It is now 455 days since Prime Minister Peter O’Neill was told that the SABL leases were unlawful and should be revoked.
It was on June 24, 2013 that he was given the reports of the SABL Commission Inquiry which detail the widespread fraud and mismanagement used by foreign logging companies to gain illegal access to over 5 million hectares of land.
O’Neill has promised to cancel the leases and stop the illegal logging several times.
In September 2013 O’Neill told Parliament:
“We will no longer watch on as foreign owned companies come in and con our landowners, chop down our forests and then take the proceeds offshore”
But, despite an NEC decision in June we are still waiting for the leases to be cancelled and the logging stopped.
For 455 days O’Neill has failed to revoke the SABL leases and has been complicit in the illegal logging of our forests by foreign logging companies.
Prime Minister Peter O’Neill has aided and abetted the theft of logs worth hundreds of million of kina and the destruction of thousands of hectares of pristine forest.
The strange story of Sovereign Green Global Australia, Green Giant Venture Fund, Astra Resources and a REDD project in Milne Bay/Oro
By Chris Lang, REDD Monitor
Sovereign Green Global is, according to its website, running a REDD+ conservation project, “located primarily in the Milne bay province of Papua New Guinea”. The project covers “approximately 125,000 hectares of rainforest”. But details of the project are scant and the information that is available rings plenty alarm bells.
The REDD project in Milne Bay province is supposed to reduce emissions from deforestation by protecting the forests from logging and conversion for agriculture. It will do so, according to Sovereign Green Global, “by offering the farmers financial incentive and intact forests rather than income received from deforestation”.
Sovereign Green Global does not explain how this will prevent logging or palm oil companies from clearing the forests.
Clean Development Mechanism or REDD?
The project is listed on the CDM Bazaar, a website run by the UN Environment Programme as “a global ‘virtual information exchange place’” about the Clean Development Mechanism that is “open to all interested parties”.
At a first glance, the website looks like an official UN website listing CDM projects, but in fact any company can register and post its project details on the website.
On CDM Bazaar, the Milne Bay project is described as an “Avoided Un-Planned Deforestation project”, using an “an existing CDM methodology”. The project idea note lists seven methodologies, and states that “the project falls within the category AFOLU – REDD – Avoiding unplanned deforestation and degradation (AUDD)”. That is, of course, a Verified Carbon Standard (VCS) REDD activity, but it is not recognised under the CDM.
The project idea note states that the project is “located in PNG and contains 58,967 ha of rainforests”. That’s less than half the area claimed on Sovereign Green Global’s website.
The project idea note states that VER credits will be available from the project from January 2014. But a page on Facebook, titled “Carbon Trade Project”, includes a photograph of “the MOA and MOU with Sovereign Green Global Australia Ltd for the REDD Project in Mimbui land and East Collinwood Bay”. The photograph is dated February 2014:
So much for free, prior and informed consent.
Sovereign Green Global
A company called Sovereign Green Global Ltd was registered in the UK in November 2012. The company address was 145-157 St John Street. For £49.99 per year, Companies Made Simple will register a company at this address. Sovereign Green Global shared this address with almost 40,000 other companies.
In January 2013, Tony Adams took over as director of the company, and remained in place until the company was dissolved in June 2014.
Tony Adams is also the Chairman and Founder of Sovereign Green Global Australia Pty. Ltd., the company with the Milne Bay REDD project on its website. The company’s website provides little information about the company, apart from explaining that,
Sovereign Green Global Australia is a global company with a network of individuals dedicated to Humanitarian and Environmental Issues.
Sovereign Green Global’s website was registered (anonymously) in January 2013.
Green Giant Venture Fund
The project idea note explains that the REDD project in PNG is being developed by Sovereign Green Global together with the Green Giant Venture Fund.
Other than an address in Brazil and an address in the USA, Green Giant Venture Fund’s website provides little information about the company.
There’s not much information available elsewhere, apart from a series of press releases of agreements with companies developing carbon projects. Such as this one, in which Green Giant Venture Fund is described as follows:
Green Giant Venture Fund has expertise and experience in Carbon Credit Project (CCP) Development and provides technical, political and legal support required for the project and client. The Fund will also advise as to the strategy and tactics for effecting a forward financing by framing a strategic partnership in the Carbon financial sector and by executing a Carbon Finance option (FSCCP) aimed at capitalizing the client’s current and future (CCP).
Green Giant Venture Fund has been hired by several companies to sell carbon credits.
