Department of Lands still dealing in illegal SABL leases
The Department of Lands is still ignoring the SABL Commission of Inquiry findings and dealing with SABL leases found to have been illegally issued and recommended to be revoked, as if there is nothing wrong with them.
The Department has recently issued an Official Copy of the State Lease over Portion 17C in Oro Province despite clear findings by the SABL Commission of Inquiry, published in 2013, the lease was “improper and unlawful” and should be “revoked forthwith”.
The CoI found some landowner signatures were fraudulently acquired and concluded:
“All in all, the COI found that the issuing of the SABL over Portion 17C to MVMCL [Musa Valley Management Company Limited] which was then sub-leased to MCL [Musa Century Limited] was improper and unlawful”.
“We also found that consent were not obtained from the majority of the landowners to lease their land for the SABL on Portion 17C. In addition, the SABL is not founded upon a proper Lease-Lease back instrument in accordance with Sections 11 and 102 of the Land Act and therefore, is defective and void”.
“We found therefore, that the SABL over Portion 17C was improperly and unlawfully granted to MVMCL and therefore, any subsequent sub-lease arrangements would be also be deemed to be void and of no effect”.
“We recommend that the SABL over Portion 17C in the Musa-Pongani area issued to MVMCL and sub-leased to MCL is to be REVOKED forthwith.”
(CoI report [pdf], pages 218 and 219)
The CoI also found:
“The developer MCL is not interested in developing the oil palm and cattle project but rather using them as an excuse/guise to obtain a Forest Clearance Authority (FCA) and embark on a full scale logging operations instead” (page 214)
Despite these clear findings, the Department of Lands is carrying on as if nothing is wrong wth the leases – action that suggests the corruption and mismanagement in the Department is still flourishing.
The findings of the Commission of Inquiry
Not all the landowners consented to the SABL over Portion 17C and there were substantiated allegations of fraudulent conduct by government officials and company representatives.
The land investigation process was not properly carried out and the Land Investigation Report was incomplete and unreliable. The Provincial Lands Officer was ‘forced’ to sign a LIR prepared by someone not employed by the Department and with no input from the Provincial Lands Office.
There was no proper awareness carried out to inform people about the proposed agriculture projects.
The Agriculture Development Plan was ‘sketchy and vague’ leading the CoI to conclude:
“the developer MCL is not interested in developing the oil palm and cattle project but rather using them as an excuse/guise to obtain a Forest Clearance Authority (FCA) and embark on a full scale logging operation instead”
“An estimated 90% of the land (Portion 17C) is thickly forested (with high quality merchantable logs)” (page 214)
“We found that very little awareness was carried out on the SABL over Portion 17C in the Musa-Pongani area. The majority of the affected landowners were not consulted and have not participated in any meetings or hearings held to gauge landowner’s views and agreements on the SABL as part of the land investigation process. Majority of the landowners have not given their ‘informed consent’ to lease their land for SABL and have not signed any documents to indicate their agreement and consent. Some signatures were fraudulently obtained. The informed consent of the customary landowners to lease their customary land is the most fundamental primary requirement to issuing an SABL and without such consent been properly obtained no SABL can be issued. We discovered that majority of the landowners in the villages in and around the Musa-Pongani area were not involved and did not participate in the initial application stages to obtain an SABL over Portion 17C”. (p217)
The history of the SABL over Portion 17C
The SABL over Portion 17C in fact started life as a smaller (211,600ha) lease over Portion 16C.
In December 2008 the land was acquired by the State through a 99 year lease and leased to Musida Holdings (a company owned and controlled by some of the landholders).
These leases were challenged in a court case – Musa Valley Management Company and Musa Century Limited v Lands Secretary, Lands Minister and Musida Holdings (2010).
The National Court found the leases were ‘seriously flawed’ and declared them null and void for a failure to follow proper process under the Land Act and significant errors of law, in particular securing the consent of customary landowners to both leases.
MVMC is owned and controlled by a different group of landowners promoting their own preferred developer of an agro-forestry project. The Commission of Inquiry later concluded MHL was formed by landowners living in the Musa-Pongani area and MVMC was formed by landowners living in POM.
A Notice of Revocation of the SABL over Portion 16C was issued by the Department of Lands in February 2010 and published in the National Gazette.
But the fraud and illegality did not stop there. A new lease was then granted in Sept 2010 to MVMC over the larger (320,060ha) Portion 17C (which incorporates 16C). The SABL was supposedly issued for the purpose of oil palm and cattle projects.
MVMC then sub-leased the land to MCL, a company 99.9% owned by a Malaysian, Kem San GO.
These leases were found by the Commission of Inquiry to have been illegally issued and were recommended to be revoked – but the Department of Lands is ignoring those findings.