Comments

What a wonderful post Gordon. You’ve raised so many of the things we think about as evaluators - not least of which is how do we cut through the ‘narrative’ that gets created around a program in a way that can bring meaningful change. You’ve raised a really interesting question about whether there is something unique about law and justice programs that make this more difficult. I’m going to give that a bit more thought, and come back to you with some reflections soon. In the meantime, I thought I’d point in you in the direction of the mid-term review of for the Tonga Police Development Programme. The report is less brisk than the one I did for the Bougainville Community Policing Programme, but it resulted in some tangible changes to the programme (woohoo!). And, full kudos to MFAT for publishing these reports on their website. I think that kind of transparency is important, and doesn’t negate the confidential conversations and information that can be provided to donors/programme partners as part of an evaluation process. Also, I think of evaluations as a process, where how we do them matters as much as (in some cases more than) what we write in the report. I find this thought also helps with the drudgery of report writing 🙂

Some SWP agents find it difficult to send workers to Australia cause most of the big SWP agents don't give chance to small agents. Long list of applications are waiting in vain because the agent can't secure any contract. Some of the farmers in Australia are too greedy they won't engage with new SWP agent from Vanuatu. Very sad indeed.

Thanks Marion, I agree, data cannot tell us the full story. Thanks for sharing your on the ground experiences from the Western Pacific. It doesn't totally surprise me that a Swap struggled in PNG, given the challenging governance context. Similarly, it doesn't surprise me that elites lobbied for the type of aid most likely to benefit them and their families (scholarships). In Solomons, I agree the education Swap was working pretty well, and that even so there must have been scope to recalibrate it -- this would be good adaptive aid in practice. Like you, I'm agnostic on sector. (Whether we focus our aid on education, governance, economic development etc, should be a function of what works and what's needed, not some particular prior.) That said, there is a clear need for education support in many countries we work in, and -- within the education sector -- no evidence whatsoever that scholarships bring the best development bang for their buck. I also agree we shouldn't fragment aid unduly across countries, projects or sectors. This isn't good practice. I have just one -- data related -- quibble though. In the Pacific we're not a small donor: we're the second largest. Which places a particular onus on us to get it right. Thanks again for your comment. As always, great to hear your perspective. Terence

Thanks Yvonne, Some of that may be outside the hands of the aid programme of course, but I definitely agree any move back to primary education needs to be based on the approaches most likely to work in partner countries. Terence

Everything were created new including body of human. God created Adam and Eve, God gave them the power of choice or freedom to choose. God never imposed on Adam and Eve to worship him. Throughout history, people’s power of choice or freedom were tremble upon when there was a Church and State Union. Earthly bodies have died on the hands of clergymen and the state apparatus. Our Constitution is Homegrown, drafted by our Forefathers, many of them were former clergymen. They had the power to include PNG as a Christian country but chose to only include “we adopt the Christian Principles” in the Preamble of the Constitution as opposed to “Christianity as State religion”. They made the decision to enshrined the divinely power of Choice as freedom of expression in the Constitution. This must be protected at all costs. This decision to amend the Constitution to officially make PNG a Christian Country is not divine but evil. It’s the idea of certain Evangelical fundamentalist to impose their distorted unbiblical doctrines on the people using the State apparatus and is clearly wrong, very dangerous and evil. People must not take the position of the creator. State and Church must remain separated. State must not make laws on religion or religion must not imposed its fundamental doctrines on the State. This proposed constitutional amendments to the Constitution should not be allowed. There is nothing wrong with the current provisions of the Constitution which clearly separate the Church from the State.

Very helpful Terence. Agree re effect of the explicit self-interest in NZ development policy. Hopefully in the re-balancing, care is need to ensure appropriate curriculum (watch the creep of NCEA calibration) and the use of native languages.

