” ABG President Chief Momis says that the ultimate goal of the Bougainville Peace Agreement is permanent ending to the Bougainville conflict.
He made these comments when speaking at the National Conference on the Bougainville Referendum this week .
President Momis said that the Bougainville Peace Agreement is built around three pillars, Autonomy, weapons disposal and referendum but the basic goal for each of the three pillars is the ending of the conflict.
He said based on these, the Referendum arrangements must be implemented in ways that ensure that both sides continue to pursue peace as a new weapon.
SEE New Dawn Press Part 1 Below
Read all our Bougainville referendum articles HERE
” This is a vitally important perspective in relation to the referendum given that in the approach to the time when the referendum must be held, there are voices both at the PNG national level, and amongst pro-secessionist Bougainvilleans expressing doubts about aspects of what the BPA provides in relation to the referendum.
Some in Port Moresby are still concerned that the existence of the referendum arrangements undermine PNG sovereignty, while some in Bougainville question the value of a referendum where the National Parliament retains the right to reject the outcome of the referendum.
This paper seeks to provide insights into the referendum arrangements first by providing an historical overview of the development of support amongst Bougainvilleans for separation of Bougainville from Papua New Guinea.”
THE REFERENDUM IN THE BOUGAINVILLE PEACE AGREEMENT: THE ORIGINS AND SHAPING OF THE REFERENDUM ARRANGEMENTS Anthony J. Regan
President John Momis – “both govts (GoPNG & ABG) must be committed to a peaceful, free and fair referendum exercise”
President Momis said that in the past both the Papua New Guinea National Government and the Bougainville combatants pursued their goals using violence.
They each aimed to defeat others through violence and in that way thought they could achieve peace.
But with the peace process a new motto was adopted which applies to all parties to the conflict it is peace by peaceful means.
He stressed that if lasting peace is the key goal of the Referendum, then we must use peaceful means in the way in which we implement the referendum arrangements that means both sides the former Bougainville fighters must agree not to use weapons of violence for PNG even if it refuses to ratify the referendum they must instead fold their arms and focus on talking and negotiating
Part 2 THE REFERENDUM IN THE BOUGAINVILLE PEACE AGREEMENT: THE ORIGINS AND SHAPING OF THE REFERENDUM ARRANGEMENTS
Anthony J. Regan
The Bougainville Peace Agreement (the BPA) is a complex agreement, produced by a succession of compromises made during more than two years of often intense negotiations directed towards permanently ending a deeply divisive violent conflict.
The Agreement sought to transform violent conflict through provision of new constitutionally provided governance arrangements that were acceptable to all the previously divided parties that participated in the negotiations.
It is important to remember that it is not just the autonomy arrangements that provide new governance arrangements applicable to both Bougainville and the Papua New Guinea (PNG) National Government.
The referendum arrangements are also intended to be a part of the new governance arrangements in large part designed to allow for the peaceful management of disputes that once could only be dealt with through violent conflict.
This is a vitally important perspective in relation to the referendum given that in the approach to the time when the referendum must be held, there are voices both at the PNG national level, and amongst pro-secessionist Bougainvilleans expressing doubts about aspects of what the BPA provides in relation to the referendum.
Some in Port Moresby are still concerned that the existence of the referendum arrangements undermine PNG sovereignty, while some in Bougainville question the value of a referendum where the National Parliament retains the right to reject the outcome of the referendum.
This paper seeks to provide insights into the referendum arrangements first by providing an historical overview of the development of support amongst Bougainvilleans for separation of Bougainville from Papua New Guinea.
The paper first points to emergence of a pan-Bougainvillean identity during the 20th century and how it was that secession became a widely discussed possibility for Bougainville from the late 1960s, largely in reaction to the establishment of large-scale mining in Bougainville. It then discusses the impacts of the Bougainville conflict (1988-1997) on both secessionist support and divisions amongst Bouaginvilleans.
This discussion highlights what is still a little known and understood fact of Bougainville history, namely that the origins of the conflict do not lie in the grievances and actions of young Panguna landowners, but rather in grievances and actions of a broad coalition of Bougainville groups.
The existence of such a coalition helps explain the widespread response of Bougainvilleans to the violence of the Police mobile squads in the late 1988-1990 period.
The discussion touches on the efforts made between 1988 and 1995 to prevent escalation of the conflict or to end the conflict before turning to the beginnings of the Bougainville peace process, in the period 1997-1999, and in particular the origins and development of the Bougainvillean demands for inclusion provision on a referendum on independence in the Bougainville Peace Agreement (the BPA) of, and how a significantly modified version of those demands was eventually included in the final version of the BPA, signed almost 17 years ago on 30 August 2001.
This historical discussion provides the background for a survey of the content and intent of not only the BPA provisions on the referendum but also the relevant provisions of the Papua New Guinea (PNG) Constitutional Laws that give effect to the BPA.
DEVELOPMENT OF A DISTINCT AND UNIFYING BOUGAINVILLE IDENTITY
PNG and Bougainville:
Bougainville’s population in 2018 is approximately 300,000, less than 4 per cent of PNG’s total population.
Its 9,438 square kilometres is roughly 2 per cent of PNG’s total land area. With 25 languages and a similar number of sub-languages and dialects (Tryon 2005), and many cultural differences even within the larger language groups (Ogan 2005), Bougainville reflects PNG’s pattern of linguistic and cultural diversity.
While in many ways Bougainville societies are close culturally and linguistically to those in the west of the neighbouring Solomon Islands, many features of Bougainvillean cultures are similar to those found elsewhere in PNG, as well as in other countries of the Melanesian cultural area. The most distinctive feature shared by most (but not all) Bougainvilleans is very dark skin colour, noticeably darker than most (though not all) people from elsewhere in PNG.
Pre-colonial Bougainvilleans were organised mainly around tiny, stateless clan-based societies. Despite major social and economic changes since colonial ‘rule’ began in the late nineteenth century, the most significant social groups in Bougainville today continue to be nuclear and extended families, the localised clan-based landowning lineages to which members of those families belong (typically containing 50–150 members), and flexible groupings of such lineages. These structures continue to be heavily influenced by customary arrangements that remain strong despite many significant changes in Bougainville society associated with colonial and post-colonial change.
A minority of societies have hereditary (‘chiefly’) leadership, the rest largely have performance-based leadership, often with a hereditary element. Most societies are matrilineal, but at the same time tend to be quite patriarchal (Hamnett 1977; Eves et al, 2018).
Matriliny means that land and other valuable property (and often leadership) descends through the matrilineal line, that women tend to be seen as custodians of land, and that they sometimes have quite high status within their societies, though the extent of this varies between culture and language groups
Under customary arrangements, however, women tend to have limited decision-making roles within the family, and also tend to play limited public roles, with maternal uncles and brothers usually speaking on their behalf in public discussions, even on land matters.
It is still far from easy for women to play other public roles in Bougainville, though this situation is gradually changing. In part this is because of leadership roles women played in the origins of the Bougainville peace process (1997-2005) that ended the Bougainville Conflict, and in part because of roles women are now playing in Bougainville NGOs and as elected representatives in both the ABG (from 2005) and Bougainville’s system of community governments established early in 2017 (in which each village assembly area elects both a male and a female representative).
While under nominal German colonial control from 1884 to 1915, Bougainville’s first colonial administrative centre was not established until 1905. Australia took control from 1914 until PNG’s independence in 1975 (with a brief period of Japanese control during WWII). Some parts of mountainous Bougainville had little contact with churches or the colonial regime until after World War II.
The state in PNG (including Bougainville) has always been relatively weak at all levels, with limited impacts on local communities, and has experienced difficulties in imposing policies on those determined to oppose them.
There were no formal pan-Bougainvillea political structures under the highly centralised colonial administrative structure. Indeed, elected local-level governments were only established gradually from the late 1950s onwards, and in some areas were resented and resisted (Connell 1977; Griffin 1977).
The first elected pan-Bougainville political structure was the interim provincial government established just before independence, and given a constitutional basis in 1977 as part of a settlement of Bougainville’s first attempted secession, in late 1975 (Ghai and Regan 2006). A group of young educated Bougainvilleans took the lead in the 1973 debates about establishing the interim provincial government, and were supported by John Momis, then a Bougainvillean member of the House of Assembly (the colonial legislature) who was de facto chair of the PNG Constitutional Planning Committee that proposed a constitutionalised system of devolution to provincial governments to be included in the independence Constitution.
Identities Among Bougainvilleans and Pan-Bougainville Identity:
Prior to colonialism, whilst trade networks undoubtedly linked various Bougainvillean groups (see, for example, Specht 1974, Wickler 1990) most societies probably had little sense of Bougainville as a whole. Group identities were probably multiple, and were related to environmental and other localized factors (Regan 2005:423-424).
A pan-Bougainvillean sense of identity was created only from the early 20th century, initially by plantation colonialism, which brought about the first extensive interactions of Bougainvilleans with people from elsewhere in PNG, and dark skin colour was the primary marker of that identity (Nash and Ogan 1990).
