Assessment of the legality of Rimbunan Hijau sawn timber exports Rimbunan Hijau exports sawn timber from Papua New Guinea to a number of countries, most notably Australia and New Zealand. The timber for these exports is primarily sourced from three logging concessions operated by Rimbunan Hijau on the southern coastline of Papua New Guinea. These are Vailala Block 1, Vailala Blocks 2&3, and Wawoi Guavi. All three concessions supply raw logs to the Rimbunan Hijau sawmill at Kamusie. To assess the legality of the sawn timber exported by Rimbunan Hijau it is necessary to look first at the legal framework within which the logging industry operates and then at the available evidence of compliance with the various laws in individual logging operations. It is then possible to apply the evidence to the relevant legal principles in order to make an assessment of legality. Legal framework The forest sector in PNG is primarily governed by the Forestry Act 1991 as amended. This statute provides a framework for the acquisition, allocation and regulation of large-scale logging operations. To be regarded as legal any forest operation must comply with the core provisions of the Act and with a number of other relevant statutes and the common law. The most important legal principles that relate to the forest sector are: Informed consent from the customary owners Almost all forest resources in PNG are subject to customary ownership where the local population control access and user rights. These rights are protected under the Constitution and the Forestry Act fully recognises and respects the rights of customary owners (Section 46). Any outside interference with forest resources requires the consent of local people. It is a basic common law principle that any consent must be voluntarily given by an informed person who understands their rights and the consequences of their actions. A lawful permit The Forestry Act requires that all logging operations must have a permit issued by the Forest Authority that authorises the felling and removal of trees from a forest area (Section 122). To be valid a permit must not have expired or have been cancelled and it must have been issued in accordance with the correct legal procedures. The Forestry Act requires that all forests be managed in such a way as to conserve and renew them as an asset for succeeding generations and that they be harvested on a sustained yield basis (Sections 6 and 47). The concept of sustainability is complex and there are many different views on how the term should be interpreted and applied, but almost everyone would agree that as a very minimum standard, the forest must be managed so that it can continually provide a harvest of commercial timber. Environmental An is a legal requirement for any major resource development in PNG. The Environmental Act and the Forestry Act both specifically require that all logging operations have a current. Logging Code of Practice Under the Forestry Act the PNG Forest Authority has the power to make and enforce regulations that govern how logging operations should be conducted. The key regulation is the Logging Code of Practice. The Code contains 24 key standards governing how logging companies should manage
their operations in the forest so as to minimise damage and protect their workforce. The breach of any one key standard in a specific instance would not reasonably be seen as making the whole logging operation illegal, but a consistent pattern of behaviour where a number of key standards are continually breached or ignored could be sufficient to give rise to a presumption of illegality. Other legal issues There are a whole host of other laws and regulations that apply to any commercial logging operation. These include tax laws, corporation laws, employment laws and more fundamental obligations such as the respect of human rights. Again, the breach of any one legal requirement in a specific instance would not reasonably be seen as making the whole logging operation illegal, but a consistent pattern of behaviour where a number of important laws or regulations are breached or ignored could be sufficient to give rise to a presumption of illegality. Available evidence on the performance of logging companies There are a number of sources of credible evidence on the performance of Rimbunan Hijau in its logging operations. The most comprehensive review is the still on-going Review of Logging Projects that is being carried out by the government of PNG under the auspices of the Department of National Planning and Monitoring. 1 This Review has looked specifically at Vailala Block 1 and Vailala Blocks 2&3 but has so far been unable to visit the Wawoi Guavi concession. The government Review of Disputed Forest Allocations (2003) looked specifically at the legality of six timber permits including three held by Rimbunan Hijau, Wawoi Guavi, Vailala Blocks 2&3 and Passismanua. There are also a number of published scientific reports on the social impacts and performance of Rimbunan Hijau in Wawoi Guavi. These include Melick 2003 2, Erskine 1999 3 and Brunois 1997 4. An SBS Dateline documentary in 2001 looked at the performance of the logging industry in PNG and included specific documented accusations of serious human rights abuses in the Wawoi Guavi concession area. 5 1 This review is being carried out by a team headed by an expatriate forester with over 20 years commercial logging experience and assisted by experienced officers from the PNG Forest Authority and Department of Environment and a senior PNG lawyer. The review involves on-site assessments of logging operations to evaluate performance and the effectiveness of the regulatory system in cooperation with the landowners and logging companies. 2 Melick D. 2003. A preliminary investigation of the logging operations in the Wawoi Guavi area, Western Province, Papua New Guinea. Immediate impacts and long-term ecological changes 3 Erskine Dr. P. 1999. An impact assessment of logging operations in Block 3 of the Wawoi Guavi TRP, Kamusie, Western Province, PNG 4 Brunois F. 1997. The ecological impacts of the Wawoi Guavi Company s logging exploitation on the territory and society of the Kasua people. Avenir des Peuples des Forets Tropicales. 5 SBS, 2001. Wilderness laid waste by corruption. SBS Dateline TV Documentary broadcast May 2001
