Landowners protesting against the Special Agricultural Business Leases (SABL). Picture courtesy of M. Namarong
The government of Papua New Guinea is threatening to endorse a huge and unlawful land grab by converting illegally acquired leases into registered land.
Between 2003 and 2011 mainly foreign owned companies used Special Purpose Agriculture Business Leases to steal over 5 million hectares of land from rural village communities.
A Commission of Inquiry report in 2013 found the leases had been unlawfully issued. Landholders had not given their informed consent, government authorities had not followed proper processes and the promised agriculture projects were largely bogus.
The Prime Minister has repeatedly promised to cancel the leases as recommended by the Commission of Inquiry but politicians and bureaucrats have been dragging their feet. Thirty (30) months after the Commission of Inquiry reported still no leases have been cancelled.
Now, rather than canceling the leases, Lands Minister Benny Allen, is advocating a different approach. His Department is proposing to convert the leases to registered land and issue new leases to the companies holding the SABLs. [http://www.looppng.com/content/government-cancels-sabl-leases]
The process would involve landowners forming Incorporated Land Groups, which would then register the land with the government who will then issue the subleases.
Allen says he has already prepared a cabinet submission outlining the proposal and will be seeking endorsement from the National Executive Council.
But the proposal relies on powers the government does not legally have and would not only compound the injustice already suffered by village communities, it would leave them even worse off. Converting the titles to another form of tenure will still leave the land in foreign hands.
One: Government does not have the power to decide
The Lands Minister's proposal is that customary landowners should form ILGs, the SABL leases will then be converted to registered land and then subleases issued. But none of these decisions can lawfully be made or directed by government, as it does not have the power to decide what happens to customary land.
Only the landowners themselves can decide if they want an ILG, if they want to register their land and if they want a sub leases issued. They even have the power to decide whom the lease is issued to. And each of these decisions can only be made after a lengthy and intensive process of consultation and empowerment [see endnote]
Unfortunately history shows us government is incapable of dealing fairly and honestly with traditional owners and respecting their legal right to decide what happens on their land. This has been demonstrated in all the resource sectors including oil and gas, mining, forestry and agriculture.
The giant Exxon-Mobil LNG project was rushed into operation without the genuine landowners ever being identified. Hearings to identify the landowners affected by the Ramu Nickel Mine are still continuing, four years after the mine started operations. Seventy (70) SABL leases were issued without the informed consent of the landowners.
In proposing to convert the SABL leases the government is assuming powers it does not have and overriding the rights of traditional landowners.
Two: The customary landowners will still lose control of their land
Land registration and sub-leases means the landowners will still lose control and use of their land. It is just another form of land alienation, which will deprive rural people of their most vital asset, which they rely on for their daily subsistence and cultural heritage. To make things even worse the land registration will be in perpetuity, meaning it is forever. Customary landowners will never get their land back.
Three: Land area far too large
The SABL lease areas are huge, over 5 million hectares in total. That is 12% of the whole of PNG. On average each individual leases covers an area of some 65,000 hectares. This is far larger than is necessary for any agriculture project. The three genuine leases found by the CoI, which were for coffee plantations, covered less than 425 hectares in total!
Most of the SABL lease areas have in fact been acquired for logging or land speculation, not genuine agriculture activities. Where there are genuine agriculture activities within SABL areas they require far far less land than that actually acquired.
There could be no justification for registering 5 million hectares of customary land as the Minister is proposing.
Four: Conversion would allow the illegal logging to continue
The unlawful SABL leases have in some cases been used as a cover for illegal logging operations. The Forest Authority has allowed SABL lease holders to carry out large logging operations, ostensibly to clear land for agriculture planting. More than 5 million cubic metres of logs valued at over $500 million have been exported from SABL areas.
A process to convert the SABL leases to registered land will allow the government to continue to ignore the illegal logging rather than stopping it.
Five: Leaseholders not fit and proper persons
The current SABL leaseholders did not comply with proper processes and procedures in acquiring their leases. In many cases the Commission of Inquiry found evidence of fraud and in some cases recommended criminal investigation. These companies are not fit and proper persons and should not be allowed to retain their control of the land or be issued with any new leases.
Six: Conversion would undermine the Constitution
Land registration and sub-leasing to corporations defeats third National Goal in the Constitution. Customary landownership is central to the concepts of National Sovereignty and Self Reliance. Converting the SABL leases will further disenfranchises local people to the benefit of big-business and foreigners.
Seven: Lands Department dysfunctional and corrupt
The Department of Lands and Physical Planning is too centralized, dysfunctional and corrupt to be trusted or allowed to administer customary land at the current time. Rural landowners have no way of approaching or consulting Lands Officers in the capital Port Moresby or challenging their decisions. The SABL leases are just one example of the unlawful and often corrupt activities of the Department. What is required is a total overhaul of the Department, removal and prosecution of those involved in unlawful activity and a completely new system of land administration, not just some token staff changes, before any further land acquisition is attempted or any new titles issued.
Converting the SABL leases to registered land and issuing subleases is not something the government can decide on. It would not only repeat all the injustice and human rights abuses inherent in the original SABL leases it risks compounding the problem by giving secure title over vast tracts of land to foreign speculators without the informed consent of traditional landowners.
Land registration would actually be worse than the SABL leases as it is not limited by time and once commoditized land can be sold, leased or mortgaged again and again. It is the first step to making people slaves and excluding them permanently from their land.
The only right and proper course of action is for the government to cancel the SABL leases and return the land to the customary landowners. It will then be for the people to decide on the future for their land.
Justice Gavara-Nanu in Maniwa v Malijiwi 
For the landowners to be sufficiently informed of the new Government policies such as introduction of SABLs which would adversely affect their traditional lifestyle; more in-depth awareness meetings should have been conducted. This could have been achieved by Government officers travelling to the SABL areas and talking to the landowners in their villages. This exercise should have been done over a period of time, say six or twelve months or even more so that the people were made aware of and understood what SABL is about, its benefits, advantages and disadvantages and so on. To me, this is the true Papua New Guinea way of consulting with people in the villages, especially where new projects are introduced in their areas and especially where SABLs would attract other projects, such as the introduction of oil palm plantations in the SABL areas. In introducing projects such as this which would have permanent and long term effect on their land, genuine and meaningful consultation with the landowners must be carried out among the landowners. This is emphasized by the Constitution in the Directive Principles under the fifth goal, which provides for promoting and protecting Papua New Guinean ways
Papua New Guinean way of meeting and consultation with landowners as I discussed above and as provided by the Constitution was required because the SABL and the related activities or projects were going to interfere with and affect their traditional lifestyle, their customary rights to land, rivers, the sea and forests. The SABL was granted to the fifth defendant for 99 years, that is how long the landowners would be denied from the use and enjoyment of their land. So the generations of landowners would be affected. This is why the defendants needed to go to the villages in SABL areas and talk to the landowners, in their families clans and tribes, in the languages they could understand. If they did understand English, Pidgin or Motu, then use interpreters to interpret things in their own languages. This to me is the Papua New Guinean way of consultation and making awareness to the landowners as envisaged by s. 5 of the Constitution. By doing things this way, people and their cultures will be recognized, acknowledged and respected.