Bougainvilleans were regarded by the German colonisers as particularly fierce, and they were valued as policemen and as providers of security on plantations. Nash and Ogan (1990) argue that in carrying out such roles, many developed a sense of the superiority of black-skinned Bougainvilleans over the lighter (red-skin) people that they were often supervising.
Politicization of this new pan-Bougainville identity developed mainly following WWII. Contributing factors included: continued close links to Solomon Islands (reinforced by the links of the two main Christian churches in Bougainville with ‘parent’ houses in Solomon Islands); grievances against the colonial regime for neglect of economic development in Bougainville (Griffin et al 1979:150); and racism of some planters and colonial officials (Ogan 1965, 1971, 1972).
However the strongest factor involved in Identity politicisation was Bougainvillean reaction to the development in the mountains of central Bougainville from the mid-1960s, under colonial rule, of one of the world’s largest copper and gold mines. The mine was seen by many Bougainvilleans as imposed to benefit the rest of PNG with little regard to detrimental social and environmental impacts on Bougainville itself, with limited land rents and compensation paid only to communities whose land was actually used for mining-related purposes.
The mine operated from April 1972 until closed down by violent conflict in 1989. It has not reopened since. While resented by many, economic activity associated with the mine together with widespread plantation and small-holder cocoa and copra production made Bougainville PNG’s wealthiest province before the conflict. It was, however, wealth based on significant inequality, something which undoubtedly contributed to the origins of the conflict.
BACKGROUND TO SECESSIONIST DEMANDS
Early Evidence of Secessionism:
Both Conyers (1976:53) and Mamak and Beford (1974:8-10) indicate that the possibility of secession had been discussed in some areas of Bougainville for many years before the first recorded Bougainville secession demands that emerged in the late 1960s in the context of both development of the mine and the approach of independence, both of which raised expectations and opportunities for change.
A September 1968 meeting of 25 Bougainvilleans living in Port Moresby ‘called for a referendum in Bougainville on its political future’ (Griffin, Nelson and Firth 1979: 152, and see Mamak and Bedford 1974:8-10). Spokesman for the group, Leo Hannett, issued a statement requesting that the proposed referendum be held by 1970 ‘to decide whether Bougainville should be independent, should unite with the Solomon Islands to constitute a separate unit, or should remain with PNG’ (Premdas 1977: 76).
The September 1968 call for a referendum saw secession become widely discussed amongst emerging educated Bougainvillean leaders. Those leaders sought ways of communicating their perspectives to other local leaders, making deliberate efforts to communicate with local government council leaders through the Bougainville Combined Councils meetings.
While most of the educated leaders probably saw their demands for secession as part of a strategy to gain autonomy for Bougainville within new PNG constitutional arrangements that would possibly come with independence. Nevertheless the constant discussion of the topic led to widespread interest in secession as a solution to what were seen as a range of problems affecting late colonial Bougainville, and especially mining related problems.
A new political organisation established in the Kieta area in 1969, Napidakoe Navitu, was openly secessionist, and in 1970 attempted to stage its own ‘referendum on secessionism’, though it was ‘a fiasco’ (Griffin, Nelson and Firth 1979:153, and see Mamak and Bedford 1974:9-10). In March 1971, Paul Lapun, one of Bougainville’s three representatives in the House of Assembly and Chairman of Napidakoe Navitu ‘unsuccessfully introduced a Bill … calling for a referendum among Bougainvilleans to determine whether the island should be independent’ (Premdas 1977:68).
The First Bougainville Unilateral Declaration of Independence:
In the aftermath of the December 1972 killing in Eastern Highlands of two senior Bougainvillean public servants who had been involved in a car accident in which a small child was killed, secessionist feeling intensified. The educated leadership , however, gradually shifted the focus of debate to autonomy for Bougainville within PNG as their preferred approach to gaining a share of mining revenue, and for dealing with Bougainville’s needs.
In late 1973, PNG reluctantly agreed to an ‘interim’ Bougainville provincial government (Mamak and Bedford 1974:18; Somare 1975:114-122; Conyers 1976:53-64). In 1974 and 1975 tensions developed over the demand by Bougainville’s unelected Interim Provincial Government for a share of mining revenue.
That dispute, and the move by Chief Minister Somare in July 1974 to delete the constitutional arrangements for provincial government from the independence Constitution resulted in the Bougainville leadership making a unilateral declaration of independence (UDI) with effect from 1 September 1975, just days before PNG’s independence day. The secessionists were initially dismissed in Port Moresby as a minority that was strongly opposed in the north of Bougainville. But as Premdas (1977:80) observes:
In late 1975, [PNG Prime Minister] Somare sent a delegation of cabinet ministers and other political personnel to ascertain the extent of secessionist sentiments … Everywhere they went, even in the northern parts of the island, they were met by large crowds, effectively destroying all lingering illusions that Bougainvilleans were undecided or divided on their demands for secession.
Despite the existence of strong secessionist feeling, the Bougainville leadership was quite moderate. There was little violence, the main exceptions being in January 1976 when ‘secessionists destroyed government property and buildings and tore up airstrips in the northern and southern parts of the troubled island’, and in June when the PNG government ‘dispatched a riot police squad (sic) to southern Bougainville to evacuate the staff of Buin High School (which had been the scene of considerable disturbances a month before)’ (Laracy 1991:55).
No international community recognition for Bougainville’s independence was forthcoming, and after a failed effort to gain United Nations support for secession, negotiations between PNG and Bougainville developed and continued for about six months (Momis 2005:312-314). In mid-1976 an agreement was reached for constitutionalised autonomy generalised to the whole of PNG through a system of provincial governments coupled with what was in effect special financial arrangements for Bougainville, then the only PNG province where a large-scale mining project was located.
Its provincial government was to receive a guaranteed share of mining revenue through receipt of 95 per cent of the mineral royalties payable by the mining company to the PNG government. (The other 5 per cent was already payable to the landowners of the mine lease area.)
Support for secession calmed after 1976, but never died. The provincial government system was initially widely accepted as a substitute for independence. There was, however, a gradual loss of faith as many people realised that Bougainville’s provincial government had limited authority over matters of central concern to Bougainvilleans, and in particular, mining, land and internal migration (Tanis 2005; Ghai and Regan 2006:295-296; Regan 2017). By the mid-to-late 1980s there was a growing sense that it had been a mistake to abandon the secessionist cause.
The Conflict and Bougainville’s Second Unilateral Declaration of Independence:
These concerns contributed to a conflict beginning in late 1988 as new Bougainvillean leadership emerged that challenged the mining company and the National Government over not only the distribution of mine revenue but also concerns about social and environmental impacts of mining.
While this new leadership was widely reported at the time, and has been discussed ever since, as involving mainly young mine area landowners led by Francis Ona, in fact there was a coalition of groups involved, the existence of which helps to explain how it was that the initial demands relating to mining were rapidly transformed into a generalised separatist uprising. This coalition emerged in 1987-88. It included:
- Some younger generation landowners from the mine lease areas;
- Young Bougainvillean mine workers, who came from many parts of Bougainville;
- members of the broadly representative Arawa Mungkas Association (see Mamak and Bedord (1974:13-17 for discussion of an earlier manifestation of the Mungkas Association);
- members of radical ‘pressure groups’, mainly from the Bana and Siwai areas of southwest Bougainville;
- members of criminal gangs recruited by leaders of other groups once police violence was being widely use; and
- indigenous political-religious groups such as Meekamui Pontoku Onoring, led by Damien Dameng (Regan 2017).
Most of the leadership of these groups were Catholics, and they got strong support from some Catholic Church leaders, a fact that greatly added to the legitimacy of the coalition.
Although these groups had differing agendas and objectives, all were concerned in various ways about the impact of the mine, and sought a far fairer mining agreement. Some of them, and notably the leadership of the Bana Pressure Group, saw secession as an important goal, but it was not a generalised one until the unifying experience of the mobile squad’s violence. Ona became the main leader of the coalition of groups, both because he was a member of most of the groups involved, and because he was a strong and angry leader (Regan 2017:386-388)
The November 1988 destruction of some mine property was the spark to a wider conflict. It involved, amongst other things, an explosion that brought down power-lines that supplied power to the Panguna mine site. That was an action carried out by members of the Bana Pressure Group, contrary to most reports which attribute the action to young mine area landowners. The destruction of mine property was intended to put pressure on mining company and governments to negotiate new mining arrangements.
However, contrary to expectations of the Bougainville groups involved, their actions were almost immediately treated as a law and order issue, and Police mobile squads were deployed from elsewhere in PNG. It was the indiscriminate police violence unleashed against communities in the areas around the mine that quickly transformed the conflict into a generalised uprising, changing the key demands of the leadership away from mining related grievances to secession.
Secession soon became the central demand of the newly established Bougainville Revolutionary Army (BRA). The BRA originated in members or associates of the Bana Pressure Group, but soon expanded to include members from most parts of Bougainville. It too was led by Ona. The PNG Defence Force was deployed in April 1989, but to no avail, and its personnel too became involved in generalised violent action against the non-combatant population (Liria 1993).
