compounds.
7. The proposal must include a caveat that “the goal of the collaboration is to
promote the sharing of scientific knowledge, expertise, research methods and
training, as well as, economic benefits to PNG”.
The inclusion of this set of information in the application will enhance and strengthen
the credibility of the project and will result in its approval. The inclusion of these
indicators also reflects the commitment of the foreign collaborating institution to the
national development goals of the country.
6.4.3 Principles Governing Research towards Commercial
Development
The commercial development of a drug or pharmaceutical product is the underlying
aim for most biological research projects. Some of these drugs may take years to
develop while others may take a much shorter time. However, very few drugs or
pharmaceutical products derived from biological diversity are developed in a very
short time. Whatever the length of time, the crucial issue is that the economic interests
of all the relevant stakeholders involved in the project are protected under the
auspices of the Basic Research Agreement. Some of the core principles that need to
be considered in the development of an ABS and IPR regime are:
1. The catalyst for entry into Phase II would be the application for patent
coverage by the parties or a member on any compound or genetic construct
derived from PNG.
2. A separate agreement should be negotiated for each product entering into
Phase II development.
3. The terms of such an agreement should apply equally to instances where an
invention is derived from a direct isolate from a natural product material; a
product structurally based upon an isolate from the natural product material; a
synthetic material for which the natural product material provided a key
development lead; or a method of synthesis or use of any aforementioned
isolate, product or material.
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4. The percentage of royalties negotiated as payments might vary depending on
the relationship of the marketed drug to the original isolated product. It is
understood that the eventual development of a drug to the marketing stage is a
long term process which may require 10-15 years.
5. Benefit sharing must be on an equitable basis, whether the drug or product is
based on synthetic or semi-synthetic variations of compounds or structurally
based natural products.
6. All scientists and individuals who contribute to the identification and
discovery of new chemotherapeutics, pharmaceuticals, industrial products or
molecular probes or genetic constructs should be compensated in terms of
royalties arising from patent agreements. It is understood that inventorship
will be determined under the patent law of the countries where the application
is made.
7. Compensation will include milestone payments at key stages of clinical
development.
8. If a natural product, isolated from a PNG source material is developed as a
commercial agent, and is required for semi-synthesis of such, then PNG
should be the first source of the raw material, unless the quality and quantity
of material is insufficient for such use.
9. If prior indigenous knowledge is involved in the collection of samples or
development of commercial agents, then suitable recognition should be given
to this intellectual property in terms of appropriate compensation and patent
inventorship status.
10. All licences granted on any patents arising from this collaboration should
contain a clause referring to the Basic Research Agreement and shall indicate
that the licensees have been apprised of the agreement.
11. Should any agent eventually be licensed to a pharmaceutical company for
further development or production and marketing, the licensee should be
required to comply with the terms outlined in 3, 7-9.
These broad principles are quite significant and are aimed at safeguarding the
interests of all the parties involved in the research project. It is imperative on the
government to provide a strong legislative framework to safeguard the interests of the
State and its people in biodiversity research and development. Without a strong
legislative framework, the country and its people will be deprived of the potential
benefits that will be derived from the scientific and industrial development of its
biological resources.
6.4.4. Procedures for Lodging an Application for a Research
Permit
An application for biological research in PNG must be lodged with PINBio through
its Secretariat situated within DEC. A proposal must be lodged with the Institute at
least six months prior to the commencement of the project. A research proposal must
contain the following important information:
1. Justification of the research;
2. Objectives of the research;
3. Methodologies to be applied in the research;
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4. Duration of the project;
5. Proposed site of study and chronogram of activities;
6. Collection of Samples;
• Common name, scientific name, age, quantity and sex where
appropriate;
• Manner in which the collection will be conducted;
• Place where collection will be conducted;
7. People to be involved in the study;
• Attach CV and summary profile of each person;
• Distinguish between core and temporary or visiting participants;
8. Brief History of Application outlining previous researches and outcomes;
9. Evidence of official support for the project from the proponents’ institution;
and
10. Evidence of source of funding.
The format of the research application is not difficult or dissimilar to those that are
applied in other jurisdictions. The impetus is on the applicant or applicants to provide
in full the relevant information and documents to enable PINBio to expedite the
approval process.
6.4.5 Criteria for Collection, Use and Transfer of Original
Material
The collection, use and transfer of an original material will involve delicate
methodologies and must comply with certain government regulations. In addition to
the conditions imposed under relevant laws, an applicant is also required to comply
with the following rules:
1. Any use of an original material must be approved by PINBio (DEC).
2. Approval for the collection of an original material is for a fixed period of six
months only. Any extensions must be approved by PINBio (DEC).
3. The amount for original material that is intended for transfer is:
• 1 kg wet weight of biomass for each marine specimen;
• 1 kg dried weight for plant materials; barks, leaves and stem being
treated as separate samples.
Sufficient quantity may be collected and made available to UPNG for the
purpose of voucher documentation, taxonomic work, scientific and material
storage (repository). Recollection amount at greater (for export) is subject to
the approval of PINBio (DEC).
4. Foreign collaborating institution must agree to retain control of original
material and also to obtain the PIC of PNG before it can transfer the original
material to a third party.
5. Publications arising from all research must include co-authorship, where
appropriate, PNG scientists and the national collaborating institution. Reprints
of the published material must be made widely available to the PNG scientific
community.
6. Applicant must comply with the requirements of relevant environmental laws
and other related laws of PNG.
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7. All collection of original material that is based on traditional knowledge must
be carried out with the PIC of the appropriate individuals, groups and relevant
government agencies.
This set of conditions may seem onerous to research applicants. However, given the
nature of the research and the potential benefits that may emanate from the research
results, it is essential for the country to put in place caveats that will safeguard the
interest of the country. PINBio is the custodian of the national interest in biological
diversity and therefore, it must balance this interest against the interest of foreign
research organizations. If these conditions are too cumbersome, PINBio must reevaluate
its position on this issue and find that balance.
6.5 Strategic Issues for PINBio
Over the last six years, PINBio has experienced a lot of impediments that have
hampered its operations. Some of the constraints include: (1) lack of direction and
coordination within the institutional framework; (2) insufficient funding for the
programs; (3) uncertainties over the future of PINBio and (4) lack of institutional and
personnel capacity. Also since its inception PINBio has expanded its scope of
operation and has encountered other emerging issues which require legislative
clarification. The clarification of these key issues will enable PINBio to actively and
efficiently perform its functions. The key issues are:
• Developing a strategy to coordinate access to PNG’s biodiversity;
• Developing an equitable benefit sharing framework;
• Developing a strategy to enable greater participation by provincial and locallevel
governments and the local communities in biodiversity matters;
• Strengthening the current nine programs for sustainability; and
• Defining the rights and duties of parties engaged in biodiversity initiatives.
The resolution of these issues is critical to the success of PINBio. The government
must seriously consider these issues and make a firm commitment by rectifying the
impediments and tackling the issues. Taking such an approach would enable the
government to achieve the full potential of the country’s rich biodiversity, and reap
the benefits that will come from its investment.
6.6 Future Direction
The establishment of PINBio in 1998 by the government highlights the value the
country places on its rich biodiversity. The government’s vision was to create an
institution which would coordinate research in the country’s biodiversity and develop
its biological resources for the benefit of the country. The government hoped that
through this institution, the country’s biological resources would be harnessed in a
coordinated and sustainable manner to ensure long-term benefits flowed to the
government and the people, especially those in the rural areas.
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Over the years, PINBio has matured in its focus and expanded its scope of operations.
This evolutionary process has created new opportunities and also opened up new and
difficult issues which PINBio cannot be able to embrace under its current structure
and mandate. Many of these issues require a strong legal framework to enable PINBio
to handle more actively and efficiently. If the recommendations contained in the paper
are implemented by the government, PINBio or its transformed model will be able to
protect the country’s biological diversity and ensure that it is used sustainably for the
benefit of the present and future generations.
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7: Conclusion and Recommendations
7.1 Conclusion
There is no doubt that PNG has a rich and unique biodiversity. This biodiversity is
however, facing threats of destruction from various quarters of the society. The major
threats to biodiversity are: natural resources development projects; large scale
agricultural projects and unsustainable gardening, hunting and fishing practices of the
local communities. These destructive activities have to be controlled to enable the
country to explore other economic, social and environmental benefits of biological
diversity. This will require strong political will and firmer commitments to research
and development into biological resources by the government and its key agencies.
