By Joey Tau, Freelance Journalist, Pacific Media

The following is a brief sourced from the executive summary and recommendations of the report dated 24th June 2013.

There is growing concern over the way in which SABLs were acquired and the manner in which SABLs were being used for dubious agriculture and business purposes, as some instances indicated, generated heated debate. It was estimated that over 5.2 million hectares of customary land around the country had been alienated, mostly for ‘special agriculture activities” over virgin forest tracts containing tropical hardwoods. It was estimated that more than 400 SABLs have been issued over customary land since the early 1980s to the time the COI was established.

We recommend that the current SABL setup be done away entirely. We have carefully considered the option of retaining the SABL setup as an optional method for availing customary land for national development. We have fully considered retaining the SABL setup with more stringent safety features. In the end, our view is that the inherent risks associated with the option are the loop holes, inadequate or permissive ambiguities that are being used to abuse the SABL process and hijack land use after SABLs are granted.

Whilst we do note that there are success stories, especially in relation to relatively smaller SABLs, we have discovered serious problems with most of the SABLs.

We recommend that the mechanism for acquiring and releasing customary land as SABLs for land based development be reviewed with a view for it to be replaced with a better and risk free option. We recommend that the Department of Lands and Physical Planning (DLPP) practices be streamlined and strengthened. We recommend that a better option for accessing customary land for development be identified and process pathway which clearly shows all the vital stop points on that better option’s process path be mapped out.

We further recommend that the processes within DAL, PNGFA, DEC, and IPA be fully reviewed and mapped, to indicate their operating linkages. We have found inadequacies in all respective implementing agencies. We therefore recommend options for their capacity and structural adjustments.

The Government urgently settle a National Land Policy platform. We recommend a critical review of all land laws to harmonize practice and procedures for the land laws and their requirements, which will definitively settle the overarching National Land Policy. A policy platform will set the foundation for harmonizing the legal framework and pave the way for the State to access customary land in a non-threatening and landowner friendly manner.

We recommend that this National Land Policy be settled first so that the legislative and process reforms, as well as capacity and structural adjustments for implementing government agencies, can be informed in the proper context.

Summary of findings:

The Commission of Inquiry (COI) found widespread abuse, fraud, lack of coordination between agencies of government, failure and incompetence of government officials to ensure compliance, accountability and transparency within SABL process from application stage to registration, processing, approval and granting of the SABL.

Throughout the course of the inquiry serious allegations were levelled against officials and senior bureaucrats of government agencies involved in the management of SABL. The inquiry heard of bribes and inducements being offered by project developers and representatives of landowner companies to procure SABL titles.

The inquiry received evidence of undue political pressures being put on government officials by senior Ministers and politicians to fast-track SABL applications and issue titles. Incidences of political interference were numerous and were reported in respective individual SABL reports. For instance, during the inquiry into Bewan Palm Oil Development Limited (Portion 160C) former DLPP Secretary Mr Pepi Kimas said he was subjected to extreme political pressure from the Prime Minister’s level down, to issue a direct grant to Bewani Palm Oil Development Ltd. Former Sandaun Provincial Administrator, Joseph Sungi also told the inquiry he was forced by certain officers of DLPP to sign the Certificate of Alienability (CoA) despite the fact that he had not sighted any Land Investigation Report and had no idea if one existed.

The inquiry found instances of incompetence, failure, inaction and lack of commitment by officers of government agencies to properly and diligently carry out their statutory functions. Legal requirements were deliberately breached and proper processes and procedures were either by-passed or simply ignored.   

The inquiry also found instances where consent of landowners for SABL titles to be issued directly to foreign owned companies were obtained fraudulently through misrepresentation, thus landowners not being aware that their consent were obtained to approve particular entities or groups to be granted an SABL over their customary land.  

In some instances, SABLs are practically sold (total alienation) to foreign developers for the whole or balance of the 99 years, leaving NO residual rights for the landowners. The inquiry found 58 out of 75 SABLs were sub-leases to developers for 99 years leaving no residual rights to the landowners.

