Condemned SABL used for eviction application
In 2013, a Commission of Inquiry described an agricultural lease issued over 450 hectares of land outside Port Moresby as ‘improper and unlawful’.
The lease over portion 2465C, said the Commission, was one of a pair issued in a scheme that involved ‘misrepresentation and fraud’ and a ‘blatant disregard for the law’.
The Commission said those responsible for issuing the lease ‘must be held accountable for their unlawful conduct and actions’.
Yet, this week, the owner of that lease will appear before the courts, not to face justice, but to audaciously try and enforce the lease and use it to evict customary landowners from their own territories.
The case is a stark reminder of the government’s failure to undo the SABL land grab and implement the Commission of Inquiry recommendations, an inquiry that found more than 50,000 square kilometres of land had been stolen from village communities.
The Commission condemned the whole SABL scheme and ordered that most of the leases be cancelled. Six years later, despite many political promises, nearly all the leases remain in place and hundreds of communities are still being denied access to their most precious resource, customary land.
The eviction attempt also raises, once again, important questions about the obligations on the legal profession to ensure their clients claims are justified and that the court is given all the relevant information required to come to a just decision.
It will be for the Court to decide on the validity of the eviction application, but to assist the public understand the wider context, PNGi has put together an investigative history of the SABL over Portion 2465C.
SABL land grab
The SABL land grab was one of the largest attempts to illegally seize control of customary land in PNG’s history.
Over 5 million hectares of land, more than 12% of the whole country, was bundled up into Special Agriculture Business Leases, mainly for the benefit of foreign owned logging companies.
The largest lease was over 1 million hectares in size, but most were for areas of between 10,000 and 50,000 hectares – enough for a decent sized logging operation.
A few of the leases though had nothing to do with agriculture or logging. They were for much smaller areas, commercial sites on the edges of town. And one or two of these, such as the lease over Portions 2465C, were acquired not by foreigners but by Papua New Guinean citizens.
Whatever the size of the lease, in each case the impact was the same. Customary landowners were denied access to the land on which they rely, not just for food and sustenance but to sustain their whole culture and way of life.
Various United Nations bodies have condemned the SABL land grab for its blatant human rights violations and the discrimination against indigenous landowners.
The UN Committee for the Elimination of Racial Discrimination has written three times to the PNG government demanding to know how it is responding to the land grab and what it is doing to enforce the rights of its most vulnerable citizens.
The Committee’s latest deadline for answers expired on April 8 2019. Just like its previous deadlines, it was ignored by the government.
The lack of political action to reverse the SABL land grab is largely explained by the Commission of Inquiry’s history.
The Inquiry was never an idea conceived or condoned by PNG’s political elite. Far too many seasoned politicians had long standing links to those involved in the land grab to ever want it investigated and exposed.
That the Commission of Inquiry ever took place is due entirely to an accident of history and the failing health of Michael Somare. The Grand Chief was lying in a hospital bed in Singapore. His ultimate successor, Peter O’Neill, was still sharpening the political knives. For a few brief months then the mantel of power lay in the hands of an unassuming Deputy PM, Sam Abal, the only man Somare trusted not to stab him in the back.
Few now remember Sam, one of the nation’s briefest Prime Ministers, yet the SABL Commission of Inquiry is his lasting legacy.
When O’Neill took the Nation’s helm in August 2011, the Commission of Inquiry was one of the least palatable parts of his inheritance. Yet, despite the many hurdles that O’Neill threw in its way – funding was suspended a number of times, contracts were allowed to expire and deadlines passed without action – two of the three Commissioners doggedly persevered and submitted their final reports.
Those reports were devastating, and, with the world watching, could not be ignored.
O’Neill though tried to manage the outcomes in a familiar style.
He publicly acknowledged the findings, lamented the failings, promised action and then did nothing, waiting for everyone to forget. Only this time the media and the country did not forget. They kept coming back and asking what was being done.
Time and time again, O’Neill blamed everyone and anyone for not doing their jobs – bureaucrats, government departments and even Ministers have all been blamed for not cancelling the leases. But O’Neill has ensured nobody to date has been held accountable.
The advocacy group, ACT NOW! has documented many of O’Neill’s broken promises and lame excuses.
Included in the Commission of Inquiry reports were findings on the SABL lease for Portions 2465C and an associated lease 2466C.
The 99-year SABL lease over Portion 2465C was granted to Konekoru Holdings Ltd on 4 January 2010.
The lease covers an area of 457 hectares,‘close to the LNG Plant Site near the Papa/Lealea villages of the Central province’.
The lease allows Konekaru Holdings to occupy the land rent free for 99 years.
The acquisition of the lease was allegedly part of a scheme to profit from the construction and operation of the giant Exxon-Mobil LNG project.
At centre of the scheme, according to the Commission of Inquiry, was Gerard Kassman and his sons, Charles and John.
It was Charles who registered the company Konekoru Holdings, which was controlled by his father. While Charles and John were the owners of CJ Ventures, which received a sub-lease over the land from Konekoru Holdings.
The Commission was not shy about its findings:
The SABL issued to Konekaru Holdings Ltd (‘KHL’) over Portion 2456C [sic] was improper and unlawful as proper processes and procedures prescribed as minimum requirements under Sections 11 and 10 of the Land Act 1996 have not been complied with in granting the SABL.