The review clearly shows that PNG has made a concerted effort in addressing
biodiversity issues. The sectoral approach it adopted since independence is indicative
of the global practice of that time. However, over the years, the global community has
moved away from sectoral to a holistic approach. PNG has unfortunately not been
able to capture this paradigm shift. PNG has to take a new approach to implementing
its international commitments under the MEAs. The suggested approach is for PNG to
identify commonalities under the different MEAs and develop a single policy, law
and establish an institution, and task it with the responsibility of overseeing the
implementation of these obligations across the board.
The law and policy on biodiversity is incoherent in PNG. There are national policies
and laws that target biodiversity, but on a sectoral basis. There are also glaring gaps in
the policy and legal framework in relation to issues such as: access to biological
resources; benefit sharing from the development of biological resources and IPR.
Clearly a national biodiversity policy in the form of a NBSAP and a national
biodiversity law are required in PNG.
There are several pieces of legislation which impact on biodiversity research and
development. However, these laws are also restricted in scope and leave huge gaps in
relation to issues of access to biological resources, benefit sharing from the
development of biological resources and IPR. There are no clear rules on the control
of research and development of biological resources in PNG. The adoption of a
NBSAP and a national biodiversity law should incorporate these matters and spelt out
clear guidelines on biological research and development.
The government has acknowledged the deficiencies in the law and policy on
biodiversity and its inability to keep track with its obligations under the different
MEAs by establishing PINBio. PINBio is a unique institution because it seeks to
coordinate the different biodiversity activities through partnership and collaboration
between different State agencies and NGOs. The work of PINBio has expanded over
the years and it has encountered several important issues which has exposed its
vulnerability. PINBio and its work need to be strengthened and promoted nationally
and throughout the country. PINBio is currently at the crossroads. Whatever action
the government takes will either end the work of PINBio or strengthen it. In the
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interest of the country, PNG has to strengthen PINBio through a legislative
enactment.
7.2 Recommendations
The work that PINBio has undertaken with the close collaboration of the
Conservation Division of DEC is enormous, complex and innovative. There have
been suggestions that the current status quo should be maintained given the lack of
resources and the flexibility evident in the operations of PINBio. Another suggestion
is that the work of PINBio be assimilated by the Conservation Division of DEC.
There are advantages and disadvantages of both arguments. However, the reality is
that over the last six years that PINBio has been functional, it has become
overwhelmingly evident that a formal structure be created for PINBio given the
nature of its work. Two issues become critical if this option is adopted. First, if
PINBio is to be formally recognized through a legislative enactment, will its
operations duplicate or collide with the work of the Conservation Division of DEC
Second, if PINBio is re-created through legislation, will it be more effective and
successful
In relation to the first issue, the obvious answer is affirmative. If PINBio is created
and operates separately from DEC, its functions would run counter to the operations
of DEC. How then should these two creatures of government be engaged at a level
where they can co-exist The answer to this question is simple: PINBio must be
assimilated into the Conservation Division of DEC. The issue then moves to another
level. Should the Conservation Division be separated from DEC and become an
independent institution The answer would be in the affirmative.
The following recommendations are presented for consideration by PINBio and the
government:
Recommendation 1
PINBio and the Conservation Division of DEC be merged into a single
institution to be called the PNG Biodiversity Authority (PBA) and that a
legislation be formulated to establish the PNG Biodiversity Authority
Recommendation 2
The issues relating to ABS, IPR and other relevant biodiversity issues be left
to the PBA to deal with when it is established. In the interim, the prevailing
procedures and rules relating to access and benefit sharing and IPR
promulgated by PINBio and DEC continue to apply.
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Recommendation 3
A national workshop be held soon, to discuss certain aspects of this paper and
especially Recommendation 1. The national workshop should involve
representatives of relevant stakeholders such as: resource owners; State
agencies; provincial and local-level governments; research organizations;
industry and non-governmental organizations.
When these three recommendations are accepted by PINBio and the government, the
second critical issue raised above will be answered in the affirmative. The creation of
the PBA will enable the institution to become more effective and successful as the
inception of the PBA will enable it to receive government funding and also it can
raise its own revenues to sustain its operations. The creation of the PBA will also
signal’s the country’s firm commitment to fulfilling some of its international
obligations under the MEAs, particularly those under the CBD, the Cartagena
Protocol and other international instruments, such as, the Millennium Declaration,
Agenda 21 and JPOI.
In the provinces that were visited, there was overwhelming support for the work of
PINBio and it was generally agreed that the institution should be given legal mandate
to perform its functions. The creation of the PBA would therefore, be welcomed by
the provinces.
The creation of the PBA will not create unnecessary additional costs to the
government because the personnel, infrastructure and other resources currently
available within the Conservation Division of DEC will be transferred to the new
institution. Obviously certain powers and functions of the PBA will have to be refined
to avoid any conflict with the operations of the reformed DEC.
Another important proposition for the PBA is that it achieves one of the principal
objectives of the government under the Environment Act 2000 - the creation of an
institution (which will be similar to the Environmental Planning Authority of the
USA). Section 97 of the legislation clearly states that DEC will become a statutory
authority or be corporatized in the future. The intention of Parliament is therefore, to
corporatize DEC. The creation of the PBA will thus, partially achieve the
government’s objective. If the proposal for the creation of the PBA is accepted, the
draft Drafting Instructions contained as Annexure 3 should be considered.
151

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9: Annexes
This part of the paper contains several annexes which provide useful information for
PINBio and the government. Annexure 1 contains the MSR Guidelines developed by
MSRC. This document has been included to give some guidance to PINBio when it
embarks on developing rules and guidelines on ABS and IPR.
Annexure 2 contains a provisional list highlighting the roles and responsibilities of the
various State agencies and how these roles and responsibilities impact on biodiversity.
It is only a provisional document and is not exhaustive.
Annexure 3 is a critical document as it sets out the basic framework for the
establishment of the proposed biodiversity institute. The proposals contained in the
draft Drafting Instructions are presented for further deliberations and adjustment. A
final Drafting Instruction can emanate from this document.
Annexure 4, 5 and 6 are reports of the Consultant setting out the details of the three
Provincial Consultative Meetings. The reports contain very useful information for
PINBio and the government which can be consulted when designing a NBSAP or
national biodiversity legislation.
Annexure 1:
Guidelines for MSR Programs in PNG Territorial
Waters (2003)
Preamble
Papua New Guinea ratified the United Nations Convention on the Law of the Sea
(UNCLOS) in January 1997 and has since been obligated to establish a MSR consent
regime for PNG territorial waters and its EEZ (NEC Decision 124/96). Consequently,
the PNG MSR Committee was formed for this purpose and is accorded its legal
mandate via the PNG UNCLOS Implementation Committee. The MSR Committee is
currently chaired by the Department of Mining, which also acts as the Secretariat via
the Secretary General. The MSR Committee meets bimonthly to discuss applications
for MSR in waters under PNG’s jurisdiction/governance.
The MSR Committee is made up of representatives of the following PNG institutions:
Department of Foreign Affairs; Department of Attorney General; Department of
Mining (the Geological Survey of PNG and the Division of Mines); Office of
Environment and Conservation; National Fisheries Authority; Department of
Transport & Civil Aviation (Maritime Division & PNG National Weather Service);
National Surveillance Authority; PINBio (includes academic representation – biology
& chemistry), UPNG School of Earth Sciences and National Research Institute.
The MSR Committee recognises the strong role to be played by MSR in PNG’s future
development, and seeks to both encourage MSR, and to minimise potential conflicts
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of interest between MSR organisations, industrial organisations and consultants and
PNG’s legitimate national concerns and laws. As the body in PNG responsible for
making recommendations to the PNG Department of Foreign Affairs concerning the
approval or refusal of MSR proposals, the MSR Committee has prepared the
following guidelines for MSR organisations and researchers to assist them in the
preparation of their proposals for work in waters under PNG jurisdiction.
Guidelines and Requirements
1.0 Application to undertake Marine Scientific Research
1.1 All proposals must be received by the Secretary General of the MSR
Committee 6 months before either: (a) the MSR expedition plans to leave its
home port; or (b) any logistic deadlines before sailing and which must be met
by the MSR Organisation for the expedition to set sail as planned. This is to
enable adequate correspondence pertaining to the research before approval is
given and to allow for external problems such as postal delays.
1.2 The researcher/MSR Organisation is expected to be fully aware of current
PNG legislation governing its activities and the activities of its staff in its
expeditions to areas of PNG jurisdiction.