I was a participant in decisions regarding NZ’s support to education in PNG and Solomon Islands in the period you cite. Enthusiastic supporter as I am of data driven development, data analysis alone can’t address the specific country contexts in which decisions with respect to PNG and Solomon Islands at least, were taken. In PNG my recollection is that funding was reallocated because the proposed sector wide approach never got off the ground and the PNG government wanted to take stock and reassess its own approaches in education. In Solomons, support to primary education was a key intervention for NZ from the end of the Tensions. There were significant achievements after 10 years of support and my view was that we needed to build on these, not just repeat the same sorts of interventions ad infinitum. There were gaps that remained and review of the programme recommended focusing on delivering more support to schools themselves, especially in support and mentoring to teachers, as opposed to continuing a heavy focus on support to the Ministry in Honiara including consultant support. Ultimately NZ has a relatively small aid programme, especially in comparison to the development opportunities that exist and the resources of others. As long as we work collaboratively with partners on the basis of their requests, support delivery of the changes our partners seek and don’t split our limited funds across too numerous priorities, I am not convinced that the particular sectors in which we work are that important.

Thanks Peter, I agree, it's an issue that urgently needs to be rectified. Thank you for your comment. Terence

This re-emphasis on scholarships wipes out the major re-balancing towards primary education in the Pacific achieved as a result of the 'Towards Excellence in Aid Delivery' report and work of NZAID. It represents the atavistic response of right-wing political thinking, where aid is an instrument of foreign policy and development effectiveness comes second to 'national interest. For it to continue under a Labour-led government is a case of neglect, or absence of mind, and needs to be fixed.