Closure of the mine was pursued as a goal, but Ona and the leaders around him also envisaged the mine being the major source of revenue for an independent Bougainville, provided it operated under a new dispensation, far fairer to impacted communities (Regan 2017). The mine did close in May 1989, and In March 1990 PNG forces withdrew from Bougainville under a ceasefire.
In May 1990 Francis Ona, made Bougainville’s second UDI, though again, international recognition of Bougainville’s independence was not forthcoming. Soon after the UDI was announced, PNG imposed a sea and air blockade of Bougainville that continued until late 1994, and the North Solomons Provincial Government was suspended in mid1990, remaining suspended until re-established as the Bougainville Transitional Government in early 1995.
Internal divisions amongst Bougainvilleans developed rapidly in the wake of the March 1990 departure of PNG forces.
Factors involved included the very loose structures of the BRA and the presence in its ranks of many criminals. A significant contributing factor was the BRA standing orders issued by Ona, which invited action against suspected PNG agents as well as sorcerers, orders that provided the motivation for many targeted attacks based more on localised jealousies and conflicts than on any real need for action.
Another factor in emergence of localised conflict was the strong localised identities of Bougainville, with much of the conflict reflecting long-standing sources of division. In the end, a pan-Bougainville identity and the development of political demands associated with that identity was able to unite Bougainvilleans when there was a national government and an international mining giant present to oppose. In the absence of both of them, localised identities took precedence, and were often a factor in localised conflict.
By September 1990 leaders of some local communities threatened by localised conflict actively supported the return of PNG forces. Former BRA elements loyal to such leaders began actively assisting PNG forces. These developments established patterns of conflict that persisted until 1997. Terrible violence was unleashed through this internal Bougainville conflict, and some at least of this violence was modelled on and legitimised by the violence Bougainvilleans had experienced at the hands of the PNG security forces.
The conflict took on three distinct but overlapping dimensions. First, the BRA pursued independence and fought the returning PNG forces, gradually gaining the upper hand, at least from about 1994. Second, the BRA also fought with Bougainville Resistance Forces (BRF), mainly made up of former BRA element from areas to which the PNG forces had returned, usually with the support of local community leaders.
The BRF leadership tended to oppose independence, but mainly because of fear of what exclusive BRA control of an independent Bougainville might mean rather than because of principled opposition to independence. The third dimension of the conflict involved highly localised conflicts over land, relationships and other family and community level causes, often involving local BRA and BRF elements. All three dimensions of the conflict were violent and divisive and tended often to give rise to fluid and shifting relationships between groups at the local level.
Impacts of the Conflict:
The impacts of the conflict were severe. Varying estimates of the numbers of conflict related deaths have been made, from 3,000 up to 20,000. When it is realised that Bougainville’s population immediately before the conflict was about 150,000, and that 10,000 to 15,000 left Bougainville as a result of the conflict during 1989 and the first half of 1990, then even 3,000 deaths was an appalling outcome.
The deaths include perhaps 1,000 or more from conflict, inclusive of both Bougainvilleans and several hundred PNGDF and RPNGC personnel. In addition, there were many extrajudicial killings by all groups involved in the conflict, as well as unknown numbers caused or contributed to by the PNG blockade of BRA controlled areas.
These deaths, and the many more injuries that occurred, caused grave trauma for Bougainville, and also for the rest of PNG. Another source of grave trauma for Bougainville was the displacement of 60,000 people from their hamlets and villages to displaced persons camps, called care centres. Trauma in Bougainville was also caused by the deep divisions amongst Bougainvillean communities caused by the conflict.
Other impacts included destruction of virtually all public infrastructure and private sector productive assets, and destruction of the capacity of Bougainville’s provincial government (which was suspended in June 1995) and of the national government agencies previously operating in Bougainville. For PNG, the deaths and injuries suffered by many PNGDF and PNGRC personnel was a source of grave trauma, and contributed to significant loss of morale in both organisations.
The extent of the divisions amongst Bougainvilleans was manifested in the establishment of opposing government structures, inclusive of a Bougainville Interim Government (BIG) associated with the BRA, and from early 1995 the Bougainville Transitional Government (BTG), which was quite closely associated with the BRF, which had a nominated member to represent it in the government.
Amongst the BRA personnel and the extensive support base it enjoyed in many Bougainvillean communities, PNG was seen as at fault in the events involved in the origins of the conflict, and in particular in relation to the indiscriminate violence wrought initially by the Police mobile squads, and later by the PNGDF. Many felt deep bitterness towards the PNG state.
As a result, the cause of independence from PNG became a deeply held core belief for many Bougainvilleans, and for many those views remain little changed by the almost 17 years that have elapsed since the BPA was signed. So deep was the conviction of pro-secessionists that they developed their own explanations for why BRF members and other Bougainvilleans opposed secession, which included a widespread belief that the support of BRF members and other pro-PNG leaders was being bought by payments to the individuals concerned.
The Peace Process:
From as early as late 1988, various initiatives occurred directed to either preventing the violence (in the early stages of the conflict) or ending the violence and achieving peace, but although there were hopeful signs associated with some of the initiatives, for a variety of reasons they all failed to prevent the violence or achieve peace. But in the period from late 1995, a number of factors interacted to create the political space within which a successful peace process was able to emerge.
A major factor was the early 1995 resurrection of Bougainville’s provincial government, now called the Bougainville Transitional Government (BTG), which under the leadership of lawyer, Theodore MIriung, became focused on finding solutions to the conflict. In late 1995 these efforts culminated in little known talks held in Cairns, Australia, between the BTG and BRF leaders, on one side, and BIG and BRA leaders on the other, in which for the first time moderate leaders on both sides engaged and explored possible ways ahead.
Unfortunately, a PNGDF ambush of BIG/BRA leaders returning to Bougainville from the December 1995 talks resulted in a hiatus in the talks and a significant intensification of conflict in 1996. It was then the failed efforts by the PNG government to engage mercenaries in an effort to defeat the BRA (the Sandline affair) that resulted in a change of attitude on the part of the BIG/BRA leadership. Not only did the failed effort to engage the Sandline mercenaries give rise to concerns in the BIG/BRA leadership about the risks of a significant escalation in the conflict, but the role of the PNGDF in ousting the Sandline personnel contributed to a significant change in attitude to the PNGDF on the part of many in the BIG/BRA leadership (Regan 1997).
In any event, a peace process developed in mid-1997, initiated by moderate Bougainvillean leaders on both sides of the conflict who had become deeply concerned about the potential long-term impacts of the intensifying divisions amongst Bouaginvilleans. The process involved three main stages.
The first was from mid-1997 to mid-1999, and involved mainly efforts to build trust between previously opposing groups that still were deeply distrustful of their opponents. To that end, the Lincoln Agreement (one of three main agreements in the first 7 months of the peace process), agreed on establishing a single Bougainville Reconciliation Government, intended to bring together the previously opposing Bougainville governments – the BIG and the BTG.
In this first phase, an international intervention was also developed through agreement between the opposing Bougainville groups and the PNG government. It comprised two main components. One was an unarmed regional group of personnel from four countries which monitored first a truce and later a ceasefire (the Truce Monitoring Group and the Peace Monitoring Group).
The second was a small UN observer mission, supplied by the UN Department of Political Affairs, New York. The second phase, from 30 June 1999 to 30 August 2001 involved the negotiations for a political settlement to the conflict. The differences amongst the Bougainville factions, in particular, had been too deep to allow for negotiations before June 1999. The third phase, from August 2001, involved the implementation of the BPA.
The initial steps involved drafting the PNG Constitutional Laws that give effect to the BPA, the drafting of the Bougainville Constitution, and the implementation of the three stage weapons disposal plan contained in the BPA. In many ways the implementation of the BPA has been ongoing ever since August 2001, with the steps currently underway to prepare for the referendum on Bougainville’s independence being just the latest stage in the implementation process.
While the first phase of the peace process was directed at bringing the deeply divided parties closer together, the divisions, especially those between Bougainvilleans, were still intense, so much so that new intra-Bougainville divisions emerged in the early stages of the peace process. One involved Francis Ona and the minority of BRA elements who supported him, who opposed the peace process, claiming that Bougainville was already independent as a result of the May 1990 UDI. While Ona did not have enough armed supporters to disrupt the peace process, his strident support for Bougainville secession put strong pressure on the BRA leadership who were involved in the peace process. It also gave them useful arguments for the negotiations with PNG – they were able to claim that they had limited room to move for fear of losing support to Ona.
A second source of such division was the significant difficulties experienced in establishing the Bougainville Reconciliation Government under the Lincoln Agreement of January 1998. These difficulties saw three of Bougainville’s MPs, together with leaders of Buka’s council of elders and some BRF elements, refusing to work with the mainstream Bougainville leaders supporting the peace process.
In fact, they boycotted the May 1999 elections of the Bougainville People’s Congress (which was designated as the Bougainville Reconciliation Government envisaged by the Lincoln Agreement) and the initial negotiations for the political agreement in June 1999. With the BRF and integrationist support more generally concentrated in particular areas, especially the large island of Buka, and the northern part of Bougainville Island, there were serious risks of long-term geographic divisions emerging from the peace process. Indeed, a tok pisin slogan often used by a key Buka leader at this time was: Sapos Bogenvil I bruk lus lo PNG, Buka bai bruk lus lo Bogenvil (‘If Bougainville secedes from PNG, then Buka will secede from Bougainville’.) The split in this case emerged in December 1998, and it took almost 12 months before the dissidents and the leadership of the Bougainville People’s Congress were able to agree to work together. (For more on these internal Bougainville divisions, see Regan 2011:45-53.)