1.3 It is noted that there is an international obligation for MSR Organisations to
send their proposals through the diplomatic channels to the host nation.
In the case of PNG, the researcher’s national Embassy/Consulate/High
Commission in PNG would forward the proposal to the PNG Department of
Foreign Affairs (DFA) who would then pass the proposal to the MSR
Committee for its recommendation. The PNG DFA would then return the
recommendation to the researcher nation’s diplomatic mission in Port
Moresby who would then communicate with the MSR
Organisation/researcher.
To guarantee that the MSR Committee may give timely advice to the PNG
DFA, the researcher/MSR Organisation should send to the MSR Committee as
advice, a copy of their proposal at the same time as the proposal is sent
through the proper diplomatic channels. Whilst the MSR Committee may
give its opinion of the proposal to the researcher/MSR Organisation directly,
the formal approval will be that received through the diplomatic process.
The MSR Committee accepts no responsibility for the late arrival of
applications and will treat late applications as applications for work 6 months
from their date of receipt by the Secretary General of the MSR Committee.
1.4 On receipt of the copy of the proposal, the MSR Committee will advise the
researcher/MSR Organisation of the necessary applications required for
removal of samples and may agree to facilitate the sending of the necessary
application forms for such permissions.
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1.5 The application to undertake MSR shall include a full disclosure of all work to
be carried out on samples collected, the objectives of the work, and any
intentions, needs or potential requirements to patent or otherwise formally or
generally establish exclusivity of usage of any material, discoveries or byproducts
derived therefrom. Copies of MOUs with PNG organisations in
respect of such activities shall be included as part of the application.
1.6 The application to carry out MSR shall be organised as:
1.6.1 Executive Summary (500 words maximum)
1.6.2 Scientific Justification; anticipated results
1.6.3 Methods
1.6.3.1 For sampling (include equipment to be used)
1.6.3.2 For analysis (include generic equipment to be used)
1.6.3.3 For physical data-retrieval, data-storage and data-sharing with PNG
1.6.3.4 Transport and storage of samples and availability of samples to PNG workers
1.6.3.5 Survey programme plus equipment
1.6.4 Participating agencies
1.6.4.1 Collaborating Organisations
1.6.4.2 Scientists and students aboard and all of their affiliations including those with
private enterprise
1.6.4.3 Plan for collaboration with any marine mining/exploration licence holders
occupying tenements being examined by the MSR Organisation.
1.6.5 Timetable for publication of Report and list of recipients of Report
1.6.6 List of prior publications of the research organisation relevant to the planned
programme.
1.6.7 Reference List for 1.6.2 above.
1.6.8 Cruise track, sample and measurement location (chart to be included)
1.6.9 Details of vessel, equipment, crew and technical support staff
1.7 The MSR Committee recognises that research proposals have been reviewed
for their scientific merit according to the peer review system in the country of
origin. The Committee is able to provide access to experts in PNG during
development of the proposal and encourages foreign researchers to contact
their counterparts in PNG to assist development of their proposal.
1.8 The MSR Committee reserves the right to prevent the simultaneous presence
of two or more vessels in the same area and in the event of a conflict as to
precedence of work in any one area maintains the right to assign the dates of
operations for the MSR Organisations in conflict.
1.9 The MSR Committee reserves the right to place restrictions on any proposed
programme as conditions for approval.
2.0 Affiliation with Commercial Operators
PNG is developing a consent regime for offshore mining and in 1997 issued offshore
mineral exploration licences to a company interested in mining in an area of
considerable interest to marine scientific researchers. This internationally groundbreaking
practice has led to concerns about access to data and to the use of data by
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oth industry and researchers. It also means that care has to be taken to ensure that
the holders of exploration licences do not lose or cannot claim in a court of law to be
losing competitive advantage through MSR in their licence areas. It is recognised that
researchers may well hold consultancies and that there may be industrial support for
funding MSR, and although it is understood that world-best ethical practices are
commonly adhered to by such researchers the PNG MSR Subcommittee maintains the
precautionary requirements listed under 2.1 to 2.6 (below).
The MSR Subcommittee does not act as broker in assisting industry gain data from
MSR Organisations and regards research data as confidential to the MSR
Organisation who obtained the data and to the affiliated PNG institute for a period of
no longer than two years in the case of post-doctoral level research. Should industry
require data from the MSR Organisation or affiliated PNG institute it must be
requested directly from the MSR Organisation by the industrial operator and during
the two-year confidentiality period can only be released to industrial operators by the
written permission of the MSR Organization. After two years the data will be
regarded as in the public domain except for the case of PhD theses where the data
may be held confidential for a period of between three and five years subject to
negotiation between the researcher and the affiliated PNG institute.
Data collected from a licence area solely by and at the sole cost to the industrial
operator licensed to collect those data remain the confidential property of that
industrial operator for the time specified in the PNG legislation under which the
licence was given.
2.1 MSR expeditions shall declare all institutional and individual affiliations with
any commercial organisations supporting the expeditions, including the names
of cruise members such as students sponsored by industry or supervised by
researchers with connections to, affiliations with or funding from industry.
2.2 Other than the ship’s normal crew, MSR expeditions shall not include staff
who are members, affiliates, representatives of, or those whom may be
deemed as proxies for, commercial organisations or interests without the
express permission of the PNG MSR Committee.
2.3 MSR Organisations and researchers are informed that should they be directors,
staff, affiliates to, consultants to or otherwise be seen as a proxy for any
commercial interest (eg mining companies, biotechnology companies) their
activities must be examined under the appropriate PNG legislation covering
such industries/commercial operations before they are permitted to take part in
the cruise.
It is emphasised that ignorance of PNG legislation is no legal
plea
2.4 MSR expeditions are informed that should their staff be affiliated to a
commercial organisation as an unpaid adviser or through industry-sponsored
or industry-supervised research or should they be perceived as a proxies for
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commercial interests, this may be seen as a conflict of interest by the MSR
Committee as:
• it could be construed that the commercial operator or the
sponsor/supervisor/proxy is carrying out unlicensed prospecting;
• the research vessel may be operating in areas covered by a commercial
licence granted to another party, in the case of which the shipboard
presence of an adviser to, or perceived a proxy for a potentially
competing commercial organisation, could ultimately imply legal action
by the aggrieved party being the tenement holder;
• the adviser/affiliate to or perceived proxy of the commercial organisation
may find his/her name used in some undesired, inappropriate or illegal
capacity by the commercial organisation for publicity purposes either
during the course of or after termination of the period for which the
researcher was affiliated to the MSR organisation.
2.5 The MSR Committee reserves the right to exclude from research in the PNG
marine jurisdiction any person or MSR Organisation whom it perceives may
have a conflict of interest with the PNG legislation current at the time of
application and/or during the expedition. In any dispute the precautionary
principle will be applied until the matter is resolved to the satisfaction of the
MSR Committee.
2.6 The MSR Committee maintains the right to exclude temporarily or
permanently from research in the PNG marine jurisdiction any person or MSR
Organisation whom the MSR Committee may deem to have failed to have
complied with requests for information from the MSR Committee or its
counterpart research institute(s) in PNG or who may have failed to comply
with the conditions set by the MSR Committee.
3.0 Affiliation and Collaboration with PNG Research Institutes
3.1 Before finalising their expeditions MSR Organisations are urged to develop
memoranda of understanding with their affiliated PNG institution(s). This
requires a timely flow of information, and in the case of work potentially
involving or involving use of genetic material a Memorandum of
Understanding with the PINBio must be in place before the research vessel
leaves it home port.
3.2 The MSR Committee is concerned to protect the discoverer’s rights of prior
access to continue MSR work on their discovery, and recommends
collaboration rather than competition between the MSR Organisation: the
committee will view favourably those MSR organisations demonstrating open
collaboration and exchange of information with other MSR organisations.
The MSR Committee would be pleased were MSR organisations able to assist
in the generation of seminars/conferences on their work whilst visiting PNG or
at some other date.
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3.3 The MSR Organisation shall make available a minimum of two berths on each
cruise for members of the affiliated PNG institutions who will be expected to
work as collaborating scientists under direction of the expedition director.
Where the research vessel is small, an exception may be made by the PNG
MSR Committee and one PNG scientist may be deemed sufficient in such a
case. It is incumbent on the MSR Organisation to advise the affiliated
organisation of the time and points of embarkation and disembarkation at least
6 weeks before sailing. This is a standing condition for work in PNG waters.