Grant Galloway is the director of Green Giant Venture Fund. In 2011, Green Automotive Company hired Green Giant Venture Fund:
Green Automotive Company Corporation (OTC:GACR) announced today the engagement of Green Giant Venture Fund as part of the Company’s plans to sell forward it’s expected allocation of carbon credits generated by future sales of it’s zero emission, All-Electric vehicles through the developing “Cap and Trade” commodity market.
Today, there is no mention of either “carbon credits” or “Green Giant Venture Fund” on Green Automotive Company’s website.
Green Giant Venture Fund’s website includes this statement about carbon credits (emphasis added):
Buyers have five reasons to purchase carbon offsets. They purchase carbon offsets for compliance to regulated markets, pre-compliance to regulated markets, investing for a financial return, carbon neutral product offsetting, and public relations.
The bit about investing in carbon credits “for a financial return” sets off more alarm bells.
Green Giant Venture Fund’s website lists the PNG REDD project and states that,
PDD [Project Design Document] is currently under development and is 90% completed. Estimated at 48m VCU credits with possibility of moving to Gold Standard.
The Milne Bay project idea note includes the Gold Standard’s logo at top of each page, suggesting a little more than the “possibility of moving to Gold Standard”. I’ve written to the Gold Standard to check whether Sovereign Green Global obtained the necessary permission before using the Gold Standard trademark in this way.
In March 2014, a UK-based mining company called Astra Resources PLC announced that it had signed an agreement with Sovereign Green Global, under which Sovereign Green Global would provide €20 million “equity capital injection” followed by €780 million in “equity capital, knowhow and assets”.
Sovereign Green Global’s Tony Adams said,
“As Chairman and Founder of Sovereign Green Global Australia I fully support Astra Resources and its endeavours to create a cleaner and more sustainable environment for future generations. Sovereign will invest substantially in developing this new technologies [sic] and will now make a further commitment of carbon credits to the ongoing process of the green energy solutions that Astra are developing.”
The Australian describes the deal as “particularly curious”, and notes “that there appears to be no evidence that [Soveriegn Green Global Australia] has the capacity for multi-million-dollar financing deals”.
By a strange coincidence, Astra Resources’ registered address is 145-157 St John Street, the same address as the UK version of Sovereign Green Global.
In 2013, a former director of Astra Resources told the Australian that a document that the company used to raise up to US$45 million from Australian retail investors contained “significant misleading and false statements”. The Australian reports that,
Among those statements was a claim that Astra Mining was looking to raise €1 billion ($1.42bn) via an initial public offering on the Frankfurt Stock Exchange, of which $700m had already been committed by major Korean and US investors.
Which sounds strangely similar to the deal with Sovereign Green Global.
Astra Resources’ press release states that,
SGGA [Sovereign Green Global Australia] are currently in the process of completing projects in the following areas and they are PNG Milne Bay, Philippine Province of Negros, and Vanuatu. These three areas specifically relate to over 200 million REDD+ Credits. These credits are at the stage of certification and will be settled over the next few months. The credits will be warehoused with a major investment bank and a line of credit will be allotted to SGGA.
In May 2014, the Australian Securities and Investment Commission (ASIC) started legal action against Astra Resources PLC and its directors.
On 4 June 2014, Astra Resources was suspended from the European Share Trading Exchange GXG Markets. Here’s how GXG Markets explains the suspension:
The Company is currently under suspension for supplying inaccurate information that was required as a condition to move up from the GXG First Quote to the GXG Main Quote market and has previously been suspended for corporate governance failings in relation to filing accurate information to Companies House (UK) in a timely fashion.
On the same day, Astra Resources announced that it has “taken a very significant position in the carbon reduction market on its balance sheet in exchange for 270m Euros of scrip”. (Scrip is a substitute for legal currency – outside the company it is worthless.)
The carbon reduction benefits are from the management of tropical rainforests at a country level throughout the Asia Pacific region. Astra’s partners have negotiated country level agreements, and are using an internationally recognised financial registry, as well as the most experienced science teams in the region.
So it appears that Sovereign Green Global has sold carbon credits from three REDD projects (that may or may not exist) to Astra Resources (a company facing legal action and that has been suspended from GXG Markets) for scrip (which is worthless outside Astra Resources).
Leaked document reveals Adam Smith International’s propaganda strategy for governments: Bougainville beware
Adam Smith International (ASI) has been contracted to help the Momis government on Bougainville develop and put into place its long-term mining policy and legislation. We have obtained a document that shows the strategy ASI gives to governments so they can shape public opinion.