THE REFERENDUM IN THE BPA
The Combined Bougainville Negotiating Position:
To understand the quite complex referendum arrangements in the BPA, and in particular the reasons why it provides for deferral of the referendum for 10 to 15 years after the ABG was established and why the referendum outcome is not binding on PNG, it is necessary to consider the origins of the BPA in the more than two years of negotiations that occurred in the second phase of the peace process, between June 1999 and August 2001.
The negotiations for the BPA actually involved two separate negotiations. The first was an intra-Bougainville negotiation in May and June 1999, intended to find a compromise between the divided Bougainvilleans. That first stage resulted in the joint leadership in the Bougainville People’s Congress developing a combined Bougainville negotiating position, which they took into the second negotiation which was the more than two years of negotiations between Bougainville and PNG, from 30 June 1999 to 30 August 2001. Although the three Bougainville MPs, some BRF leaders and some Buka leaders were not part of these intra-Bougainville negotiations, they subsequently accepted the combined negotiation position when they reconciled with the Bougainville People’s Congress in November 1999.
The election of the Bougainville People’s Congress in May 1999 saw pro-secession and pro-integration leaders sitting together in the one institution for the first time. Developing a compromise position between them was not easy. To that point the secessionist leaders had been arguing that Bougainville should pursue the earliest possible independence.
By May 1999 the split in the leadership supporting the peace process and the boycott of the Bougainville People’s Congress by the three MPs and other leaders had brought home to the secessionist leaders the fact that there were serious differences amongst the Bougainville leadership on the secession issue. So in the process of intra-Bougainville negotiations that preceded negotiations with PNG, the secessionists reluctantly accepted a referendum on independence as a democratic basis for making such a step, but wanted it held as early as possible (within say 3 to 5 years) and demanded that its outcome be mandatory. Other Bougainvillean groups were open to a referendum being held, but feared domination of armed BRA groups if an early referendum occurred before reconciliations were held and normalcy returned. So they argued for deferral of the proposed referendum for an extended period, to allow for reconciliation, and for disposal of weapons. Some other Bougainvillean groups were initially opposed to anything other than Bougainville continuing to be a part of PNG, but with a high degree of autonomy. It was difficult to agree a common Bougainville position on this as well as other contentious issues.
In an impressive process that has been described elsewhere (Regan 2002; Regan 2011:85-88) the combined leadership in the Bougainville People’s Congress reached such a compromise, which:
… involved those supporting independence dropping their demands for early independence and instead agreeing to deal with that issue through a referendum …. but deferred to allow time for divided Bougainvilleans to reconcile … On the basis that those supporting integration would agree to support the holding of the referendum, the secessionists agreed to support the high autonomy for Bouaginville preferred by the integrationists … (Ghai and Regan 2006:597).
The referendum would be held within 6 to 8 years and the outcome would not only be binding on both PNG and Bougainville, but would apply to the whole of Bougainville irrespective of whether particular areas voted differently from the majority (the latter point being an important step forward in Bougainville unity).
As they considered incorporating these compromises into a ‘common Bougainville negotiating position’ being prepared in June 1999 for the first negotiating session with the PNG government on 30 June 1999, a major concern was how to avoid the risk that a referendum might cause conflict if a substantial minority was left dissatisfied by the outcome. The particular concern was Buka and parts of north Bougainville where opposition to the BRA was strongest. As a result, the common position proposed as follows:
- That a vote of two thirds or more of the Bouaginville electorate would be conclusive;
- That a vote of between 55 per cent and two thirds would be conclusive only if approved by a two thirds absolute majority vote of the Bougainville legislature;
- That in case of either a vote between 55 per cent and two thirds where the Bougainville legislature did not approve, or a majority vote of less than 55 per cent, a further referendum could be held at a time determined by the Bougainville legislature (the precedent here being the 1998 Noumea Accord in relation to New Caledonia).
In addition, the Bougainville side asserted that a vote in such a referendum should be binding on both PNG and Bougainville, and would be binding on all parts of Bougainville (if the majority vote in Bougainville was to be for independence, then a vote against independence in a particular part of Bougainville would not provide a basis for that part to remain integrated into PNG).
From the outset of the negotiations between Bougainville and PNG, the PNG side opposed a referendum on independence, seeing that as an affront to its sovereignty (Regan 2011:59), as likely to establish a dangerous precedent for other parts of PNG, especially those where there had been a history of micro-nationalist movements (see May 1982), and as a threat to Bougainvilleans opposed to independence. In the first few months of negotiations for the BPA, it became apparent to the Bougainville negotiators that quite apart from the general concern that the PNG side had with a referendum, that PNG had particular problems with the possibility that there could be more than one referendum. In the interests of seeking compromise on the referendum issue, the proposals for special majorities and a possible second referendum were dropped.
The negotiations for the BPA occurred in 23 sessions varying in length from a day to a month, held in the more than two years between June 1999 and August 2001. The differences between the PNG and Bougainville parties over the referendum issue were extensive and extremely difficult to resolve. Indeed, in the early stages of negotiations the PNG side sought to avoid discussion of the issue. When the issue was discussed, differences between the sides dominated. Despite the best efforts of the UNOMB director in chairing negotiations and mediating when he could, by late 2000, differences over the referendum issue resulted in stalemate in the negotiations. Tensions were high, and a breakdown in the peace process seemed quite possible.
The Referendum Compromise, December 2000:
It was a December 2000 Australian government intervention that broke the deadlock. This mediation was possible only because of a little known but highly significant change in Australian policy in relation to Bougainville first announced in January 2000 by then Australian High Commissioner to PNG, Nick Warner. The previous policy position had emphasised Australia’s respect for PNG’s territorial integrity, with Bougainville regarded as an integral part of PNG (a view that caused grave concern to pro-secession Bougainvillean leaders, committed as they were to self-determination for Bougainville). The newly announced position was that Australia ‘would accept and support a political solution negotiated by the parties’ (Downer 2001:33-4),
This major change in policy was largely the outcome of the close engagement of Australia in the Bougainville peace process, especially (but not only) through its leadership, from early 1998, of the regional Peace Monitoring Group (Wehner and Denoon 2001; Regan 2011:65-71; Breen 2016). This engagement had helped the Australian Government better understand not only the depth of feeling underlying Bougainville’s demands being advanced in the negotiations and the difficulties involved in bridging the gap between PNG and Bougainville positions, but also the difficulties involved in Australia playing neutral peace monitoring or mediation roles if it was seen as having a predetermined position, supporting one side, on the most divisive issue, namely that of Bougainville independence.
Downer made his compromise proposal on the referendum arrangements in the course of visits first to Bougainville and then to Port Moresby in December 2000. His advice on the issues involved came from High Commissioner Warner and his first secretary responsible for Bougainville matters, Sarah Storey. Downer proposed that the parties should agree to a constitutionally guaranteed referendum, deferred for a longer period than Bougainville had hitherto proposed – 10 to 15 years after an autonomous Bougainville Government was established. Most important, the referendum outcome should not be binding, but rather, would become a matter for consultation between the parties, with the PNG Parliament having ultimate decision-making authority.
The Australian proposal was intended to remove the immediate sources of tension over the referendum issue. There were two main dimensions to what was proposed. The first – deferral of the decision on the most contentious issue for an extended period – aimed to give the parties the opportunity to build trust and reach a better understanding through the operation of the autonomy arrangements (already largely agreed by December 2000). PNG was being offered the opportunity to manage its relationship with Bougainville in such a way as to gradually reduce division and bitterness, and in doing so reduce support for independence. So the assumption was that PNG would grasp the opportunity to make the autonomy arrangements work so well (through financial support, transfer of powers, capacity building etc.) that even many pro-secessionists might be persuaded to vote against secession. The obvious example of such an approach in the region was the way that France was implementing the Matignon Accord (1988) and the Noumea Accord (1998) concerning New Caledonia’s political future by ensuring adequate flow of resources to New Caledonia.
The second key dimension to the compromise was to significantly reduce the salience of the referendum. Instead of being decisive on the issue of independence (as proposed by the Bougainville negotiating position), if the referendum vote was to be in favour of independence, then the parties would consult, with a view to finding agreement on the way forward. Hence although the referendum is not binding, the National Government cannot simply ignore it. The Government is constitutionally obligated to consult with the Bougainville leadership about the results of the referendum.
The compromise proposal was accepted mainly because it offered both parties an escape from possible collapse of the talks and a likely consequential crisis. It did so through arrangements that gave each party a significant part of what they sought. Bougainville achieved a constitutionally guaranteed referendum, and after 18 months of tense negotiations realised what a significant achievement that was. In doing so it conceded that the Referendum alone would not decide the independence issue. Serious concerns about that change were considerably reduced by what was seen as an assurance provided by Downer’s arguments in favour of the compromise.