Assessment Having looked at the legal framework that governs forest operations and the sources of credible evidence on the performance of Rimbunan Hijau in individual forest areas, it is possible to now assess the legality of individual logging operations. Vailala Block 1 (TP2-14) This logging operation should be classified as illegal. There is no evidence that the logging company (Rimbunan Hijau) has any rights to be operating in the forest area as it is not the permit holder, has no contract with the permit holder and has no licence from the PNG Forest Authority. In any event the permit was unlawfully extended in 1997 and is therefore invalid. There is no compliance with important permit and contractual obligations, there is no sustainability and little compliance with the. There is no functioning. Informed consent from landowners is doubtful and there are other legal problems. Informed consent Unlikely. TRP signed in 1988 when no effective mechanisms existed to identify and fully inform all landowners extension No. Extension in 1997 under S78 not allowed for TRP permits No Sawmill or reforest-ation and many financial benefits and infrastructure provided No. No compliance with measures designed to achieve some measure of sustainability and current logging causing excessive damage Doubtful. No approved from current operator and many EP approval conditions not met No. Numerous least 20 different standards. - no water use permits - no approvals for eight river dumps - no health and safety equipment - no performance bond lodged Vailala Block 2&3 (TP2-16) This logging operation should be classified as illegal. The permit was issued before the logging rights had been acquired and its extension was unlawful on two separate grounds. There are serious breaches of the and those in the Logging and Marketing Agreement. There is no current and numerous breaches of the of practice. There is no sustainability and a number of other serious legal irregularities.
Informed consent No. Logging rights were acquired three years after permit was issued. Project is based on an FMA 1 and logging currently suspended due to landowners court action extension No. Permit issued before logging rights acquired. No. Permit extension in 2002 not allowed under S78 and irregular. No. Permit extended after it had expired No. Sawmill not constructed, infrastructure provided, reforestation levy underpaid. No. Original permit allowed the resource to be logged in just 10 years. Logging is causing excessive damage to the residual stand and there is no reforestation No. Expired with the permit in 2002 No. Numerous least 18 different standards. - employment law irregularities - vehicles unregistered and uninsured - no performance bond lodged - export of restricted species - human rights abuses by policemen employed by the logging company 1 The Review of Proposed Permits (2002) revealed major deficiencies in landowner awareness by the PNG Forest Authority in proposed FMA projects Wawoi Guavi (TP) This logging project should be classified as illegal. There is no valid permit or. There are numerous breaches of the of practice and no sustainability. Important infrastructure benefits have not been provided and there are allegations of serious human rights abuses. Informed consent Unlikely. TRPs signed in 1981, 1985 and 1989 when no effective mechanisms existed to identify and fully inform all landowners. extension? Validity of the original permits under court challenge. 2002 extension unlawful under S78 Infrastructure provided or of poor quality No. Project will be soon logged out, damage to the residual stand is severe and regeneration of non commercial species Melick, Erskine, Brunois No. Expired in 2002 Numerous least 15 key standards Melick, Erskine, Brunois, Review 2004 - human rights abuses by policemen employed by the logging company - no health and safety equipment, SBS Dateline 2000
Addendum An assessment of the legality of the logging operations of Rimbunan Hijau would be incomplete without reference to the general comments made by those who have investigated the company in recent years. In 2000 the Ombudsman Commission of PNG investigated the unlawful grant of a new timber concession, Kamula Doso, to Rimbunan Hijau. In his final report the Chief Ombudsman was so concerned by the conduct of RH that he recommended That all forest development projects being undertaken by the Rimbunan Hijau group of companies be carefully audited and monitored to ensure that all legislative and administrative requirements are strictly complied with; and that all future project proposals by that group of companies be critically screened before approval No specific action has been taken to implement this recommendation. The 2003 Review of Disputed Forest Allocations concluded that The involvement of Rimbunan Hijau in a number of irregular and unlawful extensions such as Wawoi Guavi, Vailala Blocks 2&3, Passismanua and any others are deserving of a full inquiry The Review also concluded that Only a Commission of Inquiry could hope to unearth the true picture and unravel the web of deceit No specific action has been taken on these findings.