3.4 As PNG government institutions are being compelled to adopt cost-recovery
accountancy procedures, MSR expeditions will be expected to pay for the
travel and accommodation of PNG government shipboard scientists and
inspectors to points of embarkation or to the port of their vessel’s arrival for
inspection purposes. Research budgets should be arranged so as to cater for
such costs which may be of the order of USD700 to USD1500 per person for
internal travel in PNG, or greater if the scientists/inspectors should join the
vessel in a foreign port.
4.0 Patent Rights/Exclusivity of use of Material and/or Products
4.1 Should the MSR Organisation or the MSR Committee see the need to patent
any material, discovery or product for any reason, the patent rights and any
gains therefrom shall be shared between the MSR Organisation and the
affiliated PNG organisation(s) on a basis to be determined by negotiation prior
to patents being sought. The MSR Committee will take note of any such
arrangements in approving future MSR. It is recommended that MOUs and
other requirements be in place with the appropriate PNG organisations before
the research vessel leaves the home port.
4.2 Where known at the time of submission of the proposal, the names and
scientists and students aboard and all of their affiliations including those with
private enterprise; a full disclosure is to be made as soon as the final party is
known and no later than 30 days before departure of the vessel from port.
5.0 Removal of Material and Reporting
1.1 Timely prior permission must be sought from the appropriate PNG
organisations for permission to remove any samples out of the PNG
jurisdiction. This may be as long as 6 months in advance for biota/genetic
material. It is recognised that a fully detailed list of such samples may be not
be possible until its collection; however, a list of anticipated samples is
possible.
1.2 A detailed list of all samples, and in the case of mineralised rock samples their
composition, approximate percentage of constituents, amounts of and type of
metals, gem-stones and hydrocarbons must be declared, and must be
forwarded to the affiliated PNG organisation at the first opportunity after their
removal from the seabed or sea. In the case of biological samples a full list of
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iota taken, including species names where known, must be forwarded to the
affiliated PNG organisation at the first opportunity after their removal from
the sea or seabed. Research vessels are expected to have shipboard fax
machines or e-mail available, at the expense of the MSR Organisation, for
such communications.
1.3 All MSR organisations must provide full reports in English or with an English
translation for:
• the PNG National Museum (2 copies)
• the PNG State Library (2 copies)
• the affiliated PNG organisations (2 copies)
• SOPAC
All copies must be sent to the PNG MSR Committee who will arrange their
distribution. It should be noted that for all biological expeditions PINBio is a
permanent affiliate, and for all geological and bathymetric expeditions the
permanent affiliate is the Geological Survey of PNG (the definition of geological is
in its original, broad sense and covers geophysics and geochemistry etc.)
1.4 All reports provided must include colour photographs and video recordings
where such were taken; black and white photocopies of colour photographs
are deemed inadequate. All mapping/survey data, including geophysical data,
must be supplied on CD-ROM to the affiliated PNG organisation in a digital
format compatible with that used by the affiliated organisation. It is the
responsibility of the MSR organisation to contact its PNG affiliates as to the
format of the digital data; any reformatting of the data shall be at the MSR
organisation’s expense.
1.5 Copies of any video-taped material shall be supplied with the reports as part of
the report and in a format compatible with that used in PNG; any reformatting
shall be at the expense of the visiting MSR organisation.
1.6 The Final Reports shall be delivered to the MSR Committee for distribution
and within a period of no longer than 2 years of the return of the expedition to
its home nation/base; failure in reportage may lead to refusal of subsequent
research proposals.
1.7 All cruise scientists will provide to the affiliated PNG organisation two copies
of each of their publications and internal reports arising at any time from the
work of the expedition. English translations shall be provided if the report is
in another language. Failure in reportage may lead to the scientist being
refused permission to accompany future MSR expeditions.
1.8 All samples remain the property of PNG. The MSR Organisation/researcher
may retain all samples as a long-term loan from PNG provided that they are
curated for the future benefit of MSR in PNG waters and that PNG has full
access to the samples as and when required by and at the expense of the
Affiliated PNG Organisation and/or the MSR Committee.
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6.0 Responsibilities of MSR Committee and Affiliated PNG
Institutes
6.1 The prime responsibilities of the MSR Committee have been set out earlier.
The MSR Committee will endeavour to reply to all requests for information
pertaining to application for work, sample removal and contacts within PNG.
The MSR Committee is able to offer an opinion on legal issues through its
links to the Department of Attorney General.
6.2 The staff provided by the affiliated PNG institutes for work during the cruise
shall work under the direction of the MSR organisation’s cruise director and
are expected to contribute to the shipboard programme as part of the MSR
team. It is incumbent on the MSR organisation to ensure that the PNG staff
share in publication arising out of the work. The MSR organisation is
required to report in writing to the MSR Committee any failings in the
affiliated PNG staff which have proved deleterious to the MSR expedition.
Such correspondence will be passed to the affiliated PNG institution and the
PNG staff affiliate shall have the right of reply in writing to the MSR
organisation, to the PNG MSR Committee and to his/her institute.
6.3 The affiliated PNG institution shall create the proper facility for the storage of
samples; the MSR organisation is responsible for the proper transport of
samples to the affiliated institution in PNG.
6.4 Should the affiliated PNG institution not have proper storage facilities for
samples, the MSR organisation may retain all samples as a long-term loan
from PNG provided that PNG has full access to the samples as and when
required by the affiliated PNG organisation and/or the MSR Committee.
6.5 The MSR Committee may, from time to time and according to PNG’s best
interest, amend these guidelines. The MSR Committee is obliged to make
known in a timely manner any such amendments.
7.0 Prior Agreements/Discussions
7.1 The “Interim Protocol”, arranged by some parties interested in deep-sea
mining at the 1998 SOPAC meeting in Suva, has no standing in PNG Law and
the PNG MSR Committee is bound neither by the arrangements proposed at
this meeting nor by prior or subsequent statements or interpersonal agreements
at conferences, or through any prior or subsequent verbal, written or electronic
communication by any person or body other than the PNG MSR Committee,
the Department of Foreign Affairs, the PNG UNCLOS Implementation
Committee and the Department of Prime Minister (National Executive
Council).
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8.0 Failure to comply with these Guidelines
8.1 Failure to comply with these guidelines and the decisions of the MSR
Committee may result in:
• refusal of permission for the planned and/or future research;
• the arrest of the vessel at sea;
• impoundment of samples at the MSR organisation’s expense;
• refusal of permission for individual staff of the non-compliant MSR
organisation to take part in other research programmes in PNG waters or
on land in PNG.
Prepared by the PNG Marine Scientific Research (MSR) Committee
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Annexure 2:
State Agencies that have some Responsibilities
over Biodiversity (Provisional)
Ministry State Agency Functions
PNG Resource Information
Agriculture
Agriculture and Livestock
NARI, CRI,
CCRI, Unitech
System. Establishment &
Monitoring of large agriculture
projects. Subsistence agriculture.
Rural land use planning.
Analysis laboratory
Justice Attorney-General’s Department Enforcement of environmental
Culture and Tourism
Education
Planning
Tourism Promotion Authority
National Cultural Commission
National Museum
UPNG, UoG, Unitech, Vudal
Univeristy, PAU and DWU
Treasury & Corporate Affairs,
National Research Institute (NRI)
statutes
Protection & development of
cultural heritage and arts
Environmental education,
environmental planning,
assessment & monitoring.
Natural resource research and
collections.
Economic & social planning.
Protection of traditional culture.
Socio-economic assessment
Fisheries and Marine Resources National Fisheries Authority Management & conservation of
fisheries and marine resources.
Stock assessment.
Foreign Affairs Foreign Affairs International treaties and
conventions
Forests
Health
National Forest Authority
Forest Research Institute
Unitech
Health
National Aids Council
IMR, UPNG
Forest management & assessment
Reforestation
National Forest Action Plan
Assessment & monitoring of
environmental contamination.
Environmental health
Labour Industrial Relations Worker environment
Lands and Physical Planning
Lands
Acquisition & allocation of land.
Land use planning of State land.
Land use planning.
Mining Mining Management & control of
Petroleum
Police
Petroleum & Energy
PNG Royal Police Constabulary
mineral resources
Management and control of
Petroleum resources.
Management of energy sources.
Enforcement of Summary
Offences Act. Enforcement of
environmental statutes.