Written in 2004 the Strategy Document (350kb) assists governments develop propaganda in support of controversial or unwanted economic policies, such as the selling off of public resources to companies. Propaganda is the art of manipulating peoples’ ideas and behaviour through information so that they act in a way that benefits the powerful, whether it be the government or a big business.
The document begins: ‘In economic reforms there are three communications mistakes particularly worth avoiding. The first assumes that not communicating involves fewer risks … Your government needs stakeholders to do something, to think or to behave in certain ways, so it is your responsibility to motivate them. So you must take action or behaviour will not change. Communicate or face the consequences’.
For example, on Bougainville the Momis government needs people to accept that industrial mining is necessary or essential – the island cannot do without it. So we can see that the government has released stories and speeches arguing that there will be no independence or autonomy without mining, a message which is designed to change the way landowners and citizens think and behave.
ASI go on to explain how you construct propaganda for different stakeholders groups such as landowners, workers, civil servants, NGOs, etc. First you have to find out how they think, and produce propaganda that addresses their fears, and appeals to their desires.
ASI advise, ‘to find out what large groups of people think, we resort to opinion sampling. There are two types, focus groups and opinion polls, each with distinct advantages and drawbacks’. With respect to focus groups ASI argue, ‘this shows us what each group thinks in detail’. On the other hand opinion polls ‘’can yield statistically valid data not available from focus groups’.
ASI note ‘most large countries have several companies capable of reliable polling’. Though if not, ‘skilled university demographers can do similar work’.
Once governments have intelligence on how different audiences think and feel they can begin to construct propaganda that targets these thoughts and hopes. In Bougainville people want to live a happy, peaceful, and independent future. So it is necessary that the government delivers messages about mining that appeal to this desire – there will be no happiness, no development, or independence without mining.
ASI advises, ‘Once you know what your audience think, design message to grab their attention and motivate them’.
ASI warn governments it is important that their propaganda does not seem like propaganda, if it does people wont believe it – ‘anything that implies propaganda turns people off’. For example, they note when making propaganda videos ‘at ASI we rarely use narrators, preferring to film real stakeholders using their own words. What they say is convincing because their testimony is honest and vivid’.
ASI also note when delivering propaganda, ‘journalists are perhaps the most important audience of all,
since they influence almost all other stakeholder groups. You want them to understand [the economic reform] so that they can explain it correctly and so that they are less likely to fall prey to charges levelled by your opponents’.
In a special section in the strategy devoted to media relations. ASI advise governments to ‘cultivate good relations with reporters … Treat them with respect. Return their phone calls promptly and courteously’. ASI continue ‘issue press releases often … [this] will help kill off the foul rumours spread by your opponents’. Also they argue ‘put quotes into your press release, telling reporters why this matter is important … do not bribe journalists. Educate them, put on seminars and conferences, take them on road trips to privatised industries or buy them lunch and discuss the issues openly’
So if you are trying to sell Rio Tinto’s return, or mining to a worried public, you need journalists to help you sell this as good news, which everyone will benefit from. This will be particularly helpful when activists produce evidence that shows for instance Rio Tinto are war criminals, or have been involved in polluting vital ecosystems. So give the media plenty of quotes, and press releases – buy them lunch, wine and dine them, so they see your point of view is the right one, and opponents are nothing by activists talking nonsense.
ASI also give government advice on how to deal with journalists who publish stories that are critical. For example, if a journalist report about the negative experiences landowners have had with mining, such as pollution or violence. In these cases ASI advise, try to ‘talk to the editor or publisher. If that does not work, give your best leaks and stories to their chief competitor. And if possible in some cases exclude bad newspapers from your advertising budget’
When publishing propaganda ASI advise governments to target a range of audiences using a range of mediums. So we have seen the Momis government push the mining/Rio Tinto agenda through a range of different mediums that target particular audiences. New Dawn radio goes out to communities in certain regions of Bougainville. Consultation forums target landowners. Social media hits the middle classes.
ASI emphasise to governments many different mediums should be used. They claim for instance ‘comic books are easily read by the semi-literate’. They also mention a £270,000 (K1 million) video they produced in Tanzania ‘ASI got months of free television publicity in Tanzania for the government’s reform programme by hiring a popular entertainer to produce a pop video on privatisation’
ASI conclude with one last important piece of advice ‘never forget face-to-face meetings’. So we have seen the Momis government use ‘consultation’ forums as a place to encourage people into supporting mining.
