The Tongasat ‘corruption’ myth, and the failure of prudent oversight of Tonga Offshore Mining Limited

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Tongasat and Her Royal Highness Princess Pilolevu Tuita have a central legacy in the success and virility of the democracy movement in Tonga.

Tongasat is associated with “corruption” and “nepotism” in the upper echelons of society and government as critics, especially long-time MP ‘Akilisi Pohiva, have leveled these charges against the private company.

The common narrative pushed around by politicos is, ‘King Tupou IV gave Tonga’s orbital slots, which are national assets, to his daughter Princess Pilolevu to privately use for her own business interests.’

That narrative is then used as an ‘indicator’ that the monarchy may have outlived its usefulness in government because, as the accusation goes, the Royal family is now racking up their personal wealth using the country’s resources.

However, the above assumptions are not factual.

The arguments by politicos that the resources used by Tongasat are “national assets” is contrary to international law. In fact, if the Tongan government pursued those arguments as policies, Tonga would violate international law.

Unfortunately, it seems too technical to discuss the details of the orbits Tongasat uses, or their merits in doing so. But facts are the only gateways to the truth. It’s critical to share the basic concepts, and they are easily understandable.

The FACTS

There types of orbits. An orbit is the ring-shaped pathway an object, say a satellite, uses as it travels around the Earth.

Some of the types of orbits

Some of the types of orbits

Tongasat uses “geostationary” orbits. Satellites in this orbit are primarily used for communications, some weather monitoring, and some military and intelligence applications. The usefulness (or value) of an orbit depends on the geographical region it hovers over. They are most valuable if they connect two points of considerable traffic, or if they oversee areas of importance to military or intelligence needs.

All geostationary orbits, where these satellites are, are about 35,000 kilometers above the earth.

A country’s sovereign airspace spans up to ONLY 100 kilometers above sea level. It is the space above that country’s borders. This 100th kilometer is called the Karman Line. Beyond that, it is considered ‘outer space’, and into deep space.

Outer space (especially satellite orbits), along with international waters, are what is called the Global Commons, because they belong to all humanity, but not a single country. Not even the US, France, or in this case Tonga.

Management of satellite slots is done by the International Telecommunications Union (ITU), the UN Agency with jurisdiction on these matters. No single country has a right to orbital slots, and countries can only lease one from the ITU.

As of now, according to online records, Tongasat is known to occupy about 5 orbital slots. As geo-stationary orbits they are all along the equator: One is in the heart of the Indian Ocean (70˚ East) ; 2 north of West Papua (134˚ East), and 2 just north of Papua New Guinea (138˚ East).

In case you were wondering what this means… This means that the orbital slots used by Tongasat, have NEVER been satellite positions that are in Tonga’s sovereign airspace, or above Tonga.

Tongasat funded and technically sponsored the Tongan government to be able to lease the orbital slots from the ITU. The Tongan government then rents it out to Tongasat, and Tongasat does its business by sub-renting the slots (or channels of communication) to companies operating in that area.

All of Tonga’s (and Tongasat’s) space operation dreams were possible only by one factor: a chance visit to Tonga by a US expert in satellite regulations and law, Dr. Matt Nilson in the 1990s (Nilson held advisory roles to the US Congress in this field). Dr. Nilson was the backbone of the operation. No one in Tonga had the money nor the technical expertise, to deal in international legal issues regarding outer space regulations and satellite science. Nilson was the one.

Tongasat: the ideal political weapon

It is becoming widely known that Tongasat ALWAYS makes a come back during elections.

It has surely become a serious political weapon by leading politicians to swipe against the King, government, and the leadership in allegations of corruption. In doing so, these politicians absorb for themselves some sort of ‘anti-corruption mana’.

Why is Tongasat so important politically? Because it involves a central and high figure in Tongan society, HRH Princess Pilolevu Tuita. If Tongasat was owned by someone else, yet still did the same business, it is likely it wouldn’t be that critical politically.

The issue of economic and social justice is argued under the assumption that Tongasat is illegally taking government and national property and making money for itself.

This issue of corruption is sensitive to the Tongan public, especially in the prevailing non-performing economy, unemployment and failing domestic earnings. Those economic issues are more related to regional politics than the above alleged corruption.