Inter-Government Relations Provincial & Local-level
Government Affairs
Enforcement of local-level
government environmental
statutes.
Natural resources benefit sharing
and participation under
OLPGLLG
Transport NRA, NRSC, CAA Management of marine pollution
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Annexure 3:
Draft Drafting Instructions
If the recommendation to establish the PBA is accepted by PINBio and the
government, the following proposals are presented for consideration. The draft
Drafting Instructions sets out an administrative structure, composition, powers and
functions and identifies the number of personnel to be employed by the institution.
Administrative
The creation of the PBA will require a strong lean and transparent
administrative structure. The adoption of a workable administrative structure
must incorporate the workings of the PINBio Board, the Technical Steering
Committee and the leadership structure of the Conservation Division.
The administrative arrangements of the PBA must also accommodate and
strengthen the current PINBio programs and fulfil the objectives of the
Conservation Division. The PBA must be able to perform national agency
functions and at the same time, operate as a corporate entity. The PBA must
also be given greater autonomy to deliberate its decisions and source funding
and other revenues for the organisation.
The following administrative structure is suggested:
1. Council
The Council may consist of persons representing the following State
agencies:
a) Secretary for DEC (ex officio)
b) 9 Programme Leaders;
c) Chairperson or representative of MSR Committee;
d) Health Department;
e) National Fisheries Authority;
f) National Forest Authority
2. Secretariat
The Secretariat may comprise the following officers:
a) Executive Director
Coordination, planning and internal administration
b) Financial Director
Coordinating financial arrangements
c) Corporate Director
Enforcing law
3. Support Staff
a) 2 KBOs (permanent)
Set up internal office procedures, operate database of PBA and
operate web site.
b) 13 permanent officers
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Of this total, 9 will coordinate the 9 PINBio programs and 4
will be liaison officers to coordinate research in the four
regions of the country
c) 3 Researchers
Conduct full-time research as directed by the Executive
Director or Corporate Director.
The suggested total staff ceiling would be 21. It is suggested that staff be
appointed on a full-time basis through a gradual process of employment.
These officers must have university qualifications and posses technical
knowledge of the field.
The three senior officers of PBA should be appointed for a period of three
years with the option for renewal.
Proposed Senior Positions in the PBA
Legal
Position Term of Contract Permanent
Executive Director 3 years Yes
Financial Director 3 years since Yes
Corporate Director 3 years Yes
The proposal to create the PBA will give it legal personality, meaning that it
can sue and be sued. It can also undertake all forms of activities as prescribed
by its legislation.
Powers and Functions
The critical component of any institution is its powers and functions. Clearly
the powers and functions of the PBA must be clearly stipulated. Given that the
programs that the PBA will monitor involve individuals from different
institutions and various organizations, there must be clear demarcation of its
powers and functions so that potential conflicts are avoided.
Some of the powers and functions of the Council may include:
• Development of policy and law on biodiversity;
• Introduce guidelines and policies on ABS
• Formulate rules and guidelines on IPR
• Developing policy on financial arrangements;
• Providing instructions to the Secretariat;
• Delegating its powers and functions;
• Enter into agreements with international, regional, NGO provincial or
local-level governments, or other entities on matters relating to
biodiversity or a component of biological diversity.
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And some of the powers and functions of the Secretariat may include:
• Implementing deliberations of the Council;
• Advising the Council on biodiversity matters; and
• Liaising with international and regional organizations, NGO,
provincial and local level governments, and other entities on matters
relating to biodiversity or a component of biological diversity.
Decentralization
One of the main concerns that was raised at the Provincial Consultative
Meetings was that if the PBA is to be established through legislation, it has to
establish links with the provincial and local-level governments. This may be
through the appointment of liaison officers based either in Port Moresby or at
the regional offices of the four regional secretariats. Or the PBA may delegate
certain functions to these two levels of government.
It is imperative to identify a workable mechanism under the proposed
legislation to enable the active participation of provincial and local-level
governments and local communities in the issues of biodiversity. This is
particularly true for issues relating to ABS and IPR.
Finance
The creation of the PBA which is separate from DEC would most likely attract
budgetary support from the government. The inception of the PBA would also
enable the institution to raise internal revenues. Some of the internal revenue
can be drawn from biodiversity bonds, fees and fines. Funds can also be
sourced from international organizations.
Biodiversity Protection
An important factor that should be incorporated into the legislation is the
creation and management of protected areas. The existing legislative
framework is weak on biodiversity protection. Several provisions of the draft
legislation should focus on protecting biodiversity.
This particular concern may involve minor amendments to some of the
protected areas legislation such as the Conservation Areas Act, the Fauna
(Protection and Control) Act, the National Parks Act, the Crocodile
(Protection) Act, the Environment Act and the International Trade (Flora and
Fauna) Amended Act 2003. The natural resources laws (Mining Act, Oil and
Gas Act, Forestry Act and the Fisheries Management Act) would also have to
be amended to ban all major natural resources development projects in
protected areas.
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PIC and ABS
The issues of PIC, ABS, transfer of technology and IPR are very complex.
They involve people and institutions both at the lateral and vertical levels. At
the vertical level, one is confronted with the different layers of the various
levels of government (in this case the national, provincial and local-level
governments). The lateral involves different players at these hierarchical
levels of government. And given that PNG has a diverse cultural heritage,
dealing with the different clans and tribes can be mind boggling.
It is suggested that for PIC, the current application process be maintained but
improved. The approval by provincial governments must be revisited to ensure
that decisions at the provincial level also involve the input from local-level
governments. The appropriate local communities must also be involved in the
process. It is proposed that with the establishment of the PBA, its officers at
the provincial level should also act as liaison officers between the PBA,
provincial and local-level governments and local communities. Where there
are no officers on the ground, and if the application involves large
investments, relevant national officers at the head office should travel to the
relevant provinces and obtain PIC from the local communities, local-level
governments and provincial governments.
It is also suggested that three different PIC regimes be developed. The first
regime should be for the government, the second for the provincial and locallevel
governments and the third for local communities. When these PIC
regimes are created, time-frames for approvals and consultation processes can
be easily established for each of these regimes.
For instance, at the national level, the investor or research organization can
enter into what can be described as a “Biodiversity Access Statement” (BAS).
This document sets out the aims and objectives of the applicant in conducting
biodiscovery activities in PNG. This document would be similar to an EIA
required under the Environmental Act 2000. The parties to be involved in a
BAS would be the applicant and the PBA.
It is proposed that once a BAS is in place, the PBA can then proceed to obtain
access to the biological resources with the landowners and the local-level and
provincial governments through what can be termed as the “Biodiversity
Access Agreement” (BAA). Because the PBA endorses the BAS, it is
imperative that the PBA initiate the BAA process with the three different
parties. The involvement of the PBA gives credibility to the process and also
ensures that resource owners and local-level governments are not abused
through the process.
The different levels at which PIC can be obtained and from which parties is
shown in the Table below.
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Sources of PIC
Activity
BAS
BAA
BP
PIC From
PBA (for State)
Provincial governments, LLG and resource owners
PBA (for State)
In relation to ABS, it is suggested that two models be developed – one for
terrestrial biological diversity and the other for marine biological diversity. It
is proposed that the investor and the PBA liaise with the resource owners and
the provincial and local-level governments in determining how any potential
benefits to be derived from the biodiscovery can be shared equitably amongst
all the stakeholders. It is suggested that an agreement to be called the
“Biodiversity Benefit Sharing Agreement” (BBSA) be concluded between
these parties.
Given the fact that the results of a biodiscovery can take years, it is proposed
that the proposed legislation should set out the general parameters upon which
a BBSA should be guided. The draft legislation should set out the general
terms and conditions of a BBSA.
It is further proposed that when an applicant has obtained a BAS and a BBSA,
the applicant must than apply for a “Biodiscovery Permit” (BP). This permit
will be issued by the PBA. This permit will empower the bio-prospector to
proceed with the biodiscovery project in the country.
Monetary Benefits
Different parties can derive benefits from biodiscovery projects. These include
the national government through the PBA, the provincial and local-level
governments, local communities, local research and learning institutions and
national scientists.
The benefits that can be derived from an investment in biodiscovery in the
country’s biological diversity can take two forms. First, it can take the form of
through direct financial benefits, and second through non-monetary benefits.
Some of the non-monetary benefits include capacity building projects,
strengthening relationships with research institutions and pharmaceutical
companies, physical infrastructure development and transfer of hard and soft
technology. A MTA would provide the framework for this technology to be
transferred. A MTA is usually executed between the bio-prospector and the
government, possibly through the PBA.