Other findings include:

• Lack of management and coordination by key agency DLPP.
• Lack of procedural guidelines on SABL.
• Missing SABL files.
• Incomplete land investigation processes with missing reports.
• Unauthorized issuing of Certificate of Alienability (CoA).
• Misconception on SABL.
• Lack of monitoring and compliance.
• Mismanagement and abuse of Forest Clearance Authority (FCA).
• Lack of auditing and compliance.
• Delay in processing permit applications.
• IPA doesn’t keep up to date records of companies and shareholders.
• The entire land management system in the country is in a mess.
• SABL failed at the implementation stage.

Recommendations:

• Parliament to promulgate a specific legislation for DAL in a form of an Act of Parliament that prescribes the specific roles, functions and responsibilities of DAL in SABL. Areas of monitoring and compliance will be reflected in the new legislation. Penalties and enforcement procedures will be included. Obligations of developers to confirm to set standards and practices including other requirements as conditions to obtain FCA will be explicitly stated. Prosecution will be swift for any breaches that occurred with ultimate cancellation of the FCA.
• DLPP to immediately formulate a workable policy on SABL with the involvement of other agencies (DEC, PNGFA, DAL, DPLLG, and IPA) so that there is consistency and uniformity in dealing with SABL across all agencies. The proposed policy will guide the entire SABL process from application stage to processing, approval and granting of SABL.
• Prescribing sanctions through criminal offences may not be adequate deterrence for bad practice. The report recommends a series of reviews that will guide and inform process and legislative reform. The inquiry is convinced that the best practice option is to install compulsory requirements along the SABL process path. It means that in practice, unless the first set of requirements are complied with progress forward in the process either stops or terminates.

Way forward for SABL – Lands reforms:

• As part of the recommended National Land Policy Harmonization exercise, a revised policy on compulsory land is urgent and imperative going forward. The revised policy on compulsory acquisition of customary land will, while permitting compulsory acquisition, restrict the purposes for which customary land may be compulsory acquired.
• The revised National Land Policy settle and state specific policy initiatives by which the State may compulsorily acquire land it needs for public purposes in urban areas, and reclaim any reserve and special purpose land in the nation’s capital city and elsewhere that was lost through irregularity and corruption.
• COI recommends that through the revised National Land Policy, the State develop a strategy on how inefficiencies in urban planning and physical planning need to be rectified and how powers in respective enabling statues need to be enforced. That will complement its strategy to acquire private land compulsorily, for a long term ‘Urban Renewal’ program. COI particularly note that Port Moresby appears to be severely affected by reserve land shortage.
• The way forward through the harmonization of laws and standardization of practices exercise is urgent. A National Land Policy framework is also imperative. Progress in NLDP reforms is critical for successful attainment of important projections in the DSP and its first MTDP. Finally, if voluntary mechanism must be found quickly, as right now there really is no risk free empowerment option available for our people at the lower end of the national sub-national spectrum.
• Finally, COI recommends that PNG’s land laws needs to be harmonized and practices of converting customary land for formal use need to be standardized. A harmonization and standardization exercise will serve two purposes: (1) it will make relevant options on acquisition provided by law easier to understand. Understanding is empowerment and staying informed in also being empowered. (2) it is a risk management option. Harmonizing the laws and standardizing practices will remove ambiguity and generality in the laws and practices.

Acronyms:

COI – Commission of Inquiry

DAL - Department of Agriculture and Livestock

DEC – Department of Environment and Conservation

DLPP – Department of Lands and Physical Planning

DPLLG – Department of Provincial Affairs and Local Level Government

IPA – Investment Promotion Authority

PNGFA – PNG Forest Authority

FCA – Forest Clearance Authority

LIR – Land Investigation Report

LGIS – Land Geographical Information System

CoA – Certificate of Alienability

EIA – Environment Impact Assessment

EIS – Environment Impact System

NADP – National Agriculture Development Program

EIR – Environment Inception Report

FMA – Forestry Management Agreement

NFB – National Forest Board

NARI – National Agriculture Research Institute

NLDP – National Land Development Program