ASI also note whenever delivering messages make use of the President. ‘Your President or Prime Minister can get you coverage better than anyone else in your country. Have him or her make speeches and grant interviews … as often as possible’. Not surprisingly the President has become the public face of mining.
Sadly this strategy documents is not interested in the future of the people or the land, only in manipulating citizens into accepting economic policies that will benefit the powerful.
Who is writing Bougainville’s new mining policy and law? Some background on Adam Smith International
It has recently been publicised that Adam Smith International is the organisation who will assist the Bougainville government to draft a permanent mining law and policy. This law and policy will have far reaching impacts on future generations, so it is important they reflect the wishes and interests of all Bougainvilleans, but especially landowners. Adam Smith International sadly does not have a history of working with communities or defending their interests.
Here are some key facts about Adam Smith International:
1) ‘Far Right Wing lobby group’
Adam Smith International was set up by staff from the British based Adam Smith Institute, an organisation that is described by the respected UK journalist, George Monbiot, as a ‘far right-wing lobby group’; which means they support a world where big-business can own and exploit all key resources, such as land, minerals, oil, and water, in addition to using labour cheaply, without protecting workers rights. The Adam Smith Institute in particular champions policies that minimise or remove taxes and regulations for corporations/big companies (like environmental/labour protections). Corporations (big companies) are also among their primary donors.
2) Community ownership
Both the institute, and Adam Smith International, do not believe in the common or community ownership of property, and strongly advocate for the privatisation (private company ownership) of resources, including land and water.
3) Pushing privatisation on ‘unwilling populations’
In a statement to the UK Parliamentary Select Committee on International Development the respected NGO, World Development Movement, which campaigns against economic injustice, claimed Adam Smith International makes money from aid by pushing privatisation on unwilling populations. That is, they push for changes in property systems so big companies can buy up land, minerals, water and other communal or publicly owned resources. The NGO observes:
‘The consultancy firm Adam Smith International (ASI) received £270,000 of UK aid money in 1999 to produce a PR campaign in Tanzania involving the use of a national comedian in a series of TV adverts as well as a pop video—all promoting the country’s privatisation programme. The pop video had the following lyrics: “Young plants need rain, businesses need investment. Our old industries are like dry crops and privatisation brings the rain. When the harvest comes, there is plenty for everyone.”
More generally, ASI notes that it has the ability to “help muster the critical political support necessary to carry policies through to their successful conclusion”. It has built up a reputation as the consultant that “sells” privatisation to an unwilling population. In Ghana, DfID funded a “public awareness raising programme” about the benefits of privatisation. In India ASI was given aid money to produce a film about the benefits of privatisation’.
4) Mass suicide
In India, Adam Smith International were paid £1.65m by the British government to support local government policies that convinced local farmers to shift from subsistence gardens to cash crops. Many fell into debt they could not pay, which led to mass-suicides. According to The Independent ‘thousands of peasant farmers who were forced to approach unscrupulous money lenders to fund fertilisers, pesticides and water boreholes that produce little or no financial return. Among the methods of suicide chosen by victims has been to drink the pesticide they hoped would transform their economic prospects’.
5) Boomerang aid
Adam Smith International has made large amounts of money in Britain from aid work (sometimes known as boomerang aid). According to Britain’s Foreign Minister the company was awarded the following amounts between 2008-2013: 2008-9: £42,266,339 (K170 million); 2009-10: £13,785,832 (K60 million); 2010-11: £33,273,602 (K133 million); 2011-12: £66,409,259 (K260 million); 2012-13: £16,356,209 (K65 million).
6) Large fees and salaries
According to Britain’s Public Accounts committee, a parliamentary committee responsible for making sure public money is not wasted, Adam Smith International award its executives and directors large fees and salaries. The committee observed:
‘Our attention has been drawn to Adam Smith International, which received £37 million (K150 million) from the Department [of International Development] in 2010-11. One of Adam Smith International’s Directors received remuneration of over £250,000 (K1 million) in 2011. A Director also received a dividend in 2010 of over a million pounds. Such excessive payments undermine public confidence that the Department’s aid money is being spent well. We were told that the Secretary of State has committed to holding discussions with those involved in delivering its international aid, including Adam Smith International, to emphasise the need to ensure value for money for the taxpayer’.