I thank the authors for their blog-post on the Porgera mine. The comments that follow are to provide a context to (i) the refusal of the PNG government to grant Barrick NL a term extension to the Porgera Special Mining Lease (SML), (ii) Barrick NL’s 22 July 2020 application to ICSID for a rules-based conciliation (invoking the Porgera Mining Development Contract) and (iii) the Barrick Australia 11 August 2020 application for an ICSID arbitration invoking the Australia – Papua New Guinea BIT (Agreement between the Government of Australia and the Government of the Independent State of Papua New Guinea for the Promotion and Protection of Investments 1991). The Porgera SML holders are Barrick NL (Operator) and Enga PG functioning as an unincorporated two-party joint venture. Zijin owns a 50% equity in Barrick NL and is not a signatory party to the Porgera Mine unincorporated joint venture operating agreement. The Porgera SML rights were gained by Barrick takeover of Placer in 2006 and <a href="https://www.sec.gov/Archives/edgar/data/1023512/000120561307000166/ex4_119.htm" rel="nofollow ugc">acquired</a> by Barrick from DRD by novation in 2007. These transactions created Barrick’s legitimate investor interest in the Porgera SML. Barrick has additionally invested in ore processing and tpd rates, further exploration work and mining development planning. These are permitted activities under the terms of the April 1989 Mining Development Contract and the May 1989 SML. Barrick’s data acquisitions and planning work have been communicated to the Mineral Resources Authority as required by The Mining Act 1992. Barrick’s position is that since it has made these supplementary investments, complied with statutory and regulatory requirements, met its’ lessee and contractual obligations, it has a ‘legitimate expectation’ that it will be granted an SML extension of term by the PNG government. The Enga PG (as co-venturer) opposes Barrick’s request for an extension of the SML licence. The functionality of mining two-party joint ventures is <a href="https://library.lawsociety.sk.ca/inmagicgenie/documentfolder/AC5508.pdf" rel="nofollow ugc">discussed here</a>. This discussion mentions the importance of customs and usages in the mining industry. By implication any government regulatory authority conforms to these customs and usages when it contracts with and recognises and licences mining joint ventures. Industry customs and usages come into play when contract interpretation is at issue. Mining industry customs and usages are of relevance in both domestic law and international law. After PM James Marape refused Barrick NL’s application for an extension to the Porgera SML Barrick NL applied to the PNG National Court for the discovery of the NEC advice given to the PM. On 10 July 2020 Deputy Chief Justice Kandakasi denied Barrick’s application on grounds that the requested documents were not <a href="http://www.paclii.org/pg/cases/PGNC/2020/199.html" target="_blank" rel="noopener noreferrer nofollow ugc">discoverable</a> by court process because of their protected confidential status under both the Constitution and the Mining Act. At para 32 His Honour permits himself an obiter moment of reflection and wonderment. <blockquote>Also, the important point is that, no case has been made out as was my finding in the decision leading up to the grant of leave that the plaintiff had not established a case of any of the statutory process under the <a href="http://www.paclii.org/pg/legis/consol_act/ma199281/" target="_blank" rel="noopener noreferrer nofollow ugc"><em>Mining Act</em></a> being breached. The effect of this is that, I am not too sure of the purpose for which these disclosures are sought especially when there is no clear establishment of a statutory provision, in the <a href="http://www.paclii.org/pg/legis/consol_act/ma199281/" target="_blank" rel="noopener noreferrer nofollow ugc"><em>Mining Act</em></a> being breached and the need to know how that breach occurred. If at all, the argument is clearly that, when the lease expired at its natural life, the State was entitled to make a decision and that decision was made. Counsel for the defendants led by the learned Solicitor General’s arguments are that the State is under no obligation to give reasons and one of his colleagues in this case, joined in to say it is like a lease situation. When a landlord decides to terminate a lease, the landlord is not required to give reasons. Whether that is a correct analogy or not, I am not getting into that space except to say in this case that a decision has been made and that, there is no expressed statutory provision for disclosure of reasons.</blockquote> From the Barrick point of view His Honour’s decision can have come as no surprise. The decision benefits Barrick because it grounds two points of significance in the context of international law and the Aus-PNG BIT. Firstly, the response of the State unequivocally establishes that the denial of an SML extension was an act of State and thus brings the Barrick/PNG imbroglio within the scope of a BIT investor-state dispute. Secondly, the decision arguably brings to an end and exhausts further avenues for domestic legal action by Barrick. I think it likely that the earlier 22 July application by Barrick to ICSID for a conciliation (under contract) will not proceed. Instead the later 11 August application by Barrick (Australia) under the Aus-PNG BIT will proceed as a claim for damages. Thirdly, the decision enables Barrick to argue for and the arbitral tribunal to adopt as applicable law general international law (i.e. to exclude PNG domestic law as applicable law). Barrick has previous experience of ICSID arbitration. In 2010 Barrick concluded and tendered to the Balochistan Provincial Government (the licencing authority) a feasibility study for the Reko Diq mine in Pakistan. The proposal included a scheme for copper concentrate to be conveyed by pipeline to the port of Gwadar for export. The Balochistan PG required that a refining capacity be developed in the Province and for this and other reasons denied Barrick and its co-venturer Antofagasta a mining licence. Barrick registered the dispute with ICSID for arbitration under the Australia – Pakistan BIT. Barrick claimed to have invested more than US $220 million in the project. In July 2019 the arbitrators made an award of US $5.83 billion in