He pointed to the East Timor precedent, saying that although the outcome of its 1999 referendum was not binding on Indonesia, once an overwhelming majority of East Timorese voted in favour of independence the international community ensured that the vote was honoured. This the Bougainville negotiators saw as an assurance of the same international community support should there be similar outcome when the Bougainville referendum was held.
As for PNG, by this late stage of the negotiations for a political agreement it was becoming clear that there would be no agreement without including a referendum on independence; the depth of pro-secession feeling was clear. So PNG conceded a referendum while getting the right of final decision on the outcome. Downer assured PNG that its sovereignty was protected if the outcome was not binding and ultimate authority rested with the PNG Parliament. In doing so, PNG leaders took the view that Australia would support PNG’s authority if it were to reject a referendum vote in favour of independence.
This brief history of the negotiation of the Referendum arrangements highlights how the BPA, more generally, involves a hard-won and thoroughly evaluated compromise between opposing parties, each with strong views on the issues involved. The compromise was intended to provide a careful balance between the interests and concerns of all parties.
THE REFERENDUM ARRANGEMENTS
I turn now to presentation of an overview of the arrangements for the referendum as set out in the BPA and the Constitutional Laws that give effect to that Agreement. In doing so I seek to not only clarify some of the complexity of the arrangements, but also to address a few major misunderstandings that have arisen in recent public debates about the referendum arrangements.
Where are the Arrangements Located?
The referendum arrangements are set out in several separate but closely related documents, and could extend to three other categories of document envisaged by the Constitutional Laws, but not so far utilised.
The main existing documents are the BPA, Part XIV of the PNG Constitution, the Organic Law on Peace-building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum (the Organic Law) and the Bougainville Constitution. The longest and most detailed provisions are found in the 65 page Schedule to the Organic Law. It contains the detailed arrangements for the conduct of the referendum, which are based on the provisions of the PNG Organic Law on National and Local-level Government Elections. The PNG Constitutional Laws were passed by Parliament early in 2002, while the Bougainville Constitution was adopted by Bougainville’s Constituent Assembly in November 2004.
The detail about the conduct of the referendum was included in the lengthy Schedule to the Organic Law because of the insistence of the Bougainville side of the negotiations for the BPA, which was not willing to trust the PNG side to enact the necessary arrangements 10 to 15 years or more after the BPA was negotiated. At the same time it was recognised that there were risks in providing for the detail in an Organic Law enacted so far in advance of the referendum. Circumstances might change, new arrangements might be needed, and mistakes, gaps or inconsistencies might be identified. As a result, when the Organic Law was being drafted, three separate mechanisms were included to enable either or both government to deal with such problems if and when they arose, and it is these that give rise to the possibility that there could be new documents created which will make additional provision for the referendum.
First, section 62 of the Organic Law provides that where a ‘difficulty arising from an inconsistency, gap or uncertainty’ arises in the operation of the Organic Law provisions on the referendum, then the difficulty can be resolved by either the Courts, or the two governments (ABG and the National Government), or the Agency established to conduct the referendum. It seems likely that section 6 envisages mainly administrative arrangements for filling inconsistencies etc., but it is also possible that the section might be used by the Agency, at least, to provide a basis for rule about the conduct of the referendum.
Second, section 63 of the Organic Law provides that laws can be passed by either government which may ‘confer powers functions, duties or responsibilities on the Agency or make other provision in relation to the conduct of the referendum’, though any such law must be agreed to by the other government.
Third, section 389 of the National Constitution and section 66 of the Organic Law empower the NEC to make Constitutional Regulations prescribing all matters that by Part XIV of the National Constitution or the Organic Law, respectively, ‘are required or permitted to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to’ either Part XIV or the Organic Law.
To date, no action has been taken to use any of these three possible sources of further arrangements. It is likely, however, that at the very least, some Constitutional Regulations will be needed to make provision for forms required by the Schedule to the Organic Law, as well as for various other matters that the Schedule indicates should be dealt with by way of regulation.
The fact that the referendum arrangements, as they exist at present, are contained in a number of different source documents is part of the reason why the arrangements are not very well understood. Another reason is that the BPA is not very well known. It was signed almost 17 years ago, and even the events of the conflict period that gave rise to the BPA are largely forgotten.
Matters for Later Negotiation:
Although the Constitutional Laws intended to give effect to the BPA contain a great deal of detail, it was agreed at the time that the BPA was negotiated that several matters of central importance could not be decided then. Instead, these matters were left to be decided by the two governments through consultation and agreements much closer to the event of the referendum. These matters involve: the choice of the Agency to conduct the referendum; the date of the referendum; the question or questions to be asked in the referendum; and the qualifications of non-resident Bougainvilleans to enrol to vote in the referendum. Each of these matters is discussed separately, below.
The BPA and the Constitutional Laws do not specify how these matters are to be negotiated and agreed. However, the National Constitution provides for machinery for the two governments to use to jointly oversee the implementation of the BPA. This is the Joint Supervisory Body (JSB). In addition, the Constitution provides that where disputes arise between the governments in relation to the referendum, that the two governments may make use of the multiple stage dispute settlement procedure provided for in the Constitution (see sections 343 and 333-336). The first stage of that procedure involves consultation through the JSB.
To date, the only one of the four major subjects left to later consultation and agreement which has been resolved is that of the choice of Agency to conduct the referendum. The decision on that matter was made through the JSB. The other matters have all been the subject of brief consideration by the JSB, without any decision having yet been made.
The Subject of the Referendum:
The BPA (para. 309) and the National Constitution (section 338) state the broad subject matter of the referendum as being the ‘future political status’ of Bougainville. This subject matter is to be addressed by a question or questions that will be put to voters, having been agreed between the two governments. The BPA (para 310) and the National Constitution (section 339) require that the question or questions must include ‘a choice of separate independence for Bougainville’. In formulating the question or questions, the two governments are required to ensure that the terms of the question or questions ‘avoid a disputed or unclear result’ (section 339). The curious wording – ‘separate independence’ – was included in the BPA at the insistence of the National Government’s negotiators, on the basis that Bougainville is a part of PNG which had achieved independence in September 1975, so that what was being demanded by Bougainville was a separate independence from that which PNG had already achieved.
Accordingly, while there have been some reports of opinion that the referendum will not be about independence, the clear fact of the matter is that independence must be an option offered when the vote is held. It seems likely then that the comments in question are in fact merely intended to indicate that independence is not necessarily the only issue that will be put before voters when the referendum is held.
The ABG proposed in a paper presented to the Joint Supervisory Body (JSB) meeting of December 2017 a single question, involving a ‘yes’ or ‘no’ answer to the option of independence. There was no discussion of the question, with consideration of the proposal being deferred to the next JSB meeting, scheduled to be held in mid-June 2018. A question in the terms proposed by the ABG would effectively involve a vote on two options, for a ‘no’ vote would be a vote in favour of continued autonomy.
There has been some discussion of the possibility of more than two options being included in the question or questions asked. For example, there could be an option or options involving Bougainville remaining part of PNG but with a further increased degree of autonomy. It is possible to conduct referendums that offer more than two options, but there are a number of practical difficulties involved, which makes such referendums quite rare. The requirement in section 339 of the National Constitution that the question or questions be formulated to avoid a disputed or unclear result may militate against inclusion of more than two options, in large part because where there are three or more options, it is possible that no option receives more than 50 per cent of the vote.
When Will the Referendum be Held?
The provisions of the BPA and the National Constitution about when the referendum shall be held are the most widely misunderstood of all the referendum arrangements. Because they include references to weapons disposal in Bougainville and the need for an assessment of whether or not the ABG is meeting good governance standards, these provisions have been wrongly and widely misinterpreted as laying down conditions or pre-requisites that Bougainville must meet before the referendum can be held. The clear implication is that should these so-called conditions not be met, that the referendum can be delayed. Those advancing this view include academic commentators (e.g. Wallis 2012:37), the report of the Powi Committee (PNG Parliament 2017:37), and the Prime Minister (e.g. The National 5th March 2018, and PNG Post Courier, 8th March 2018 and 3rd May 2018).
In fact neither the BPA nor the Constitutional Laws provide any basis for arguing that the referendum can be delayed beyond the end of the five year window. Rather they provide that the referendum shall be held on a date agreed to by the two governments, no earlier than ten years and no later than 15 years after the establishment of the ABG. As the ABG was established on 15th June 2005, the referendum must be held within a five year window between June 2015 and June 2020. In reaching agreement on a date within that window, the two governments are required to take account of two things, namely whether the weapons held by the BRA and the BRF have been disposed of in accordance with the BPA (para.338(3)(a)), and whether the ABG ‘has been and is being conducted in accordance with internationally recognised standards of good governance’ (para.338(3)(b)). The same understanding of the relevant provisions has been clearly stated by one of the advisers in the National Government team that negotiated the BPA. Writing in 2007, he said that:
… the timing of the referendum in the 5 year window allowed, 10-15 years after the establishment of the ABG – that is, between 2015 and 2020 – will be determined by reference to weapons disposal and good governance (in the case of the latter, defined with regard to international standards which are relevant in Papua New Guinea). (Wolfers 2007:92).