Monetary benefits in the form of royalties can be paid to resource owners and
the different government entities. Royalties can be derived from co-ownership
of IPR and also the sale of pharmaceutical products.
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Rights and Duties of Stakeholders
There are various rights and duties that emerge when dealing with biological
diversity. These rights can be IPR, absolute rights, negotiable rights and
absolute duty. Absolute rights are usually derived from something of value
which one possesses or owns or controls. A negotiable right can be
compromised. And an absolute duty is a legally binding obligation that must
be complied with. Failure to comply with the duty will attract legal suit or a
criminal penalty. The table below shows what each stakeholders’ rights and
duties are and the sources of these rights and duties.
Rights and Duties of Stakeholders
Stakeholders Absolute Rights Negotiable Rights Absolute Duty
Research
Institution
Technology
Financing
&
Company Technology &
Financing
Technology
Financing, IPR
(processing)
Technology
Financing, IPR
(processing)
&
&
PIC from State
PIC from State
State, PINBio
Biodiversity,
Reject/granting
PIC and royalties.
Biodiversity
Ensure biodiscovery
is free from
constraints of land,
marine ownership
issues.
Provincial
Governments
Land or Maritime
boundary
Ensure biodiscovery
is free from
constraints of land,
marine ownership
issues.
Local-level
Governments
Resource
Owners
Land or Maritime
boundary
Biodiversity, land,
maritime boundary
Traditional
knowledge
PBR, FBR
Ensure biodiscovery
is free from
constraints of land,
marine ownership
issues.
Ensure biodiscovery
is free from
constraints of land,
marine ownership
issues.
Some of the rights which need to be defined in the proposed law include:
• Traditional Knowledge Rights
This right accrues to an individual or a community based on their
traditional knowledge about medicinal, cosmetic or any other
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economically valued process of biodiversity. This right is limited to
non-biological processes and is an absolute right to the resource owner.
• Plant Breeder Rights (PBR)
This a right derived from the UPOV Convention and the TRIPs
Agreement. These treaties protect PBR holders over plant variations
that were developed by these people. It is suggested that rights over
plant varieties that are unique or endemic to PNG should be vested in
the State. The PBA can then develop rules and procedures to govern
their export through a MTA process. Such rules should be consistent
with the NAQIA Act, the Quarantine Act and the International Trade
(Fauna and Flora) Amendment Act 2003.
• Farmer Breeder Rights (FBR)
These rights originate from the PGRFA Treaty. Under the treaty the
State can enter into agreements with other stakeholders to regulate
PGRFA. Applying the principles of the treaty, ownership of germ
plasma can be co-owned by a resource owner and the State. However,
only the State can enter into a MTA to transfer the germ plasma.
• Genetic Processing Rights
This is a new IPR that can be developed for PNG. Given the stringent
conditions that are associated with patenting and the high costs of
accessing cheap products, PNG can develop its own rules relating to
genetic process for products developed in PNG.
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Annexure 4: Report of the Eastern Highlands Provincial
Consultative Meeting (9-10 March 2004 – Goroka)
Introduction
The underpinning of the consultative process with the provinces was to ascertain what
the provinces were doing or had done about biodiversity conservation and sustainable
use. Four provinces were selected to represent the four regions of the country for
consultation. Eastern Highlands Province was selected to represent the Highlands
region.
The Eastern Highlands Province was selected for two principal reasons. First, the
province is home to one of the higher learning institutions (the University of Goroka)
and a national research institute, the Institute of Medical Research (IMR) which are
actively involved in research and development. Second, the province has one of the
most unique biological areas in the country (Crater Mountains) which has received
both national and international reputation as an ideal area for biological research and
biodiversity conservation. The Crater Mountains is currently managed by the
customary landowners and a national environmental non-governmental organisation –
the Research and Conservation Foundation.
Given this special situation, the underpinning of the scoping exercise was to establish
whether the province had developed or established ground rules for biological
research and development in the province. The other reason for the visit was to
ascertain the level of collaboration between the provincial government and the UoG,
IMR and RCF to identify examples and practises which would provide some guidance
for the current work being undertaken by PINBio.
Organisation of Meeting
The meeting in Goroka was coordinated by Mr. John Ericho of the Conservation
Forum Inc. Initial contacts with the provincial government was unsuccessful. Mr.
Ericho therefore stepped in and successful organised the meeting which was held on
Wednesday 10 th , March 2004. The Consultant and Mr. Ericho were able to meet with
the Provincial Administrator on Tuesday 9 th , March 2004. The Provincial
Administrator was briefed on the purpose of the Consultant’s visit and the aim of the
Consultative Meeting. The Provincial Administrator was very supportive of the
initiative and agreed that the Consultative Meeting be held in the Provincial
Government Conference Room located within the Yanepa Building.
Consultative Meeting
The meeting was held at 9.00 am and ran for three and half hours finishing at 12.30
pm. The meeting was structured in the following format.
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1. Introduction by Participants
2. Introduction of the Consultant by the Chairperson (Mr. Ericho)
3. Briefing by the Consultant on:
• PINBio; its establishment, purposes, structure and programs.
• The value of biodiversity conservation, research and development of
biological resources
• Access to biological resources
• Benefit Sharing
• Intellectual Property Rights to biological resources
4. Feedback from Participants
5. Response by Consultant
6. Close of Meeting
A number of important issues were raised by the participants. These issues can be
grouped into several key categories. These are: Access to biological resources; benefit
sharing; intellectual property rights; biodiversity conservation and, institutional and
human capacities. A clear message that came through at the Consultative Meeting was
that because Papua New Guinea is the owner of the biological resources, it must set
the agenda for biological research and development and conservation in PNG.
Access
• Research application procedures and approval mechanisms must be
streamlined and simplified. Issues such as what type of research Who is to be
involved in research How will researchers intervene in the communities
Where will researchers go Who should they see on the ground These are
critical issues that need to be addressed before biological research can be
approved.
• Biological resources must be clearly defined. What are they What are its
characteristics What is its value to the resource owners
• Community involvement strategies are critical.
• Rules on identification of resource owners, intervention points and their roles
in the biological research must be clear and concise.
• Prior to access to biological resources of local communities ensure researchers
and scientists are fully versed with the customs and practices of the local
communities.
• Introduce strong legislation to protect the resource owners and the country
against bio-piracy.
• Rules about access must be developed in close collaboration with the local
communities, eg, with the Ward Development Committee and the local-level
government or if the research will be in a Wildlife Management Area, then the
WMA Committee or for Conservation Area Committee.
• Rules on PIC must be clear and simple.
• What mode of communication should be encouraged at the community level
Should it be English or Pidgin or Tokples
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• Imposing conditionalities on researchers must be fair and must be balanced
between the interests of the State and the foreign institution and its
researchers.
Benefit Sharing
• The concept of benefit must be clearly defined. Are there different levels or
categories of benefits What are the long and short-term benefits
• Current rules on benefit sharing, for example, by RCF needs to be improved
and strengthened.
• Fees must be fair and their purposes clarified. What levels of fees are payable
and at what points
• Communities, local-level governments and provincial governments must get a
greater share of the national benefit.
• Monetary benefits of biological research and development should not be
overemphasised. Other forms of benefits must be promoted at the community,
local and provincial levels.
Intellectual Property Rights
• There are currently no formal rules on intellectual property rights over
biological resources. However, there are customary rules regulating traditional
intellectual property rights.
• Strong and clear rules on IPR must be developed to protect both traditional
and modern inventions.
Biological Conservation
• Current conservation practices not strong. There is an urgent need to
strengthen conservation areas such as the Wildlife Management Areas,
National Parks and Conservation Areas.
• Biological conservation must also be intricately linked with the CDM
espoused by the UNFCCC and the Kyoto Protocol.
Institutional and Human Capacities
• The creation of PINBio is good as it will serve as the focal institution for
biological research and development in the country.
• If a new research is to be conducted, it would be good to direct the research to
sites where physical and institutional infrastructure already exists so that the
new research will enhance the capacity of existing institutions and also
provide value-added results to the work already being undertaken.
• The training of PNG nationals and the resourcing of existing national
institutions must be promoted through new biological research and
development initiatives.
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• PINBio or the new institution being promulgated by PINBio must strengthen
the work of existing research and planning divisions of provinces where they
exist and where similar institutions do not exist, PINBio must establish its
coordinating branches in provinces.