The Chair of the Public Accounts Committee added:
this ‘feels like an absolutely outrageous and appalling waste of this very precious money that you have secured to invest in developing countries and it is really depressing to read about’.
7) ASI in Bougainville
Adam Smith International have been contracted by the Autonomous Bougainville Government to design Bougainville’s mining policy and help draft the final mining legislation.
8) Errors in Bougainville reporting
Adam Smith International reporting on Bougainville features serious errors. They refer to the conflict as ‘social unrest’. In some reporting they claim the war lasted for several years, in other they suggest it went from 1990-2000.
9) Professor Otto and the World Bank
A leading expert taking charge of the ASI project is Professor Otto, who has done contracted work for the World Bank and the International Monetary Fund, organisations that share Adam Smith Institute’s ideology (all resources should be privately owned and controlled by large companies). He was also the Rio Tinto Senior Lecturer at the University of Dundee, and a Director at Battlefield Minerals.
National Court finds the SABL granted over the customary land known as Potion 144C East Sepik Province was granted in breach of the Constitution and mandatory statutory requirements
The landowners of Turubu in East Sepik were unlawfully deprived of their land when a Special Agriculture and Business Lease was granted to Sepik Oil Palm Plantation. The landowners were not consulted and never consented to the use of their land for logging and oil palm. The extensive clear-felling of their forest sanctioned by the National Forest Board was illegal.
The landowners are now confronted with the task of seeking millions of kina of compensation from the State for the unlawful environmental damage done to their land and the extensive loss of forests.
In a landmark decision [see below] the National Court has exposed the woeful lack of consultation that has taken place with communities across PNG before their land has been locked away in 99-year leases and the abuse of process by the Department of Lands.
Justice Gavara-Nanu highlights the importance of Papua New Guinea ways when consultations take place with local communities and the significance of the Constitution and National Goals in defining how consultation should be done in PNG:
There was no awareness conducted by the representatives of the State, more particularly the officers from the Department of Lands and Physical Planning and the East Sepik Provincial Government with the landowners to sufficiently inform and educate them of the intentions of the Government regarding SABLs and the effect the SABL would have on them and their land.
I am also not satisfied that the meeting held at Turumu Primary School on 25 July, 2008, met the requirements of meaningful consultation with the landowners. The first thing to note is that, the meeting lasted for only 50 minutes. That very clearly was insufficient time to gauge the landowners’ views on SABL. Furthermore, only 18 people spoke in the meeting. That meeting was the only one held. There is no evidence of similar meetings being held.
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.
The meeting at Turumu Primary School was not a meeting in the Papua New Guinean way. 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.
The meeting at Turumu Primary School fell far short of the type of consultation I am referring to, viz; the type of consultation that is envisaged by s. 5 of the Constitution and ss. 10 (2), (3) and (4) and 102 (2) of the Land Act.
Even if the meeting at Turumu Primary School constituted a form of consultation, it was still not enough to gauge the views of the landowners
Maniwa v Malijiwi  PGNC 25; N5687 (4 July 2014)
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS JR No. 983 OF 2011
LEO MANIWA for himself and on behalf of Kowiru village
OTHERS AS PER ATTACHED SCHEDULE
ARON MALIJIWI in his capacity as Director of Limawo Holdings Ltd & Director of Sepik Oil Palm Plantation Ltd.
HUI TECK LAU in his capacity as Director of Wewak Agriculture Development Ltd & Director of Sepik Oil Palm Plantation Ltd.
LIMAWO HOLDINGS LTD
WEWAK AGRICULTURE DEVELOPMENT LIMITED
SEPIK OIL PALM PLANTATION LIMITED
HONOURABLE PUKA TEMU – in his capacity as Minister of Lands & Physical Planning
PEPI KIMAS in his capacity as Secretary, Department of
Lands & Physical Planning
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani: Gavara-Nanu J.
2013: 20 Nov & 11 December
2014: 4 July
PRACTICE & PROCEDURE – Land Law – Special Agricultural & Business Lease – Land Act, 1996; ss. 10, 11 and 102 – Land Groups Incorporation Act 1974, ss. 5 (2) (c), (6) and 33 (1) – Constitution; ss. 5 and 53 – Meaning of meaningful consultation with landowners discussed.