If negative assessments were to be made of these things, that could influence the governments to decide on a date closer to the end, or at the very end of the five year window, 2015-2020. It cannot result in a delay or deferral of the referendum beyond the end of that window. The fact that there can be, on no account, a delay or deferral beyond mid-2020 is made particularly clear by key wording in both the BPA and the National Constitution. The BPA states that ‘in any case’ the referendum must be held no later than 15 years after the ABG is first elected, while the National Constitution says that ‘notwithstanding any other provision’ the referendum must be held no later than the 15th year after the ABG’s first election. This wording, in both cases, reflects the clear intention of those negotiating the BPA in the aftermath of the agreement by the parties to the compromise proposed by Alexander Downer.
Determining Whether or Not Weapons Disposal Has Occurred in Accordance with the BPA
An obvious question concerns how the two governments are informed about whether weapons disposal has occurred in accordance with the BPA, and whether the ABG has and is meeting the internationally accepted standards of good governance. Concerning weapons disposal, the issue to be determined is whether the weapons have been disposed of according to the disposal plan in the BPA. In that connection, it should be noted that paragraph 324 of the BPA provides that the plan in the BPA is to be ‘fully implemented’ before ABG elections are to be held. Further, the UN certified in May 2005, shortly before the ABG’s first election that the weapons disposal plan had been implemented (UN 2008:455). Hence there is no issue about whether implementation of the weapons disposal plan has been completed.
On the other hand, it is widely recognised in Bougainville that some weapons still remain available. They are weapons that were not disposed of under the plan under the BPA, in large part because the forces associated with Francis Ona’s opposition to the peace process did not take part in the disposal plan that the UN supervised between 2001 and 2005, and because people have continued to refurbish WWII weapons. The ABG and former combatant groups, inclusive of those who supported Francis Ona, have on several occasions since 2016 openly acknowledged the need for disposal of these additional weapons. As a result there seems little doubt that most of the relevant Bougainville groups are willing to discuss the disposal of these additional weapons as part of the consultation required to agree the date of the referendum.
Determining the Good Governance Issue:
In terms of the good governance issue, the National Constitution provides that it will be determined by the process set out in the Constitution for conducting five yearly reviews of the autonomy arrangements under which the ABG was established and is operating. The first such review should have been held five years after the ABG was established but was in fact held four years late – in 2014. Efforts are currently being made to conduct the second such review later in 2018. However, even if that review could not be held, it would simply mean that the two governments could not consult over good governance, and the likely outcome would be that that the date of the referendum would be pushed back to the end of the five year window – June 2020. The date cannot be pushed back any later.
The ABG Power to Decide that the Referendum Shall Not be Held:
There is only one basis provided that would enable the referendum not to be held in the five year window, and that is where the ABG decides, in accordance with a procedure laid down in the Bougainville Constitution, and after consultation with the National Government, ‘that the referendum shall not be held’ (National Constitution section 338(7). The onerous requirements of the relevant provision in the Bougainville Constitution are such that it is unlikely that the ABG would ever vote to stop the referendum being held. There is no other provision that would enable the referendum to be delayed or deferred beyond the end of the five year window within which the BPA and the National Constitution state it must be held.
Are Good Governance and Weapons Disposal ‘Conditions’ that Must be Met?
The only place where detailed argument has been advanced in favour of the proposition that good governance and weapons disposal are conditions that must be met before the referendum can be held is in the 2014 legal opinion by lawyer, Mr. Nemo Yalo who in 2014 provided legal advice to then PNG Chief Secretary, Sir Mansupe Zuorenoc, advice that was then shared with the Bougainville Public Service officers working on referendum issues (Yalo 2014). Mr. Yalo’s advice asked whether weapons disposal and good governance were intended to be:
- Considerations that must be taken into account by the two governments when consulting about and reaching agreement on the Referendum date; or
- Conditions that must be met before the referendum can be held, with failure to meet them resulting in deferral of the referendum beyond mid-2020
Mr. Yalo’s answer was that they were in fact intended to be conditions. His key argument concerns the use of the word ‘conditions’ in two paragraphs of the BPA. The word ‘condition’ was not used in the provisions of the National Constitution that give effect to the relevant BPA provisions on the referendum. However, as the PNG Constitution (Section 278) makes the BPA available ‘… as an aid to interpretation’ when interpreting any provision of Part XIV or any Organic Law authorized by Part XIV, Yalo relies on those provisions to say that the use of the word ‘conditions’ with reference to weapons disposal and good governance in paragraphs 312 and 321 of the BPA allows the term ‘conditions’ to be read into subsection 338(2) of the PNG Constitution.
He also argues that the use of the word ‘conditions’ in the BPA in relation to weapons disposal and good governance indicates intent that they must have been evaluated as having been achieved before the referendum can be held. Yalo (2014:8) summarises: ‘What appears under Section 337(3) [sic] reflects the intentions of the BPA clause 312. They are not mere considerations’.
In relation to the requirement for weapons disposal ‘in accordance with the Agreement’, Yalo examines the provisions of the BPA on the steps in the disposal plan in the BPA, and argues that it is not necessary to examine whether weapons have in fact been disposed of in accordance with that plan. Rather, the complex and detailed nature of the plan indicates that weapons disposal is intended to be a condition to be met before the referendum can be held. On good governance, Yalo mainly discusses various approaches to how the achievement of good governance might best be evaluated.
Otherwise, Yalo’s major argument is that weapons disposal and good governance are matters of such obvious importance that they must be achieved before the referendum can be held (Yalo 2014:14-15). His position might best be summarised as seeing weapons disposal and good governance as ‘conditions precedent’ that must be met before the holding of the referendum.
Almost the entire basis for Yalo’s arguments relates to the use of the word ‘conditions’ in paragraphs 312 and 321 of the BPA as a basis for interpreting subsections 338(2) and (3) of the Constitution. While section 278 makes the BPA available as an aid to interpretation ‘so far as it is relevant …. where any question relating to interpretation or application of any provision’ of Part XIV or the Organic Law ‘arises’, it is usually not necessary to look to such ‘originating’ documentary sources of constitutional provisions if the meaning of the provision is itself clear,
In this case, as already discussed, the inclusion of the words ‘notwithstanding any other provision’ in subsection 338(2) makes it clear that the aim is to provide for both the earliest possible date for the referendum, and the last possible date. The provision states with absolute clarity that even if some other provision of the Constitution or any other law might be interpreted as allowing a delay, the requirement of ‘not later than 15 years’ must be followed.
Several powerful arguments based on a more complete understanding of the relevant BPA paragraphs all militate strongly against the ‘conditions precedent’ analysis advanced by Yalo.
First, while it is true that BPA paragraph 312(b) describes weapons disposal and good governance as conditions, it is far more significant that the paragraph makes them conditions to be taken into account when setting the referendum date. Nowhere in the BPA are they actually described as conditions that must be met before the referendum is held, nor is that clearly implied anywhere. In fact, the opposite is true.
Second, the use of the word ‘guarantee’ in the opening words of paragraph 312 relates first and foremost to the period within which the referendum must be held. It is a guarantee that the referendum will be held no earlier than 10 years after and ‘in any case, no later than 15 years after’ the first ABG is elected. The use of the word ‘guarantee’ is a powerful signal of intent on the period within which the date can be delayed.
Third, the word ‘conditions’ is used in the BPA with reference to the process of weapons disposal and the quality of government etc. known as good governance. The BPA requires that the questions of whether the process has been completed and the quality achieved be considered before the two governments agree a referendum date. That requirement does not of itself denote that the process must be evaluated as complete and the quality evaluated as having been achieved before agreement on the date can be reached.
Fourth, the argument that use of the word ‘conditions’ in the BPA shows the intention of the BPA, thereby shedding light on the intended meaning of section 338 of the Constitution, is misconceived. While section 278 of the National Constitution makes the BPA available as an aid to interpretation of the Constitution, it also specifies that the BPA must not be interpreted in a legalistic manner, but rather by reference to its intention. It is contrary to section 278 to interpret the intention of the Constitution, and the BPA, by heavy reliance on use of a single word – conditions – without reference to the intention of the broader set of provisions about setting the date for the referendum.
What do we know of the intentions in that regard?
Ample evidence is available that the BPA provisions on the referendum represent a set of compromises amongst deeply divided parties directed to ending violent conflict. As discussed already, in the early stages of BPA negotiation, the strongly preferred position of Bougainvilleans supporting secession was that a referendum be held on that issue at the earliest possible date, with the outcome binding on all parties. (In other words, a majority ‘yes’ vote would give rise to constitutional obligations on PNG to implement it by facilitating Bougainville’s independence.) But some Bougainvilleans were either opposed to independence or had concerns about a referendum being held too soon, while PNG opposed a referendum as undermining its sovereignty.