• Data and research results must be shared with provinces and where
appropriate local-level governments.
• The proposed legislation must clearly define the roles and functions of
government agencies and research organisations.
• The proposed legislation must also fill the gaps in the existing environmental
laws.
Outcomes
The participants agreed that there was no provincial policy and legal framework on
biological research and development in the province. The Conservation Forum is
currently pushing for a provincial and Local Agenda 21 to guide development in the
province.
It was revealed at the meeting that RCF does have an ad hoc policy on biological
research and also a limited form of benefit sharing scheme involving the imposition
of certain fees on researchers when they enter the Crater Mountains. The fees
schedule is provided in the following table.
Type of Fee Amount (Kina) per person Purpose of Fee
Entry into villages in the Crater
Entry
15 (per village)
Mountains
Wildlife
Management Area (CMWMA)
25 (per night) Use of Guesthouse
Sleep
20 (per night) Use of Transit houses
7 (per night) Where no guesthouse
Ground 3.30 (per site) Visiting sacred sites, caves, etc
13 (per guide per hike) Provide guided tours around
specific village sites
Guide 25 (per guide per village) For trial hikes and between
villages
Carriage
1.00 (per kilo above the 15 Kg
threshold per day)
Cargoes exceeding 15 Kg will
attract the additional fees
*Fees and Rates as at July 2003
Although the kinds of benefit sharing arrangements being propagated by PINBio
may significantly vary from the RCF practice, the Table provides a useful guide
as to what is currently being practised on the ground.
The IMR does seem to apply a community intervention strategy (policy) aimed at
accessing the communities and obtaining their consent in conducting medical
research. The actual criteria for access and obtaining PIC have not been clarified,
although some form of consent is obtained through community intervention
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techniques. One fundamental issue being promoted by the IMR is the classification of
benefits. The IMR’s approach to this issue is that most of its work relates to health
issues and thus, respondents or subjects would not necessarily be compensated
financially, but that the results of the research would be beneficial to the respondents,
the country and the global community.
The meeting generated a lot of interest amongst the participants. The participants
were all amazed with the work of PINBio and gave their full support to PINBio.
All the participants also gave their full support for the current policy and legislative
review and agreed that there was a need for a national legislation on biodiversity.
Attendance
The consultative meeting was attended by 10 participants representing the provincial
government, IMR, and the NGOs. Unfortunately, the UoG was not represented at
the meeting because Mr. Ericho ran out of time in delivering the invitation to the
university. The names of the participants, their organization and their phone and
email addresses are shown in the table below.
Name Organization/Division Phone/Facsimile/Email
1 Dagwin Suarkio IMR 7322800
dagwins@pngims.org.pg
2 Robert Bino RCF 732 3211/732 1123
rbino@rcf.org.pg
3 Peter Garin National Forest Authority 732 3794/732 3806
pgarin@pngfa.gov.pg
4 Danny Benjamin Natural Resources Division 732 1233/732 1215
5 Gopsy Gozapao Natural Resources Division 732 1233/732 1215
6 John Ericho Conservation Forum Ph/fax 732 2132
Jericho@rcf.org.pg
7 Jacob Nagamisovo DAL (Provincial) 732 3077
8 Peter Minimulu DAL (Regional) 732 3356/732 1288
9 Helen Perks GDS/RCF 732 3356/732 3211
hperks@rcf.org.pg
10 Katago Sagata Wildlife Conservation Society
PNG
732 3836
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Annexure 5:
Report of the Morobe Provincial Consultative
Meeting (11-12 March 2004 – Lae)
Introduction
The underpinning of the consultative process with the provinces was to ascertain what
the provinces were doing or had done about biodiversity conservation and sustainable
use. Four provinces were selected to represent the four regions of the country for
consultation. Morobe Province was selected to represent the Momase region.
The Morobe Province was selected for two principal reasons. First, the province is
home to one of the higher learning institutions (Unitech) and, two national research
organizations, the FRI and NARI which are actively involved in biological research
and development. Second, the province has a unique geographical landscape having
islands, coastal, lowlands and highlands. This unique geographical condition poses
huge challenges for the province in relation to the development of its natural and
biological resources.
Given this unique geographical location, the underpinning of the scoping exercise was
to establish whether the province had developed or established ground rules for
biological research and development in the province. The other reason for the visit
was to ascertain the level of collaboration between the provincial government and the
University of Technology, NARI and FRI to identify examples and practises which
would provide some guidance for the current work being undertaken by PINBio.
Organisation of Meeting
The meeting in Lae was coordinated by Mr. Taikone Gwakoro of the Environment
and Mines Division of the Provincial Government. Mr. Gwakoro organised the
Consultative Meeting for Friday 12 March 2004 at the Monitoring and
Implementation Conference Room at the Morobe Provincial Headquarters. The
meeting was set down for 1.30pm to 3.30 pm. The Provincial Administrator had been
informed of the scoping exercise and delegated the task to the Environment and
Mines Division.
Consultative Meeting
The meeting was held at 1.30 pm and ran for two hours finishing at 3.30 pm. The
meeting was structured in the same format as the one used in the Eastern Highlands
Province.
1. Introduction by Participants
2. Introduction of the Consultant by the Chairperson
3. Briefing by the Consultant on:
• PINBio; its establishment, purposes, structure and programs.
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• The value of biodiversity conservation, research and development of
biological resources.
• Access to biological resources.
• Benefit Sharing.
• Intellectual Property Rights to biological resources.
4. Feedback from Participants
5. Response by Consultant
6. Close of Meeting
A number of important issues were raised by the participants. Many of the issues that
were raised in the Goroka meeting were also sounded by the Lae group.
Access
• Research applications should be considered in the provinces with advice from
PINBio and research application fees paid to the provinces.
• There must be strong and flexible rules on access.
Benefit Sharing
• Benefit sharing rules must be simple and strong.
• In distributing the benefits, the lowest denominator must be 10%. Benefits to
resource owners, local-level governments or provinces must not break this
threshold.
• Financial benefits for resource owners should be deposited into a trust account
managed by independent and credible individuals.
• Financial benefits for resource owners should be tied to tangible projects
instead of cash payouts.
Intellectual Property Rights
• Traditional owners of biological knowledge must be acknowledged and
compensated for sharing their knowledge with researchers
Biodiversity conservation
• Provincial government is clearly aware of the need to conserve biodiversity.
Recently the Governor announced that the provincial government was going
to declare as a “Conservation Area” the Cromwall area of the Morobe
Province which is located to the north of Finschaffen town.
• PINBio should promote biological conservation and link these areas to the
CDM or similar arrangements under the UNFCCC and the Kyoto Protocol.
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Institutional and Human Capacities
• Previously the province had a Research and Advisory Unit but unfortunately,
in the early 1990s it was dismantled. Need to re-establish this provincial
institution.
• The re-establishment of the research and advisory unit must be resourced with
appropriately skilled personnel and relevant research tools.
• Public servants must be trained to be critical in dealing with issues of
biological research and development.
• Village “scientists” must be identified and utilized by national research and
development institutions to develop pharmaceutical products and cosmetic
products.
• The composition and structure of PINBio, the Interim Board and the Technical
Steering Committee must be re-evaluated to allow for the inclusion of social
scientists, engineers, accountants and planners, etc in these structures.
Outcomes
The participants agreed that there was no provincial policy and legal framework on
biological research and development in the province. Although the province has a
rolling Five Year Development Plan as well as five year District Development Plans,
these needed to be considered against national government development plans and
objectives.
The meeting generated a lot of interest amongst the participants. The participants
were all amazed with the work of PINBio and gave their full support to PINBio.
All the participants also gave their full support for the current policy and legislative
review and agreed that there was a need for a national legislation on biodiversity.
It was revealed at the meeting that there was little coordination amongst the various
national agencies operating in the province. The participants were concerned that
there was very little information flowing to the officers of the provinces at both the
vertical and horizontal levels, regarding the work of FRI, NARI and the University of
Technology and other large groups such as Village Development Trust and Wau
Ecology Institute.
The participants agreed that the results of research projects are critical to
sustainable development planning in the province. Thus, crucial research data
obtained in the province must be shared with the provincial government and relevant
local-level governments.
Attendance
The meeting was attended by six divisional heads represents the various provincial
and national government agencies. The names of the participants, their organisations
and phone and facsimile numbers are shown in the table below. Two of the
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participants, Dr. Komolong and Mr. Sakulas were briefed on the 11 th of March at the
Papua New Guinea University of Technology.
