Woodlark Island Logging Scam Part 4: Large-scale Fraud?
In February this year, Kulawood Limited submitted an application to clear 30,000 hectares of forest on Woodlark (Muyua) Island. It is the latest in a line of foreign companies that have tried to exploit this valuable resource.
During 2008 plans to clear 70% of the island for oil palm were cancelled after protests and petitions. In 2014 a logging company, Karridale Limited, landed machines on the island with plans to log 17,600 hectares. This prompted concern from international scientists as well as opposition from local people. In 2016 the State finally forfeited three leasehold titles that had been in the hands of an oil palm company. Title was returned to the people of Woodlark Island. The leases covered an area of 60,400 hectares.
Now, Kulawood’s plans are starting to meet similar opposition from concerned islanders and observers; and they have good reason to be worried, as PNGi’s investigation has already revealed the application for a Forest Clearance Authority is littered with critical errors, inconsistencies and falsehoods.
In the first three parts of our report PNGi scrutinised the company making the logging application, and its local partner, Ebony Wood Investments Limited. We have also looked, in depth, at the Department of Agriculture project assessment and approval.
We now turn our attention to the critical issue of landowner consent.
Identification, empowerment and consent
The Constitution recognises the rights of customary landowners to control what happens on their land. Their free, prior and informed consent (FPIC) should be at the heart of any large-scale land use project.
Before consent can be given though there must be a proper process of identification and empowerment; this is ‘a critical first step’ according to the Supreme Court.
But, all to often, the necessary identification and empowerment is overlooked, invalidating any claimed ‘consent’. This leads to what the courts have described as ‘large scale fraud’ committed against landowners by foreign companies acting with State support.
This is how the Supreme Court has described these issues in one case involving a logging company and trespass on customary land:
“What happened here is in fact a sad story that is repeated throughout the country over a long period of time from the colonial administration in the name of opening up wild frontiers for various so called developments and projects… What is happening in most cases is that, developers and the State alike are failing to either deliberately or by inadvertence to first ascertain, then properly organise, empower and deal with the properly identified and confirmed customary land owners. Rather than taking this most important first critical step, the State and the developers are entering customary land and are proceeding with their activities and in so doing, choosing to and are indeed dealing with persons who claim to be landowners when in fact they may not be the true and correct landowners… The State to the extent that it is doing nothing about this practice is encouraging this improper and illegal approach by so called developers which in fact is a large scale fraud committed against the true and correct landowners by the so called developers with the support of the State and in collaboration with persons claiming to be owners when they are not.
Despite many strong court declarations, the issues of the identification, empowerment and consent have been dealt with in a very perfunctory manner in the development of the proposal to clear the forests on Woodlark island. This is evidenced in the FCA application itself, where the issue of landowner consent merits just one paragraph.
While Kulawood Limited states that it will uphold the principle of FPIC and commits to its use in all negotiations and dealings it only details a single ‘Public Hearing’ conducted by DAL officers as evidence of its consultation.
Lets look in more detail at that meeting held on 10 August 2017 and test how it fares against the standards of FPIC.
DAL Public Hearing
As part of its assessment visit to Woodlark island the Department of Agriculture held a public meeting at the Kamadau Community Area to gauge local views.
There was only one meeting held, despite Woodlark island having an estimated population of 9,000 people who, the DAL report notes, “are scattered all over the long island and to get from one place to another is difficult…” [page 6]. Communication on the island is also limited by the absence of electricity and a “low or weak” mobile phone signal.
The minutes of the meeting prepared by DAL run to six pages. The first three pages are taken up with the introductions made by DAL officers and the ‘investor’. Landowner questions and comments are recorded in just 10 short paragraphs.
After the opening remarks and prayer, Mr Brown Gende from DAL was the first to speak. His explanation of the project, the approval process and the DAL assessment covers two pages. It is clear he supports the project and is urging the communities to give their backing. He extols the benefits that will come and does not mention any possible negative impacts; “we want to seek your consent”. [para 4.6]
After DAL, Samson Siguyaru, the ‘investor’ spoke. Siguyaru said he had consulted with government departments “and found out that agriculture is the gateway to harvesting timber”. [para 5.1.2] He also claimed that when the logs from the forest clearance are exported “75% will be benefited by the land owners while 25% will go to the investor” [para 5.1.2].
The 75:25 split described here does not appear to be supported anywhere else in the project documentation.
According to the minutes, eight landowners then spoke. All were male. The eight included one ward chairman, one ward counselor, a ward recorder and one who said he spoke on behalf of his elders. Three were from Lakedoga clan, one from Sinaviva clan and one from Malasi clan. The clan affiliation of two other speakers was not recorded.
Mr Helisen Senta was concerned about the amount of land that would be needed given the “very small” size of the island. Senta was told the entire island was around 130,000 hectares but the farming area available was around 87,000ha which was “still to much”. Just 5,000ha of cocoa could earn around K130 million in one year.
The figures of 130,000ha and 87,000ha are not supported in any other documentation and seem to be inflated. There is nothing presented in the DAL assessment report to support an earnings figure of K130 million.
Mr Sente also inquired about the type of logs that would be exported. He was told “the meeting should concentrate on agriculture rather than logging” as only “once the agriculture matter is settled then logging will be permitted and that is when we can talk about types of logs”. [para 6.1.1]
As logging will cause the most disruption, have the largest impact, and will necessarily precede the agriculture this denial of space to discuss it seems to undermine the whole validity of the meeting as an exercise in assessing consent.