favour of Barrick/Antofagasta. The arbitral tribunal had no difficulty in finding their way to the conclusion that the Pakistan/Government of Balochistan had denied Barrick/Antofagasta a right that gave rise to a substantial loss. The full report of the arbitration which includes reference to mining industry customs and usages <a href="https://www.italaw.com/cases/1631" target="_blank" rel="noopener noreferrer nofollow ugc">can be found here</a>. An important point to be taken from this somewhat horrific award is that under international law the effet utile doctrine of treaty interpretation becomes analytically operative. This means that if, when applying the applicable provisions of the Aus-PNG BIT to the relevant facts, a breach of international law is found to have taken place, then - <blockquote>the fundamental principle [is that] a State cannot rely on its domestic law to determine the scope of, and thus to escape its liability under, international law (<a href="https://www.italaw.com/sites/default/files/case-documents/italaw10738.pdf" target="_blank" rel="noopener noreferrer nofollow ugc">Para 1362</a>)</blockquote> Recently Barrick has filed a claim under the ‘New York Convention’ for the enforcement of the Reko Diq arbitral award in foreign courts. In October 2019 Papua New Guinea acceded to the ‘New York Convention’ (the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards). In order to gain a wider appreciation of the Barrick ‘style’ it is useful to survey recent events involving Barrick in Tanzania. The protracted dispute with a Barrick subsidiary (Acacia) involving both tax payments and the Tanzanian government equity share in three mines which led to the banning of gold concentrate exports has recently <a href="https://www.nsenergybusiness.com/news/barrick-gold-acacia-mining-tanzania/" target="_blank" rel="noopener noreferrer nofollow ugc">been resolved</a>. The Acacia subsidiary has been dissolved and replaced by a new Barrick subsidiary. The tax dispute has been settled and new arrangements have been made for Tanzanian government equity participation in the three Barrick controlled mines. The deal to end the dispute and resume slurry concentrate exports included Barrick paying compensation of $300 million to the government. Barrick’s Tanzanian operations are now owned 84% by Barrick and 16% by the Tanzanian government. The deal includes a 50/50 sharing of benefits after the recoupment of capital debts. Barrick has made an immediate payment of $100 million to the government and will make a further five annual payments of $40 million. It has been reported that Barrick has made offers to the PNG government to increase both government and landowner beneficiation from the Porgera mine. To date these offers have not been accepted by the PNG government and matters seem set to go to arbitration. <strong>Barrick v Papua New Guinea Arbitration?</strong> UNCITRAL arbitration rules enable the tribunal, by default, to “apply to the substance of the dispute ... law that it determines to be appropriate” (Article 35 (1)). I expect that the tribunal will concur with a Barrick argument for the application of general international law (i.e. not domestic PNG law). Additionally, Article 35 (3) stipulates that - <blockquote>In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.</blockquote> The Australia – Papua New Guinea BIT under “Protection and security of investments” Article 3 (3) specifies that - <blockquote>Investments ... shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security.</blockquote> Aus-PNG BIT Article 4 (4) specifies that - <blockquote>Each Contracting Party shall ensure subject to its law that the management, maintenance, use, enjoyment, acquisition or disposal of investments, rights related to investments and activities associated with investments in the territory of the other Contracting Party shall not in any way be subjected to or impaired by arbitrary, unreasonable or discriminatory measures.</blockquote> Aus-PNG BIT Article 7 covers expropriation and nationalisation and allows a bona fide expropriation for a public purpose. The Barrick v Pakistan tribunal rejected the Pakistan claim that the denial of a mining licence was a bona fide regulatory measure “despite its ‘disguise’ as an exercise of regulatory power under Rule 48(3) of the 2002 BM Rules” (Para 1329). The tribunal determined that the denial of a mining lease by the GOB amounted to an expropriation <blockquote>The denial amounts to abuse of sovereign power that can also constitute a measure with expropriatory effect (Para 1329).</blockquote> The Tribunal found that Pakistan was in breach of its treaty obligations to provide ‘fair and equitable treatment’. It is likely that under a Barrick v Papua New Guinea arbitration a tribunal will find that Papua New Guinea has breached its obligations under general international law by “impairing” Barrick’s investment and that the PM’s denial of a lease extension is a “measure with expropriatory effect”. If the tribunal reaches this point when arbitrating the Barrick v Papua New Guinea investment treaty-based dispute the issue becomes the quantum of damages. A twenty year mine life? Say, US $3 billion or US $6 billion? If Papua New Guinea wishes to avoid this result then it must develop an innovative argument. Such an argument may be based on the differences between the Barrick (Reko Diq) social licence to operate and the Barrick NL Porgera social licence to operate. Vailala <em>Note:</em> Barrick v Pakistan refers to - Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1. The UNCITRAL <a href="https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/rules-on-transparency-e.pdf" target="_blank" rel="noopener noreferrer nofollow ugc">transparency rules</a> permit, allow and encourage publication of jurisprudential analysis and speculation at all stages of the arbitral process.

Papua New Guinea needs a good leaders to manage the wealth of this nation or else Papua New Guinea will be exploit for the economic growth and development of another foreigners just as the colonial period, enough is enough we cannot continuously exploited for the economically desire of another country. Thank you.

Well done Cornelio. I am learning about Timor and with young people like yourself the country has a chance for the future. Warrnambool is where my brother and sister were born. Good place to live.