We accordingly recommend that the SABL granted to Konekaru Holdings Limited over Portion 2465C to be REVOKED[emphasis as in the original]
This recommendation was based on a litany of abuses and legal irregularities the Commission found at every stage of the process observed to created and issue the SABL.
These flaws included:
- The informed consent of all landowners was never obtained;
- The claimed ‘landowner’ company was owned by only two individuals;
- A sublease involving CJ Ventures Ltd, was ‘fraudulent and improper’;
- The family who controlled both KHL and CJ ventures were not landowners from either Papa or Lealea village, thus defeating ‘the whole intent and purpose of SABL’;
- There was no obligatory land investigation or boundary walk and no public hearings to gauge landowners views;
- ‘The whole process was riddled with defects and flaws’ and was ‘high jacked’;
- The Certificate of Alienation was ‘signed under duress because of undue pressure’.
The Commission was even more scathing in its comments in relation to the second SABL, Portion 2466C, involving the exact same parties.
‘There was misrepresentation and fraud involved in the whole process’. It was carefully planned with ‘ulterior motives’ and ‘intended to benefit only a few people at the expense of the landowners’.
The Commission said those responsible for the ‘blatant disregard for the law’ ‘must be held accountable for their unlawful conduct and actions’.
Instead, it seems, those responsible are now seeking to use the ‘unlawful’ SABL as the pretext for an eviction exercise.
Despite the Commission of Inquiry findings, the Kassmans have remained undaunted about claiming their prize.
On 29 March 2019 Charles Kassman, as company secretary for Konekaru Holdings, issued court proceedings seeking to evict Vani Koiari and Igo Kolari from their homes on the disputed land.
The Complaint asserts Konekaru Holdings Limited is the registered lessee of Portion 2465C, having been granted a Special Agriculture & Business Lease during January 2010. It also states that the two defendants have erected temporary dwellings and taken up occupation of the land and have ignored various requests to vacate.
As well as a court order to vacate the land, Konekaru Holdings has requested a warrant requiring the police to ‘enter, by force and with assistance if necessary, on the Land and give possession to the Complainant’.
It is surely not a coincidence that Vani and Igo Koiari are the Chairman and Treasurer of the Incorporated Land Group (ILG) that has been leading the protest against the SABL lease.
In March 2018, the ILG wrote to the Minister of Lands Justin Tkatchenko. The correspondence pointed out the findings of the Commission of Inquiry in relation to the SABL leases over Portions 2465C and 2466C. It queried why the Department of Lands had not taken the recommended corrective action and revoked the leases.
Responsibility of intermediaries?
The complaint submitted to the District Court, outlined above, was put together by Greg Sheppard of Young & Williams; it bares his signature.
The legal claim Sheppard makes on behalf of his client, Konekaru Holdings Limited, rests on Section 6(1) of the Summary Ejectment Act 1952.
It states: ‘Where a person without right, title or licence is in possession of premises, the owner may make a complaint to a magistrate of a District Court to recover possession of the premises, and the magistrate may issue a summons in the prescribed form to the person in illegal occupation’.
This raises an important question. Is there a professional duty on lawyers to exercise some due diligence before presenting a claim made by their client to the court?
In this case, Greg Sheppard is taking a legal position that conflicts with the findings of the SABL Commission of Inquiry, which indicates that the customary landowners have a strong legal claim over the land, and those currently in possession of the state lease, have a flawed claim.
Has Sheppard seriously scrutinised these facts and formed an assessment the Commission of Inquiry got it wrong? Should he have to?
This is not the first time Greg Sheppard has advanced a legal position on behalf of a client, which later proved highly problematic.
The Administrative Inquiry conducted in response to the Manu Manu scandal, argues that a claim for payment submitted to the Department of Defence by Sheppard, on behalf of a client, rested on a clearly fraudulent statement.
The implication being, even modest inquiries would have revealed the false nature of the statement on which Sheppard relied to seek payment for his client.
Do lawyers, in such circumstances, have a professional duty to make basic checks before submitting a claim to the Courts?
In addition to the above, Sheppard was responsible for administering and advising the Inclusive Education for National Development for Community Education Trust, which lay at the centre of the Somare bribery scandal.
Under Sheppard’s watch, the Singapore courts claim that a Trustee, Philip Doehrman abused his position and solicited bribes to a close family friend, Sir Michael Somare Snr, and his son Michael Somare Jnr, who was also a Trustee.
This allowed Doehrman and his wife to benefit from a series of improper business deals involving the Trust.
While this bribery scandal put the spotlight on Sir Michael Somare, few questions were directed at Sheppard, despite his critical oversight role.
The Human Cost
The customary landowners from the villages of Papa and Lealea have been protesting the loss of their lands for many years.
In October 2014, a committee representing 16 clans from the Papa village petitioned the then Minister of Lands calling on him to cancel all the SABL leases granted over their land, including Portion 2465C.
That petition fell on deaf ears.
Four years later, the same committee sent a new petition to Lands Minister Justin Tkatchenko. Their new petition noted that in the period since the previous petition, six of the leaders who had signed ‘have now met their demises during the long wait for cancellation’.
The late Mako Aihi, Dikani Leviri, Dr GG Damena, Doriga Berasi, Omani Rei and Goasa Ita did not survive to see their land freed.