A compromise was reached under which all sides agreed that a referendum would definitely be held, but would be deferred for an extended period. That deferral would allow time for unification of Bougainville, and re-building trust between Bougainville and PNG. But for Bougainvillean supporters of secession to agree to the compromise it was essential that they had the strongest possible assurances that although deferred for an extended period, the referendum could not be deferred indefinitely. For this reason the BPA (paragraph 312) provides for an earliest possible referendum date (10 years after the first ABG election) and a latest possible date (15 years). It does so by saying the referendum shall be held ‘no earlier than 10 years and, in any case, no later than 15 years’ after that first election. The use of those words ‘in any case, no later’ made it clear that nothing could result in further deferral beyond the 15 year point.
It would undoubtedly be a matter of grave concern to those involved in the negotiation who were initially pressing for an early and binding referendum to find that the compromise they made has been interpreted as allowing a potentially open-ended deferral.
Fifth, if Yalo’s argument were to be correct, and failure to meet the conditions precedent for holding the referendum could result in deferral beyond the 15th anniversary of the first ABG election, it would be expected that the BPA and the Constitution would deal with the consequences of such deferral. For example, provision would be expected about such basic matters as the process for making a decision on deferral, how long the deferral should be, and what would happen in the meantime, and when a further evaluation of the conditions would occur.
The absence of such provision provides very strong support indeed for the proposition that the clear wording of subsection 338(2) is directed to ensuring that the date for referendum cannot be delayed beyond the 15th anniversary. In fact, not only is no such provision included, but the BPA (paragraph 312(a)) and the Constitution (subsection 338(7)) provide only one avenue for a decision to prevent the referendum being held in the five year ‘window’. That avenue is a decision of the ABG, made in accordance with procedures set out in the Bougainville, that the referendum not be held (a matter discussed earlier in this paper).
Explanations of Misinterpretation?
If the arrangements as stated in the BPA and the Constitutional Laws are so clear, why then have so many people misinterpreted them. Possible reasons include the complexity of the provisions of the BPA and the Constitutional Laws, and the fact that virtually no person who was involved in the negotiation of the BPA and the Constitutional Laws is now involved in their implementation. After all, there have been four National Parliament elections since the BPA was signed (mid-2002, 2007, 2012 and 2017), and there has been very high turnover of MPs in those elections, and a subsequent high turnover in senior public servants as well.
Target Date Versus an Actual Date:
At the JSB meeting in Port Moresby in May 2016, the two governments agreed on what they termed a ‘target date’ for the referendum of 15th June 2019 – one year before the end of the five year window within which the referendum must be held. The target date was set for the purposes of planning work in relation to preparation for the referendum, for at the same JSB the governments agreed an extensive plan of activities needed for the planning and preparation for and conduct of the referendum. Planning these activities was not possible without also agreeing an indicative or target date. However the target date is definitely not (or not yet) the actual date. The main reason is that there are some steps that the constitutional laws require to be taken before the actual date can be determined. Those steps involve determining the criteria for enrolment to vote of non-resident Bougainvilleans, the determining of issues concerning the good governance standards of the ABG, and consultation between the two governments on the question of the date. Because no work these matters are yet to be resolved, it is not yet possible to begin discussing the actual date.
In proposing a target date in June 2019, the ABG and PNG Government officials consciously set a date a year before the end of the five year window, the aim being to provide some flexibility for planning purposes. For example, if significant aspects of the agreed activities could not be completed in the time assumed in the planning documents, then by the time the actual date came to be determined, adjustments could be made to allow extra time to complete time-critical tasks.
One problem arising from the setting of the target date is that the distinction between the target date and the actual date is not generally understood. Rather, it has become widely understood in Bougainville that the actual date is now June 2019. In fact, it seems unlikely that the steps necessary for the conduct of the referendum can all be taken by mid-2019, and as a result it seems highly likely that the actual date will be later than that.
Referendum on the Same Date as the ABG Election?
Discussion of alternatives to the target date tend to assume that the Referendum could be held as late as at the very end of the five year window within which it must be held – that is, in June 2020. However, under the ABG Constitution, the fourth general election for the ABG must be held at about the same time. The suggestion has sometimes been made that the Referendum might be conducted together with that election, the point being made that there could be significant cost and administration advantages in holding them together.
It is not uncommon for referendums and national elections to be conducted together, with examples including the USA, Uruguay, Armenia, Taiwan, Slovakia and Cook Islands (ACE Electoral Knowledge Network 2006). A recent example involves Zambia, in August 2016, when a referendum on adoption of a new national Constitution was conducted together with a national election.
The advantages and disadvantages of holding referendums and elections together were summarised in a 2006 advice on the ACE Electoral Knowledge Network (Ibid), which separates ‘practical’ from ‘political’ matters. Advantages of a practical nature of holding elections and referendums together relate mainly to costs savings involved in being able to distribute both sets of ballot papers at the same time, use of the same registers of voters, use of the same polling places and personnel, and so on. Political advantages relate mainly to the possibility of increased voter turnout being generated by voter interest possibly being amplified by the combination of the two processes. Practical disadvantages include the logistical and economic burden on the country, amongst other things because processes such as counting, tabulation and reporting will be more complex, take longer and be more costly. Voter education and information campaigns will also be more complicated and costly. Political problems include risks of protest votes against government spilling over and impacting voting in the referendum. Further, campaign messages can be more difficult to convey, in part because there can often be cross-party campaigning (e.g. parties opposing one another in the election may find themselves on the same side in the referendum, or vice versa).
There could be a number of specific administrative problems involved in holding the Bougainville Referendum and the ABG election together. For example, there would be two different administrative authorities involved – the BRC for the Referendum and OBEC for the election. There would be different rolls of voters, and probably different voting systems (limited preferential voting for the ABG election and – probably – ‘first-past-the-post’ for the referendum). There would be a need to differentiate the ballot papers, particularly to assist illiterate voters. In this context, it also needs to be remembered that each voter in an ABG general election receives four ballot papers (one each for the President, the regional women’s and ex-combatant’s seats and a single member constituency) and so requiring them to receive an additional and rather different referendum ballot paper could be a significant source of confusion, especially for illiterate or semi-literate voters. There would be serious risks of administrative overload because of the different requirements.
A significant political consideration in relation to the Bougainville referendum is that there will be a need for some certainty in ABG leadership in the immediate aftermath of the referendum, as it will be in this period that the National Government and the ABG will need to consult about the results of the referendum. It normally takes some time after the return of the writ ends the ABG general election before the newly elected President is able to put together his or her Cabinet. This consideration alone suggests that it would be important that the Referendum is held a few months before or after the ABG election. The period for the holding of an ABG general election is usually around three months, taking account of the time needed for campaigning, for voting and for scrutiny. The setting of the dates for the holding of ABG general elections is done under section 107 of the Bougainville Constitution, which requires that they be held within three months before the fifth anniversary of the day fixed for the return of the writs for the previous general elections, or otherwise if the Bougainville legislature decides to call an earlier election by a three-quarters absolute majority vote. The date for the return of the writ in the last ABG election was 15 June 2015, and so it can be anticipated that the writs for the 2020 general election will be dated so as to be returned on or about 15 June 2020. In practice, then, it is quite unlikely that a general election will be held earlier than in the last three months of the five year term of the ABG. So if the Referendum cannot be held on the current target date, it probably cannot be delayed much longer than six to seven months – to the end of 2019 or early in 2020. Alternatively, it would be possible for the ABG to amend its Constitution to allow a short delay of the Bougainvillle elections until a little later than mid-2020, thereby allowing clear space for holding the referendum in the middle of 2020.
What About Fiscal Self-reliance?
Statements are sometimes made that ‘fiscal self-reliance’ for Bougainville and its government is also a condition for the referendum to be held (or perhaps for independence for Bougainville to be considered). In fact there is no such requirement in the BPA or the Constitutional Laws.
There are provisions concerning ‘fiscal self-reliance’ in the BPA and the Constitutional laws. They do not relate, however, to the referendum arrangements. Rather they concern aspects of the financial arrangements for autonomy, and in particular the point where economic activity in Bougainville has expanded to a point where revenues collected in Bougainville from company tax, customs duties and GST are sustainably greater than the cost to the National Government of paying the main National Government grant payable to the ABG (the annual Recurrent Unconditional Grant – see Organic Law, sections 39 and 40). At that point, additional revenues from those three sources must be shared between the two governments on a basis that must be negotiated, and the ABG gains the right to adjust the rate of personal income tax in Bougainville by as much as five per cent.
Beyond that technical meaning of fiscal self-reliance, there is a broader meaning to the phrase, which relates to whether Bougainville has the financial resources to be self-reliant, whether for the purposes of autonomy or for independence.
Neither meaning of fiscal self-reliance is a legal pre-condition to either the Referendum or independence. Nevertheless, the broader meaning of that expression can be expected to be an issue of some practical significance when considering options to be included in the question or questions to be put in the referendum, and when voters make choices between possible responses to any such question. It will need to be an considerated in the course of consultations about agreeing the Referendum date (under subsection 338(2)), and would of course be of great importance in any post-referendum consultations about possible independence.
