"Final Statement", 3 October 2023

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CONCLUSION

The notifiers’ fundamental complaint is that acts and omissions in the enterprise’s community engagement has breached the OECD Guidelines. This examination makes no determination that the enterprise has acted inconsistently with the OECD Guidelines. From the information provided, it appears extensive consultation and engagement is underway with communities in Papua New Guinea. This is being conducted by the enterprise and Papua New Guinea Government agencies, and those agencies are currently considering the enterprise’s proposals and whether they should proceed. That process is subject to Papua New Guinea law and court oversight. Many factual matters, which are contested by the parties in this AusNCP complaint, will be determined by the Papua New Guinea processes. Relevant community agreements, consistent with the OECD Guidelines, could eventuate through those processes. It would, therefore, be inappropriate for the AusNCP to make a statement, now, that those agreements cannot occur in the future.

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That no determination is made here, with deference to the ongoing process in Papua New Guinea, may raise the question: why was that not decided at initial assessment? NCP initial assessments are not meant to involve detailed investigation and determinations. Instead, the objective of an initial assessment is to determine whether the issues raised merit further examination, and it can assist in identifying issues for framing meditation or good offices. Domestic regulatory procedures are a relevant consideration which NCPs consider during initial assessments (e.g. applicable law, parallel proceedings, and whether good offices would further the OECD Guidelines). Current or completed domestic procedures, involving the parties in an NCP complaint, may encompass all that could validly be within an OECD Guidelines specific instance/complaint. That can lead to a complaint being refused at initial assessment. However, where the domestic procedures do not clearly ‘cover the field’, this leaves issues appropriate for good offices. That was the case here, as explained in the AusNCP’s initial assessment. When the enterprise refused to participate in good offices here, the matter proceeded to examination.

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