Doriga Mahuru & Ors v. Hon. Lucas Dekenai & Ors (2013) N5305
Musa Valley Management Company Limited & Musa Century Limited v. Pepi
Kimas & Ors (2010) N3827
CounselH. Walley, for the First & Second Plaintiffs T. Boboro, for the First to Fifth Defendants
4th July, 2014
1. GAVARA-NANU J.: The plaintiffs seek review of the decision of the Minister for Lands and Physical Planning, Hon. Puka Temu, made on 2 September, 2008, to grant a Special Agricultural and Business Lease (SABL) over their customary land described as Portion 144 C, East Sepik Province, to Sepik Oil Palm Plantation Limited, the fifth defendant, which is the developer.
2. The plaintiffs seek an order in the nature of certiorari to quash the decision and to restore the land to them. This is the principal relief sought. The other relief are consequential which are sought by way of declarations. These relief relate to environmental damage, validity of agreements for the developer to clear forests, to harvest logs and to plant oil palm on the land.
4. The plaintiffs submitted that their land was acquired by the State which converted it into SABL without their consent. They submitted that a purported consent for their land to be converted to SABL was given fraudulently by a small and selected group of people who had vested interests. They further argued that even if the consent was given by the people who may have had authority to give consent, the landowners were not consulted, as such the consent was fraudulently given and was in breach of mandatory statutory requirements under the Land Act 1996, Land Groups Incorporation Act 1974, Forest Act 1991 and the Constitution.
5. The plaintiffs argued that the SABL was granted specifically in breach of ss. 10, 11 and 102 of the Land Act, ss. 7 (1) and 8 of the Environment Act, 2000, s. 90B of the Forest Act, ss. 5 (2) (c), 6 and 33 (1) and (2) of the Land Groups Incorporation Act 1974 and s. 53 of the Constitution.
6. The plaintiffs submitted that there was no awareness conducted by the defendants nor was there any meaningful consultation with the landowners before their land was acquired by the State for the SABL.
7. The defendants submitted that the SABL was properly and lawfully issued to the fifth defendant, they argued that the consent of the landowners was obtained before the SABL was issued. They said all the relevant requirements for the grant of SABL were complied with. In support of these arguments the defendants also adduced the Minutes of a public meeting held at Turumu Primary School, East Sepik Province on 25 July, 2008. That meeting was attended by individuals and representatives of 56 Incorporated Land Groups (ILGS). The affidavit of Michael Sino, the Acting Deputy Provincial Administrator for East Sepik sworn on 5 November, 2012, deposes that the meeting was conducted to gauge the views of the landowners about the Oil Palm project in their land and the SABL. Michael Sino chaired that meeting. He deposes that the meeting was widely publicized and even people from outside of the SABL area attended. He says the plaintiffs did not raise any objections to the SABL being granted and the oil palm project.
8. Aron Malijiwi, the first defendant and the Chairman of Limawo Holdings Ltd, which is the landowner company and a joint venture company with Wewak Agriculture Development Ltd, confirms in his affidavit that a public meeting was held at the Turumu Primary School on 25 July, 2012. Joseph Then who is the Executive Director of Sepik Oil Palm Plantation Limited and General Manager of Wewak Agricultural Development Limited also swore an affidavit on 5 November, 2012, in support of the evidence of Aron Malijiwi.
9. Sepik Oil Palm Plantation Ltd has two shareholders, Limawo Holdings Ltd, which holds 2,000 shares and Wewak Agricultural Development Ltd, the fourth defendant, which holds 8,000 shares. The Directors of Sepik Oil Palm Plantation Ltd are Hui Teck Lau also known as Sumitro Lau, the second defendant, Nyi Then also known as Joseph Then and Aron Malijiwi.
10. Wewak Agriculture Development Ltd has one shareholder, viz, Wewak Agricultural Development Ltd, which holds 10,000 shares.
11. The Directors of Wewak Agricultural Development Ltd are Hui Tech Lau or Sumitro Lau, Chiong Ming Ting and Ngi Then or Joseph Then. The Wewak Agricultural Development Ltd is an investment company, it also looks after the finances of the developer, Sepik Oil Palm Plantation Ltd in partnership, with the landowner company Limawo Holdings Ltd.
12. Limawo Holdings Ltd has 47 individual shareholders and 55 ILGs all holding 1,000 shares each.
13. The plaintiffs argued that acquisition of their land in the manner it was acquired by the State to convert it into a SABL for 99 years was also unconstitutional as it breached s. 53 of theConstitution. They argued that they have been unfairly deprived of the use, benefit and enjoyment of their land.