There is evidence that many Bougainvilleans have quite limited understanding of the extent of fiscal resources that would be needed for independence, and the limited options that Bougainville has available in order to access the levels of resources required (e.g. Development Transformations 2013:15; UNDP 2014 18, 20-30). One study notes the efforts of the ABG leadership in ‘drawing attention to the economic viability of an independent Bougainville’, but points out that ‘the question is not on the forefront of most people’s minds’ (UNDP 2014:18). This suggests a need for awareness campaigns to help voters understand the practical financial requirements for independence.
Who Will be Entitled to Vote in the Referendum?
The introductory paragraphs to the BPA state that the ‘agreement provides … for a referendum among Bougainvilleans’ (see para.2). It was agreed, however, during the negotiations of the BPA that all persons in Bougainville qualified to vote in elections for the National Parliament will be entitled to enrol to vote in the referendum. This position is stated in BPA para.315 and in the Schedule to the Organic Law (Sch. Section 1.23). This means that non-Bougainvilleans who have resided in Bougainville for at least 6 months will be entitled to vote in the referendum. While that was something specifically agreed to during the negotiations for the BPA, many Bougainvilleans have been shocked to find that non-Bougainvilleans will have a right to enrol and to vote.
On the other hand, when it comes to persons who are not resident in Bougainville, only non-resident ‘Bougainvilleans’ who meet detailed criteria for determining links to Bougainville that are to be agreed between the two governments will be entitled to enrol (BPA para.315 and Organic Law section 55). The agreement between the governments on the detailed criteria must be met before the date for the referendum is agreed (see Organic Law, section 55). To date no agreement has been reached on these criteria, but the issues involved are the subject of a paper prepared for the JSB to be held in mid-June 2018.
Conduct of the Referendum:
The BPA states that the National Electoral Commission and the authority established to conduct Bougainvillle elections ‘will be jointly responsible for conducting the referendum’ (para.318). The Organic Law provides for an agreement to be reached between the two governments on how that joint responsibility should be exercised, listing four distinct options: either of the electoral bodies on their own, or the two electoral bodies jointly, or a newly established independent agency. In the JSB meeting of May 2016, the governments agreed that an independent agency should be established to conduct the referendum, and in August 2017 the Governor-General signed the Charter made under section 58 of the Organic Law for establishing this agency. Called the Bougainville Referendum Commission (BRC), this new agency will comprise seven members, three each appointed by both governments and an independent chair appointed by the JSB. The three members appointed by each government must include that government’s electoral commissioner, and each is required to appoint at least one female.
So far the JSB has not made the appointment of the chair, but the Prime Minister and the President have jointly announced their decision to invite former Irish Prime Minister, Bertie Ahern, to be the Chair, and Mr. Ahern has indicated his willingness to accept the role (Dineen 2018). Presumably his formal appointment will be made by the JSB meeting planned for mid-June 2018.
In the interim, before the necessary appointments of the seven members of the BRC are made, the Charter provides for a BRC Transitional Committee to undertake the work of the Commission. This Transitional Committee comprises the Chief Secretaries of the National Government and the ABG, and the respective electoral commissioners of the two governments. The Transitional Committee has so far met four times (5 December, 23 February, 15 March, 10 April, and 3 May), and has made a great deal of progress in advancing the planning of the referendum, in large part through the work of four committees established at the first meeting.
The costs of conducting the referendum have been discussed by the BRC Transitional Committee, and are estimated at K127 million, K90 million of which is classified as core referendum costs, and the balance being costs of such things as a weapons disposal program and meeting Electoral Commission’s outstanding financial claims. Under the Organic Law (Sch. Section 1.3), the two governments are required to ensure ‘that all arrangements are made, staff, facilities and funding provided and all steps taken to enable and facilitate …. The proper and convenient performance of the functions of the Agency [the BRC] and of each Returning Officer’.
Is the Referendum Outcome Binding on the National Government?
As was agreed between the parties negotiating the BPA, following the intervention of Alexander Downer, the outcome of the referendum will not be binding on the National Government. The BPA states that ‘the outcome will be subject to ratification (final decision-making authority)of the National Parliament’ (para.311(a)), and that the two governments ‘will consult over the results of the referendum’ (para.311(b)). The provisions of the National Constitution giving effect to para.311 of the BPA are worded differently. They state (section 342) that the governments ‘shall consult over the results’, and that the results shall be taken to the National Parliament ‘subject to the consultation’. In other words, if it were to be agreed to by the two governments in the course of the consultation that there is no need for the results to go to the Parliament for the time being, and for example that the governments agree to continue consultation on an annual basis, that would be permissible. While it seems clear that there is no requirement that the results go to the Parliament, it seems clear that if there is to be any decision on the results, it is only the Parliament that can make the decision, for sub-section 342(2) states that if the results go to the Parliament, the Speaker shall furnish the executive of the ABG a copy of the minutes of the relevant proceedings, ‘and of any decision made in the National Parliament regarding the referendum’. It seems likely that any court called upon to interpret section 342 would be guided by the provisions of the BPA about ‘final decision-making authority’ being vested in the National Parliament. (AS discussed already, under National Constitution sub-sections278(3)and (4), the BPA can be used as an aid to interpretation of the relevant provisions of the Constitutional Laws, and the BPA must be ‘interpreted liberally, by reference to its intentions’.)
The fact that the outcome of the referendum is not binding on the National Government is still a surprise to some Bouaginvilleans. Upon realising this fact, some tend to express the view that if the outcome is not binding then the referendum has little value. However, the leaders that negotiated the compromise on the referendum late in 2000 were clearly of the view that there was value in what was agreed. In this connection, it must be emphasised that what is provided is not merely the referendum, but also a constitutional requirement that the two governments consult about the results.
Are There Prescribed Voter Turnout or Results Quorums?
There is no requirement for a minimum voter turnout for the referendum result to be valid, nor for a particular majority of voters. The Bougainville side in the negotiations for the BPA did argue for a defined results quorum together with the possibility of more than one referendum, but abandoned that proposal early in the negotiations for the BPA.
While there is no requirement for either a turnout or a results quorum, clearly the extent of the turnout will be a significant factor in determining the credibility of the outcome. In this connection it should be noted that turnout in ABG general elections, which has been higher than that in general elections for the National Parliament, has never been higher than 63.6 per cent (the figure in the 2010 ABG general election.
Peaceful Transition Following the Referendum:
At the JSB meeting in May 2016 the two governments agreed on a work program involving 11 separate work-streams for preparations for the referendum, one of which involved preparations for a peaceful transition following the referendum. This work-stream was closely related to those involving reconciliations and weapons disposal. The main point of the work-stream was to ensure that whatever happened after the referendum, the two governments would continue to deal with the situation in a peaceful way. In the agenda of issues for the next JSB, planned for June 2018, there is a paper intended to advance efforts in relation to a peaceful transition. Amongst other things, the paper proposes establishing of a task-force, headed by the two governments’ chief secretaries that will work on the issues of a peaceful transition, and the organising of a summit on the issues involved, to be held before the end of 2018.
A conflict that originally concerned mainly the distribution of mining revenue amongst impacted Bougainvilleans and to the Bougainville provincial government, and brought together a broad-based coalition of Bougainville groups, was transformed from late 1988 to early 1990 by PNG security force violence into a broad-based secessionist conflict. Fairly generalised but not intense secessionism before the conflict was transformed for the BRA and its support base into an intense cause. However, from mid-1990, intra-Bougainville conflict emerged, which reduced the breadth of secessionist support as opposition to the BRA developed. But even as some support for the PNG forces emerged, the ongoing conflict between the BRA and the PNG forces undoubtedly deepened the support for secession amongst the BRA and its support base. By the time the peace process began in mid-1997 not only was there a significant proportion of Bougainvilleans supporting independence, but they had little sense of the extent of opposition to independence amongst the BTG and the BRF and their support base.
For the National Government, by mid-1997, the combination of the experience of not only the serious problems for the security forces in the intensification of violence in 1996 but also of the Sandline affair (which showed that the use of mercenaries to defeat the BRA would not succeed) finally made it clear that a military victory over the BRA was most unlikely. The development of the combined Bougainville negotiation position which proposed dealing with the independence issue through a referendum put the National Government in a difficult position. It desperately wanted peace, and was under international community pressure to achieve that goal. But it took 18 months of tough negotiations to get to the point where the National Government negotiators realised that without a referendum on independence there would be no peace agreement, and that there was a formulation of the referendum issue that the National Government might just be able to live with.
The combination of a deferred referendum together with special autonomy arrangements for Bougainville gave the National Government the opportunity of normalising relationships with Bougainville and reducing the intensity of support for secession. There has undoubtedly been some progress of the kind that the National Government might have wished for. But more attention is needed to the implementation of the autonomy arrangements if the spirit of the BPA is to be realised. There are serious questions about whether autonomy is meeting the high expectations of those that negotiated the BPA.
In terms of the referendum provisions in the BPA, there are the beginnings of concern amongst Bougainvilleans in relation to statements to the effect that the referendum will not be about independence, and that weapons disposal and good governance are pre-conditions for the holding of the referendum. Given the continuing strong support for secession amongst Bougainvilleans, there are dangers that what might be perceived as statements contrary to the BPA might result in loss of faith in the BPA as the new governance basis for managing relations of Bougainville with the rest of PNG.
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