Mr Richard Marari expressed his people’s desire to be included in the project as they had “been left out since independence” and “eventually government services will enter their area which will bring change and improve living standards”. [para 6.1.2]
Mr Chis said he also believed the project would bring government services to neglected parts of the island and gave his full support.
Donald Mali noted the previous failure of attempts at rice farming. Given the lack of tangible development he expressed his “full support of the project”.
It is clear from the minutes that the lack of decent government services on the island was high in people’s concerns.
Martin Natowosi gave an overview of the vegetation on the island and urged everyone to support the project.
Gram Dedi, a ward chairman, spoke of the poor health, education and transport infrastructure and “therefore encouraged the project with full heart”.
Kenneth Loasi believed that agriculture was the only thing that everyone could be involved in, and benefit from, so gave his full support.
Finally, Bosco Lapis spoke and “he asked two sensitive and important questions”:
“The first was, is the land has been marked and has title been given? The second question was, if so did investor apply for the licence to clear the land?” [para 6.7]
According to the minutes, “these two question was not directly answered but was addressed somehow”.
So it would appear a second crucial issue, land tenure, was not directly dealt with in the meeting.
Despite still wanting clarity on his questions Mr Lapis “pledged his undivided support”.
There were no women recorded as speaking at the meeting despite the DAL report noting females make up more than half the population. The DAL team itself was comprised of three males.
The meeting ended with DAL calling for a vote “whether to go for the project or go against the project”, no other options were apparently allowed. All voted for.
As a result the DAL assessment report confidently asserts “the community at large are fully aware of the project and are in full support and urged for the urgency for the project to start” [page 13].
However, the minutes do not record the number of people voting nor the names of those who voted. The role of the people voting is not recorded. The home village or clan of those voting is not recorded. The manner of the vote is not recorded.
Did the vote represent the views of all 9,000 people on the island and was consent being freely given with a proper understanding of the issues and all their implications?
Based on the minutes, as an exercise in determining landowner consent, the meeting was, it is submitted, clearly and fatally flawed.
Awareness and consultation
The meeting conducted by DAL on Woodlark Island sounds somewhat similar to a meeting considered by Justice Gavara-Nanu in a case relating to logging and oil palm under an SABL in East Sepik Province. The judge explained what meaningful awareness and consultation should involve:
There was no awareness conducted by the representatives of the State, … 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.
… 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… which would have permanent and long term effect on their land.
There is no record of any such information and awareness program having be carried out to inform the people of Woodlark on the scale and impacts of the proposed logging, tree planting or the nucleus rubber and cocoa plantations, activities that will clearly have a ‘permanent and long term effect on their land’.
Verification and consent
In the FCA application, Kulawood says the project has been consented to by all the eight major landowning clans – Malasi, Lakeidoga, Sinawia, Kunuta, Nukubai, Nukwasisi, Kumulua and Kulabut.
Attached to the application are fourteen Verification of Ownership and Consent of Landowners forms, each supposedly signed by a clan agent. At least three of the forms are unsigned and undated. Some have other missing information.
The signatures on the forms are dated 10 August 2017. This indicates they were signed on the same day as the DAL public consultation meeting.
There are also 3 sales and purchase agreements attached to the FCA application, each signed on 20 or 21 August 2017. One is signed by three people (and undated);one is signed by forty seven people – but many of the signatures are the same; the other contains no details about the land area and the signatures next to the 48 names are just initials, all apparently added by one or two people.
So in total, 17 forms with the purported signatures of about 110 people but most clearly in the same hand, and in at least four cases either unsigned or with crucial information missing.
Despite these limitations, DAL has issued a ‘Certificate of Compliance’ that states the verification of ownership and consent has been satisfactorily documented.
There is no credible evidence to support the DAL certification of landowner consent or the confident assertion in the FCA application that “the landowners of the project area, their clan leaders, landowner chairman have all supported the project and requested that the project start sooner”.
Instead there is plenty of evidence to suggest the landowners have a very low level of awareness about what is actually proposed for their land and forests.
While it is very probable most if not all the people of Woodlark want better government services and more income earning opportunities that is a far cry from what is necessary to constitute FPIC for a Forest Clearance Authority that encompass the whole island.
Added to this failure to properly identify, empower and seek consent from the customary landowners we can add the inconsistencies, errors, deceits and fundamental flaws already revealed in Part 1, Part 2 and Part 3 of our PNGi investigation.
The Prime Minister and his colleagues have consistently spoken of the need to correct the failings revealed in the SABL Commission of Inquiry and to better protect customary landowners from the loss of their resources.
The Commission of Inquiry reported:
We found numerous instances of incompetence, failure, inaction and lack of commitment by officers of government agencies to properly and diligently carrying out their statutory functions. Legal requirements were deliberately breached and proper processes and procedures were either by-passed or simply ignored. We found a number of agencies to have been were reckless, careless and negligent in the discharge of their statutory functions. [Numapo p236]
The application for an FCA to clear 30,000 hectares of forest on Woodlark island presents clear opportunity for the government to demonstrate that the recklessness, carelessness and negligence of the past has been rejected and that no longer will it allow patently flawed logging applications to be approved.