Former Forest Minister a lone wolf or is he being thrown to the dogs?

The PNG Forest Authority claims it has revoked a Timber Permit ‘TP 10-11’, awarding logging rights over the Vanimo Timber Rights Purchase Blocks 3, 4 and 5, on the grounds that it was unlawfully issued by a former Forest Minister.

According to the Forest Authority, ‘TP 10-11’ was issued by Solan Mirisim, the current Minister for Defence, in contravention of a court order declaring that the Vanimo Timber Rights Purchase agreement expired in March 2008 and is no longer of any effect.

First elected to Parliament in 2017, Solan Mirisim served as Minister for Forests from June 2019 until December 2020. He is the current Minister for Defence.

In a letter to the Permit holder, Nerike Issakah International Exports Limited, the Forest Authority’s Managing Director, Tunou Sabuin, says ‘it has come to the attention of PNG Forest Authority that the former Minister for Forests Hon. Solan Mirisim has issued timber permit TP10-11 over Vanimo TRP Blocks 3,4 & 5’.

‘Unfortunately’, he continues, ‘such a permit would have no legal effect as the National Court has already declared… that Vanimo TRP Blocks 3, 4 & 5 expired on 21 March, 2008’.

Tunou goes on to state any Timber Permit or Licence issued by the former Minister is void and the PNG Forest Authority will be ‘immediately cease all dealings involving your company’.

The letter clearly infers that the former Forest Minister was acting as a lone wolf in issuing the Timber Permit without the knowledge or approval of the PNGFA or its officers.

If true, this would be unlawful and a complete breach of proper process under the Forestry Act, but it is something that Solan Mirisim strenuously denies.

The Minister has told PNGi that the approval of the Vanimo timber permit went through a ‘long process’ and a ‘normal process’ with no short-cuts. He says the issuing of the Permit was cleared by Tunou Sabuin himself, as Managing Director, before being passed to him as the Minister and ‘the last person to sign’.

The Forestry Act clearly states that the Forest Minister can only issue a Timber Permit on the advice of the National Forest Board and the NFB can only make a recommendation to the Minister based on the advice it receives from the PNGFA.

If these legal steps were not followed in the issuing of the Timber Permit to Nerike Issakah, that would be sufficient grounds for the permit to be rendered legally void and of no effect.

Yet, the PNGFA in its letter, does not state that the proper legal process was not followed. It relies instead on an earlier court judgement as the basis for declaring the TP void.

Did the Minister act as alone wolf, with no input from the PNG Forest Authority or advice from the National Forest Board when he issued the Timber Permit to Nerike Issakah? Or is the PNGFA now seeking to put the blame on the former Minister for something in which its own officers were involved?

Tunou Sabuin did not respond to a request for comment, but his department has received some stinging criticism in the courts. This is from Justice Kandakasi, in another legal case relating to logging in the Vanimo TRP:

One of the important tasks or duty of the National Forest Authority, is to ensure that the requirements of the Act are met. This includes the power and the duty to ensure that the terms and conditions on which a permit or license issued to a logging company or individual are met. It is well know that, in most of the logging operations there is a development component which requires construction of roads, bridges, schools, hospitals and other infrastructure all aimed at bringing about much needed change and development that should last for a long time and well past the logging operations. Unfortunately, whilst sitting in court for almost 15 years now I get constantly reminded that the so called developers have failed to deliver on their obligations and the NFA has simply done nothing about causing the so called developers to deliver on their obligations.

The PNG Forest Authority is not just guilty of failing to enforce logging companies’ obligations to local landowners, a series of court cases shows it is also a serial offender when it comes to unlawfully authorising logging operations. The three legal cases reviewed below show that the National Forest Authority has a history of issuing timber permits allowing logging in areas where its agreement with local landowners has already expired, and it does not hold any timber rights.

Such a history does not prove that the PNGFA was complicit in regards to the recent Vanimo timber permit. Nor does it necessarily exonerate the Minister. But it does show the PNGFA has plenty of mud on its hands too.

Extension and timber permit invalid

The legal case referred to in the PNGFA letter to Nerike Issakah, informing the company its timber permit is void, was initiated by three customary landowners on behalf of their clans. They sued the PNG Forest Authority and Malaysian logging company, Vanimo Forest Products Limited, over the decision to allow logging on their customary land under an extension to a Timber Rights Purchase agreement originally signed in 1968.