Having a blind-spot against the regional dynamics leaves the country more vulnerable to economic slide.

Representatives, especially Tongatapu 1 Constituency MP ‘Akilisi Pohiva, have lost a number of lawsuits against Tongasat. The reason is mostly lack of evidence.

Further, the Representative uses the lawsuits to force Tongasat to prove its innocence, and to open its books. (Prudent justice demands presumption of innoncence, and the onus of proof rests with the ‘accuser’).

When they fail, representatives and politicos also use that failure to say the courts are ‘biased’ and not independent.

If using defamation for political gains is not corruption (political corruption), then what is?

Current controversy and a lawsuit

It is understood that Tongasat leases its slots and bands to Chinese companies, most likely government enterprises of the Chinese government.

The Chinese government recently made grants to the Tongan government under the common ‘socio-economic development of the people of Tonga’ regimes between the two governments. Some of this money was paid to Tongasat.*

However, because this is the fund pool the government used to pay Tongasat, for what is assumed due to the company and would be paid anyway, Pohiva lodged criminal suits in the courts declaring public funds have been illegally siphoned for Tongasat and the Princess, Pilolevu Tuita. The first batch of two payments was made under the Sevele Administration, and the last payment was made recently under the current Tu’ivakano Administration.**

In the indictment, Pohiva reportedly accuses the Princess and the government of Tonga of “larceny”. (Larceny, by the way, is the misappropriation of private property (not public property) by a trusted agent, for another private person’s benefits.

The suit was declined by the Magistrates’ Courts for lack of evidence.

Pohiva appealed to the Supreme Court, and again the Courts considered that there is no case to answer, and cited lack of evidence.

Further, the Supreme Courts curiously commented the appeal was “not altogether easy to understand. It seems likely that they were not drafted by a qualified lawyer.”

It is assumed that Pohiva may have intended to file the suit under an embezzlement charge, the misappropriation of public property for private benefits.

Having failed, Pohiva is now being joined by Ms. Mele ‘Amanaki, leading political candidate and President of the Public Servants Association (PSA) in filing civil suits against Tongasat and the Tu’ivakano Administration for the payments.

The PSA is an interest organization of public servants. It joins the elections as the “Labour Party”. ‘Amanaki has publicly called for monies paid to Tongasat be returned to the government and used for a pay rise for the public service.

If that isn’t a political promise raising ethical questions of vote “buying”, the what is?

An emerging more serious threat: not from the sky, but from the seas

The Tongasat issue is a red herring against a more potent threat to government and the people of Tonga. This time its not the skies, but the seas.

Tonga Offshore Mining Limited (TOML), is a wholly-owned subsidiary of multinational Nautilus Minerals, an Australian company registered on the Toronto stock exchange, but with strong Australian ties.

TOML’s interests, as are Nautilus Minerals’, is seabed mining.

TOML looked to explore mining in the Clarion-Clipperton Zone (the Zone), a swath of international waters between the waters of Hawaii and California.

Like Outer Space, the world’s international waters (and the seabed in those international waters) is considered Global Commons. Exploration and exploitation of the seabed in international waters is governed by the UN’s International Seabed Authority (ISA). And, like Tongasat, the grant of permission for use of international seabeds is done directly to governments.

So TOML, sponsored by the government of Tonga, put in a request to the ISA to have access to the CCZ. (It is also rumored that TOML has hired Tongasat expertise to help in dealing with international law and regulations regarding the Commons.)

In January 2012 TOML, sponsored by the Government of Tonga, was awarded rights for exploration in the seabeds of the Zone.

However, unlike Tongasat, seabed mining is a much more risky business. Not only to personnel and nearby communities, but there is also a wider potential danger caused by accident or environmental disaster. The impact of seabed mining on the marine life and ecology is not well understood. The technology to mine in great depths underwater, has not been proven. Questions are being raised about viability.

If TOML messes up in the Zone, then the Tongan government WILL be liable for hundreds of millions even billions to recover and mend damages.