14. The plaintiffs submitted that when their land was acquired for SABL, the acquisition breached the requirements under ss. 9, 10, 11, 12 and 102 of the Land Act 1996. They argued that the purported consent given by the Directors of Limawo Holdings Ltd was not authorized by the landowners. They argued that most, if not all the landowners were not aware of that consent.
15. The plaintiffs have argued that ss 5 (2) (c), 6 and 33 (1) and (2) of the Land Groups Incorporation Act 1974 and ss. 37A of the Survey Act, Chapter 95 were also breached by the defendants. In regard to the breaches under the Land Groups Incorporation Act, 1974, the plaintiffs claimed that there were no applications for recognition by Land Groups with list of their members by the Registrar of Incorporated Land Groups. As to the breaches of the Survey Act, the plaintiffs submitted that there was no survey information collected on the land by the land offices and no surveys were done on the land. In regard to the breaches of the Land Act, the plaintiffs argued among other things that the Instrument of lease was not issued on an approved form. The plaintiffs argued that other requirements for land acquisition of customary land under ss. 9, 10 and 11 of the Land Act, were either not complied with at all or were not fully complied with by the Minister for Lands before the SABL was issued to the fifth defendant.
16. The defendants have raised issues regarding the authority of the principal plaintiffs to bring this application on behalf of other landowners. After carefully perusing and considering the materials before the Court I am satisfied that the principal plaintiffs have the authority of the landowners to bring this application to Court. There is overwhelming evidence showing that landowners have agreed for the principal plaintiffs to make this application. The principal plaintiffs have also acted under the authority of duly executed Powers of Attorney which have been signed by the elders of the Kowiru and Kaubaraka villages, which are in the SABL area.
17. In regard to the consent, it was signed on 2 September, 2008, by four people and witnessed by three people. The four people who signed the consent are Aron Malijiwi, the Chairman of Limawo Holdings Ltd, Martin Shukwei, the Vice Chairman of Lamiwo Holdings Ltd, Malcolm Nambon, a Director of Limawo Holdings Ltd and one Paul Bina, Chairman of Mamutika ILG. The three people who witnessed the signing of the consent were Pepi Kimas, Secretary for Lands, Jacob Waffinduo, Manager, Customary Land, Department of Lands and Physical Planning and Ian Jorundio, Manager, Legal Services, Department of Lands and Physical Planning.
18. The plaintiffs have argued that those who signed this consent did not obtain the views and consent of the landowners, before signing the consent. The plaintiffs have also argued that the meeting held at Turumu Primary School purportedly to gauge the views of the landowners was not a proper consultation with the landowners because most landowners were not made aware of the meeting and did not attend the meeting. There is evidence that many people that attended the meeting were not from the SABL area. This is not disputed. The evidence shows that the meeting started at 1.15pm and ended at 2.05pm. The meeting was attended by some public servants besides Michael Sino. According to the Minutes of the meeting 18 people spoke in support of the Oil Pam Project. The front page of the Minutes indicates that the meeting started at 1.15pm and finished at 2.30pm but the last paragraph of the Minutes indicates that the Chairman closed the meeting at 2.05pm. So the meeting lasted for only 50 minutes.
19. In regard to the alleged breach of s. 33 of the Land Groups Incorporation Act 1974, by the defendants where the plaintiffs claim that before the SABL was issued no list of names of landowners was lodged for the recognition of the customary land groups by the Registrar of Incorporated Land Groups, there is a list of names which appears to have been prepared for that purpose but the names have been typed and the people whose names appear on the list have not signed against their names. The list is annexed to Joseph Then’s affidavit. I have decided not to give weight to this list for two reasons, first it is not authentic as it has not been signed by the people named in the list, second it is hearsay in that it should have been produced to the Court through the person who prepared the list.
20. On 28 November, 2011, the landowners’ lawyers made a written submission to the Minister, the Secretary and the Principal Legal Officer for Departments of Lands and Physical Planning for the SABL to be revoked. The submission was in support of the petition by the landowners to the Minister for Lands to revoke the SABL. The petitioners were from the SABL area and the petition was signed by 70 people.
20. Having considered all the materials before me and the relevant laws governing the grant of SABLs, I have come to a firm view that the SABL granted over the customary land known as Potion 144C East Sepik Province was so granted in breach of the mandatory statutory requirements, viz, ss. 10 (2),(3), and (4) and 102 (2) and (3) of the Land Act. There is no evidence that the Minister made reasonable inquiries to satisfy himself that the landowners did not require the land either at all or for a period before issuing the SABL to the fifth defendant. There was also no agreement between the landowners and the Minister for the land to be acquired for SABL.