A ship loads logs in Vanimo, West Sepik Province. Image: David Fedele.

The three plaintiffs were from Blocks 3, 4 and 5 of the Vanimo timber project area. In 1968, the State entered into a forty-year agreement with the local landowners to acquire the logging rights to timber in Blocks 1-5.

Under the Timber Rights Purchase agreement, the State, through the PNG Forest Authority, was able to issue various timber permits to Vanimo Forest Products, allowing the company to harvest and export logs. The last such permit, TP10-08, was issued in 1991 and was to last for 20-years, expiring in October 2011.

The original Timber Rights Purchase agreement with the landowners expired on 21 March 2008. The following month, on 21 April 2008, a purported Timber Rights Purchase ‘extension agreement’ was made covering Blocks 3, 4 and 5.

The landowners challenged the validity of that extension. In a decision handed down in December 2011, the National Court agreed the extension agreement was invalid.

The court noted that at the date of the supposed extension, 21 April 2008, the original Timber Rights Purchase agreement had already expired. As a result,  said the court, no valid agreement existed that could be extended. The court also found the extension document was flawed and invalid as it did not state the period of the extension.

As there was no valid extension agreement, the State had no ongoing rights to the timber beyond 21 March 2008.  Therefore, said the court, any logging operations and any Timber Permit existing after that date had no legal basis and were invalid, illegal and unlawful.

Log exports from the Vanimo TRP ended shortly after the December 2011 court decision.

Official log export records show that shortly after the court decision, which invalidated the logging permit held by Vanimo Forest Products, log exports from the area did indeed cease.

Deja vu in East New Britain

The PNG Forest Authority it seems is not very good at learning its lesson or following the law, even when it is spelled out in court judgements.

In the Vanimo Timber Rights Purchase case noted above, the court made it very clear that once a Timber Rights Purchase agreement has expired then it no longer exists and cannot be extended or otherwise resurrected. The court also made clear any timber permits or logging operations that extend beyond the life of a Timber Rights Purchase agreement are also illegal and void.

The Vanimo case was concluded in 2011. The PNG Forest Authority was the losing defendant and had to pick up the costs of the whole legal proceedings.

Yet despite that court decision, the PNG Forest Authority continued to hand out Timber Permit extensions that allow logging in expired Timber Rights Purchase project areas.

One such example occurred in 2017, in the Open Bay area in East New Britain province.

Post Courier headline in August 2019 announces the court decision.

According to court records, 7 Timber Rights Purchase agreements were signed by landowners in the Open Bay area in 1967 and 1968. Each agreement was for a period of 40 years. The seven agreements were known collectively as the Open Bay Consolidated TRP project.

Two timber permits, originally TP 15-50 and then later TP 15-53, were issued to a logging company, Open Bay Timber Limited, over the area covered by the Timber Rights Purchase agreements. Those Timber Rights Purchase agreements expired in 2007 and 2008 and the timber rights then reverted back to the landowners.

These facts were not disputed by the PNG Forestry Authority. Yet in 2017 the Forest Authority purported to extend the two timber permits and grant them to another logging company, Vanimo Jaya Limited.

The Dengenge Incorporated Land Group successfully challenged the legality of the timber permits in the National Court.

The court found that when the 7 Timber Rights Purchase agreements expired in 2007 and 2008, they ceased to exist and the timber rights reverted back to the landowners. Once that happened it was impossible for anyone to later try and extend the agreements and indeed, it was agreed that no extensions had ever been sought or granted.

As there was no Timber Rights Purchase agreement in effect after 2008, the court also found that the two timber permits were no longer valid and had ceased to exist at that time.

As the PNG Forest Authority no longer held any rights to the timber and as the timber permits had already expired and because the applicant for the permit extension was not the original permit holder, the court found the extension of the Timber Permits by the PNG Forest Authority in 2017 was done in breach of the Forestry Act and the permits were null and void.

The court also found the PNG Forest Authority had breached Section 46 of the Forestry Act. This section requires that the rights of the customary owners of a forest resource be fully recognized and respected in all transactions affecting the resource. By failing to obtain the consent of the landowners before it extended the two timber permits the PNG Forest Authority breached Section 46.