Name Organisation/Division Phone/Facsimile
1 Taikone Gwakoro Environment and Mining 473 1725/472 4745
2 Enoch Sihil Legal 473 1687/472 4745
3 Herman Anep Planning and Commerce 473 1653/472 4745
4 Geoving Bilong DAL 473 1659/472 4745
5 Murika Bihoro Education 473 1661/472 4745
6 Philip Dowa The National Newspaper 472 2833
7 Dr. Miok Komolong Agriculture (Unitech)
8 Harry Sakulas Environmental Centre (Unitech)
183

Annexure 6: Report of the Manus Provincial Consultative
Meeting (15-16 March 2004 – Lorengau)
Introduction
The underpinning of the consultative process with the provinces was to ascertain what
the provinces were doing or had done about biodiversity conservation and sustainable
use. Four provinces were selected to represent the four regions of the country for
consultation. Manus Province was selected to represent the New Guinea Islands
region.
The Manus Province was selected for two principal reasons. First, because of the
province’s remoteness to the rest of PNG, it was agreed that the trip would provide a
good opportunity to assess how the province was dealing with issues of biological
resources. The second reason is that recently, it was reported that gold deposits had
been discovered on the main Manus Island and that there is a likelihood that it will be
developed. Given its island environment, the trip also provided an opportunity to
ascertain what mechanisms the provincial government had in place or is going to put
in place to deal with this new development and its potential impact on the island’s
biodiversity.
Organisation of Meeting
The meeting in Lorengau was coordinated by the Provincial Administrator, Mr. Wep
Kanawi. When the Provincial Administrator received information on the trip by the
Consultant, he went on Radio Manus informing the people about the impending visit
by the Consultant and the purpose of his visit. When the Consultant arrived in Manus
the Provincial Administrator had left Manus on official business. Mr. Kanawi
however, delegated the task to the Acting Provincial Administrator and the Provincial
Environmental Officer, Mr. Lawerence Tjamei.
On Monday 15 March 2004, the Consultant met with Mr. Tjamei and the Acting
Provincial Administrator and briefed them on the purpose of the trip to Manus. The
Acting Provincial Administrator was very excited about the work of PINBio and
quickly sent out a Circular to all the divisional heads and senior officers of the
province to meet for the Consultative Meeting the next day in the Provincial
Assembly – the Lapan Assembly.
Consultative Meeting
The meeting was held at 9.00 am in the Lapan Assembly and ran for three hours
finishing at 12.00 pm. The meeting was quite unique as it was held in the chamber of
the provincial assembly and was opened with a prayer.
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The meeting was conducted in similar manner to the ones in the Eastern Highlands
and Morobe Provinces.
1. Introduction by Participants
2. Introduction of the Consultant by the Chairperson
3. Briefing by the Consultant on:
• PINBio; its establishment, purposes, structure and programs.
• The value of biodiversity conservation, research and development of
biological resources.
• Access to biological resources.
• Benefit Sharing.
• Intellectual Property Rights to biological resources.
4. Feedback from Participants
5. Response by Consultant
6. Close of Meeting
A number of important issues were raised by the participants. Most of these issues
were already raised in the Goroka and Lae meetings.
Access
• PIC processes lacking in the province. Need to develop and clarify the
processes.
• When developing a framework for PIC, due consideration must be given to
village chiefs, Ward Councillors and Clan leaders.
Benefit Sharing
• Who will benefit and how much will each group or people get These are the
issues that must be clarified by legislation.
• A formal process of registration of resource owners must be developed to
ensure security of tenure before they are allowed to access the benefits.
• Resource owners and local-level governments should get the majority of the
benefits (about 50%) from the commercial use of biological research results.
Biodiversity conservation
• Important to protect and conserve biological resources because they will lead
to economic development.
• The original biological species of the country must be protected under the
proposed legal regime.
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Institutional and Human Capacities
• PNG does not have a scientific community. Local scientists must be
encouraged through training and technology transfer so that they can be able
to handle highly complex technologies.
• PINBio must not become too powerful. To do so would create all kinds of
tensions between PINBio and other established institutions.
• PINBio must subsume the roles and functions of the Conservation Division of
the DEC.
• Biosafety must be considered as part and parcel of the current review process
• Certain rules must be developed to control tourists and temporary visitors who
have access to biological resources. This involves tighter controls and
coordination between line agencies.
• PINBio must introduce standards for different kinds of biological research and
development.
• Papua New Guineans must be actively involved in the research and
development of biological resources.
Outcomes
The participants agreed that there was no provincial policy and legal framework on
biological research and development in the province. The province has developed a
draft Environment and Conservation Policy, but it needs to improve the draft in the
light of what PINBio is doing and get it approved by the Provincial Government. The
Provincial Government seems to rely on a pre-1995 legislation entitled Marine
Resources Protection Act 1990 as its legal tool to control and monitor its marine
environment. Attempts to verify its status under the OLPGLLG was not successful.
The meeting generated a lot of interest amongst the participants. The participants
were all amazed with the work of PINBio and gave their full support to PINBio.
Apart from two participants, all the other participants gave their full support for the
current policy and legislative review and agreed that there was a need for a national
legislation on biodiversity.
Ethical issues must be carefully considered before any approval is given for
biological research and consequent development.
Two critical issues were raised at the meeting by a participant that warrants mention.
The first question related to the nature of the proposed legal framework.
Question 1:
Answer:
Will the proposed legal framework be oppressive for
the country
No
The second issue related to the function of the proposed legal framework.
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Question 2:
Answer:
Will the proposed legal regime protect the people
and environment of PNG
Yes
By answering the two key questions in the manner postulated above, everyone agreed
that the current initiative being undertaken by PINBio is in the national interest and
must be supported all the way.
Attendance
The meeting was attended by 42 participants. These people represented a crosssection
of the community and the provincial government. It was the most enthused
meeting and was truly consultative. The names of the participants, their organisations
and phone and facsimile numbers are shown in the table below.
Name Organization/Division Phone/Facsimile
1 Philip Tapo Policy and Planning 4709 476
2 Tjamei Lawerence Environment 4709 617
3 Porou Papi Governor’s Office 4709 212
4 Pompiran Kuyei Education Ph/fax 4709 497
5 Simon Austrai Lele Bupi Rural LLG
6 Lemen Pelan Forestry and Agriculture 4709 271
7 Simon Pondrilei President - Rapatona LLG 4709 730
8 Kenneth Savou Balopa Rural LLG 4709 358
9 Kisokau Pochapon Pobuma Rural LLG 4709 634
10 Eluh Kendrew CIS - Manus 4709 781
11 Korou Abe Finance 4709 417
12 Kanawi Sindol Lands and Physical Planning 4709 129/4709 178
13 Bill Polon Human Resources 4709 425
14 Charles Sileh Environmental Health
15 Paul Bulei Finance 4709 172
16 Robert Siwer LLG Division 4709 358
17 Adolf Toro Aua Wuvulu LLG
18 John Malai LLG Division 4709 301/4709 112
19 James Moren LLG Division 4709 358
20 Judy Karawa Community Development 4709 264
21 Joana Rasin Rapatona LLG 4709 365
22 Martias Wawah LLG Division 4709 358
23 Adrian Umitel LLG Division 4709 358
24 Pangih Maiah Governor’s Office 4709 212
25 Ruth Yupi Executive Services 4709 476
26 Angela Anis Executive Services 4709 476
27 Zachary Koweng Forestry and Agriculture 4709 271/4709 347
28 Robert Cholai Finance 4709 231
29 Bill Peran Director Secretariat 4709 476
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30 Pahun Yukai Executive Services 4709 132
31 Sam Tapo LLG Division 4709 132/4709 207
32 Boe Avue Health 4709 132/4709 038
33 John Tapas Division of ICE 4709 487/4709 038
34 Pearson Kambiar Bisakawi/Sopar LLG
35 Augustine Mundrau LLG Division 4709 130/4709 147
36 Kule’en Hamou 4709 307
37 Mathew Tuam Councillor – Tetidu LLG
38 Francis Ndrewei Forestry and Agriculture 4709 271/4709 347
39 Poruan Sapulai Assistant Administrator 4709 358
40 John Pahun Human Resources 4709 425
41 Ruthie Waiwai Governor’s Office 4709 212
42 Loys Uangatt Executive 4709 212
188