TOML parent’s company Nautilus, has also acquired much of Tonga’s explore-able seabed. Accidents by negligence or the failure of prudent foresight, and Nautilus will have poisoned Tonga’s waters, and/or international waters, and Tonga’s international reputation. As a company, TOML and Nautilus can just shift assets and go bankrupt thereby ducking liability. Tonga, as a country, can’t. If the worst happens, Tongans in the future will decry the current generation’s decision-making capability.

If Tonga is suddenly saddled with huge liabilities and a damages reputation, it would give regional powers Australia and New Zealand pretext for greater involvement and interference. Tonga will then lose most of its independence, something that Tongans in the past have given blood, sweat, and tears to protect and maintain against and beyond all reasons.

The current political obsession with Tongasat is blinding Tonga to the real threats to its people, environment, livelihoods and nationhood for years to come.

Put simply, leaders are intentionally misleading the public by misinforming them, for shortsighted political gains only, while leaving everyone exposed to danger for years to come.

* ** These paragraphs have been edited for accuracy and clarity.

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1 Comment on The Tongasat ‘corruption’ myth, and the failure of prudent oversight of Tonga Offshore Mining Limited

  1. Loto Lelei // July 26, 2015 at 5:18 pm // Reply

    These larceny allegations on Tongasat and co. were ridiculous. “Further, the Supreme Courts curiously commented the appeal was not altogether easy to understand.”
    That showed those who made the allegations didn’t understand the nature of the transaction. Also the attempt by the T/Herald analysis to describe the satellite slots issue was good. But it lacked crucial information and proper language in describing the regulatory and technical background. In a nutshell, outer space including the geostationary orbit is a limited natural resource. No one person or nation owns it. It belongs to the world and all people of the world have the right to access the GEO orbit, in the same way citizens of Tonga have the right to access the ocean (Tonga’s territorial waters), a limited natural resource.
    The procedure to access Tonga’s territorial waters is through a licence issued by the Tonga Government. The procedure for accessing the GEO orbit is managed by the ITU. A person, company or institution (from any country) may apply to the ITU to access the GEO orbit. The application must be submitted through a sovereign nation who is a Member State of the ITU. So the ‘Tonga national assets’ argument that the Tongan politicians and media have been using for the past 25 years have been either a complete malicious lie, misunderstanding, fabrication or complete ignorance. People who publicly followed that argument should apologise to the people of Tonga for misleading them. That’s why the Courts dismissed these allegations. They simply have no legs to stand on. Tongasat had exclusive rights by way of an agreement with the Tonga Government. It had the right to access the GEO orbit through the ITU procedures, as an agent of the Tonga Government. BUT THE TONGA GOVERNMENT WAS STILL THE SIGNATORY TO THESE APPLICATIONS. The people of Tonga need to understand this because they had been lied to and misled to believe that Tongasat stole money from the people of Tonga. FACT: Tongasat has never been found guilty of such a case. FACT: Tongasat paid over 50 million US dollars to the government up to the 2009. That was over 2.5 million dollars per year.
    Now that’s sufficient facts for any ordinary person to make a rational judgement of the issue regarding Tongasat. Question: Would the Tonga Government take away TOML’s revenue generated from seabed mining? Of course not! So why taking away Tongasat’s earnings? It’s just stupid and illogical!
    Commenting on the T/H analysis:
    “So TOML, sponsored by the government of Tonga, put in a request to the ISA to have access to the CCZ. (It is also rumored that TOML has hired Tongasat expertise to help in dealing with international law and regulations regarding the Commons.)”
    Why would T/H publicise a rumour? No wonder the people of Tonga are so misled by the media and politicians. No one seems to get their facts right before going public. T/H, all media and politicians have a responsibility to produce and publicise facts not rumours. You need to chase the truth guys.
    It is time to move on from the Tongasat issue and focus on developing this resource for Tonga’s future.
    QUESTION: What’s Tonga’s satellite slot assets?
    ANSWER: THE SLOTS AREN’T THE ASSETS. THE ASSET IS THE RIGHT OF TONGA, AS A SOVEREIGN NATION AND MEMBER STATE OF THE ITU, TO FACILITATE ACCESS TO THE SPECTRUM AND ORBITAL RESOURCES.
    That means anyone, including Tongasat, can access the GEO orbit through the Tonga Government.

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