21. I do not consider the consent purportedly signed by the Directors of the landowner company for the grant of SABL represented the wishes of the majority of the landowners, if not all the landowners. There was no awareness conducted by the representatives of the State, more particularly the officers from the Department of Lands and Physical Planning and the East Sepik Provincial Government with the landowners to sufficiently inform and educate them of the intentions of the Government regarding SABLs and the effect the SABL would have on them and their land.
22. I am also not satisfied that the meeting held at Turumu Primary School on 25 July, 2008, met the requirements of meaningful consultation with the landowners. The first thing to note is that, the meeting lasted for only 50 minutes. That very clearly was insufficient time to gauge the landowners’ views on SABL. Furthermore, only 18 people spoke in the meeting. That meeting was the only one held. There is no evidence of similar meetings being held.
23. 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. Section 5 of the Constitution provides:
5. Papua New Guinean ways
We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.
WE ACCORDINGLY CALL FOR -
(1) a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and
(2) particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and
(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and
(4) traditional villages and communities to remain as viable units of Papua New Guinea society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.(my underling)
24. The meeting at Turumu Primary School was not a meeting in the Papua New Guinean way. 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.
25. The meeting at Turumu Primary School fell far short of the type of consultation I am referring to, viz; the type of consultation that is envisaged by s. 5 of the Constitution and ss. 10 (2), (3) and (4) and 102 (2) of the Land Act.
26. Even if the meeting at Turumu Primary School constituted a form of consultation, it was still not enough to gauge the views of the landowners.
27. For the reasons given, I am not satisfied that the majority of the landowners were made aware of SABL and its effect on them and their land. It follows that the purported consent signed by the Directors of the landowner company is null and void and of no legal effect.
28. There is no evidence that the land was surveyed, even if the land was surveyed, such surveys failed to comply with the statutory requirements. There is a report of some sort produced by Joseph Then, but I will give no weight to it because it should have been produced by the person who prepared it; in other words, it is hearsay.
29. I have also decided not to give any weight to the affidavit of Aron Malijiwi sworn on 5 November, 2012, because it relates to another proceeding, OS 910 of 2011, same with his other affidavit which relates to another proceeding OS 192 of 2012.
30. I also reject parts of Joseph Then’s affidavit, in which he says proper land investigation and awareness were done; these are hearsay.
31. It is also noted that the matters deposed to by Aron Malijiwi, Joseph Then and Michael Sino in their respective affidavits are disputed by Joe Wafewa, Peter Maliari and Steven Morubi.
32. Even if there was an investigation report on the land, there is no evidence that the landowners or at least the majority of them agreed to SABL.
33. There is also no Instrument of Lease in the approved form which the landowners were supposed to have signed. This Instrument should be produced by the Department of Lands and Physical Planning, through an officer who keeps record of such documents. See Musa Valley Management Company Limited & Musa Century Limited v. Pepi Kumas & Ors (2010) N3827.
34. In Doriga Mahuru & Ors v. Hon. Lucas Dekenai & Ors (2013) N5305, Cannings J, in his unreported judgment at p. 14, said:
“I maintain the approach I took in Musa Valley. To lawfully grant a Special Agricultural and Business Lease over customary land, the Minister must comply with all the requirements of Section 10, 11, and 102.”
35. I agree with his Honour. I have already found that provisions of ss. 10, 11 and 102 of the Land Act, were not complied with by the Minister when granting SABL to the fifth defendant.
36. I also find and declare that the SABL was issued in breach of s. 53 of the Constitution, in that the landowners were unlawfully deprived of their customary land.
37. For the foregoing reasons, I declare that the SABL granted to the fifth defendant on 3 September, 2008, by the Minister for Lands and Physical Planning is null and void. Any other related actions or projects undertaken or done either pursuant to or in relation to the SABL, such as logging agreements and or planting of oil palm in the SABL area are also declared illegal and null and void.
38. Any claim for damages by the plaintiffs arising from the logging agreements or operations and or planting of oil palm in the SABL area and clearing of forests should be pursued separately.
39. The defendants will pay the plaintiffs costs of and incidental to the proceeding.
___________________________________________________Harricknen Lawyers: Lawyer for the Plaintiffs Kuman Lawyers: Lawyer for the Defendants