Yet again, the court ordered the PNG Forest Authority, together with Vanimo Jaya Limited, pay the landowners costs of the court case.

Yet another unlawful extension

The unlawful extension of the two timber permits for Open Bay Timber Rights Purchase project in August 2017 was not an isolated incident that year.

Four months earlier, in April 2017, the PNG Forest Authority also unlawfully extended the timber permit for Block 6 of the Vanimo Timber Rights Purchase project.

The original Timber Rights Purchase agreement for Vanimo Block 6 was signed in February 1967 and was for a term of 40 years. In 1991, the PNG Forest Authority issued a timber permit, TP 10-8, to Vanimo Forest Products Limited allowing it to harvest and sell logs for a period of 20 years.

Logs en route to the Vanimo Forest Products log pond. Photo: Chicago Tribune News Service

In February 2007, the original Timber Rights Purchase agreement expired and was not extended. In October 2011, the Timber permit also expired. It was not extended until  April 2017 when the PNG Forest Authority sort to grant to Vanimo Forest Products a further term of five years.

The landowners of Block 6 did not support the PNG Forest Authority’s decision. They sought a judicial review, claiming that the extension was granted in breach of the Forestry Act.

The National Court agreed. The court found the extension had been granted without the Forest Board and the Minister first receiving a mandatory recommendation from the local Provincial Forest Management Committee. The court also found that when the timber permit was extended there was no current or valid Timber Rights Purchase agreement giving the PNG Forest Authority the power to grant harvesting rights.  In the words of Justice Makail, ‘to make matters worse for the defence, the Timber Permit also expired on 31st October 2011’. There was therefore no valid timber permit in existence when the extension was granted in 2017.

In the circumstances, the decision by the First Defendant to extend the Timber Permit almost 6 years after the expiry of the Timber Permit is totally unreasonable and absurd.”

The court declared that the extension of timber permit was unlawful, illegal, null and void and, as in previous cases, ordered the Defendants pay all costs of the proceedings.

A career criminal

A career criminal is a repeat or habitual offender, someone who has committed many crimes throughout their life.

A recidivist is a convicted criminal who goes on to commit more crimes; someone who falls back into bad habits even after being held to account for past wrongdoing.

Arguably both terms can be applied to the PNG Forest Authority. This is not an exaggeration, given the judgements cited above point towards actions that contravene s92 of the Criminal Code.

In 2011, the National Court found the PNG Forest Authority guilty of unlawfully extending a timber permit when the underlying Timber Rights Purchase agreements had already expired.

The courts dismissed every legal argument raised by the Forest Authority’s lawyers and ordered costs against it, costs that were ultimately paid by ordinary tax payers.

Yet, in 2017, the PNG Forest Authority went on to repeat the same abuse of office, not just once but twice. It extended both the Timber Permit for Vanimo Block 6 in West Sepik Province and two Timber Permits for Open Bay in East New Britain, long after the underlying Timber Rights Purchase agreements and the original timber permits had expired.

In both cases, the National Court again found the PNG Forest Authority acted unlawfully and the timber permits were declared null and void. Again, all legal costs were ordered to be paid by the Authority.

As we saw at the very beginning, the PNG Forest Authority is currently seeking to lay the blame for yet another unlawful timber permit issued in respect of an expired Timber Rights Purchase agreement, at the feet of the ex-Forest Minister Solan Mirisim.

The Minister is facing his own legal challenges, a Leadership Tribunal having recently been appointed to consider charges including failing to declare income, abuse of office, and failure to lodge financial statements and corporate income tax. 

The Minister has though told PNGi, that in respect of the Vanimo timber permit, he is not at fault. He says the permit application went through all the normal processes and was approved by both the PNG Forest Authority and the National Forest Board before it ended up on his desk for final sign off.

Where the fault ultimately lies might never be determined, but it is sobering to note that in 2020, almost 50% of PNG’s log exports came from Timber Rights Purchase areas which were originally established prior to Independence. How many of those TRP agreements and timber permits have been similarly unlawfully extended is not known.

A graph from the SGS Log Export Monitoring Report for 2020, showing 47% of log exports were from areas harvested under a Timber Permit.

What is clear though is that the PNG Forest Authority is manifestly incapable of properly administering the forest industry, it is rogue body that, like the logging industry itself, needs to be shut down.