By TONY POWER
ONE of the most important legislative initiatives since independence is the Land Reform Bill, which is ostensibly designed to empower customary owners to register their properties and enjoy access to the market economy.
There is therefore, great concern that after the presentation of the initial task force report, nothing has been released to the public.
The task force proceeded to draft the legislation even though no Green or White Paper was prepared and presented to the National Executive Council and Parliament.
It is also normal for a White Paper to be made available to the public.
The economic advancement of ordinary Papua New Guineans has suffered for 31 years because of the lack of registration legislation. It is imperative that we get it right this time.
The Land Groups Incorporation Act ended in chaos and a repeat would set the country back for decades.
I have numerous concerns relating to the developing customary land registration legislation proposals and because of this, I have made constructive criticisms and given positive advice and analyses to the task force.
They included:
l Detailed comments on the draft report on customary land registration by the Land Development Task Force (LDTF) published by NRI;
l Detailed proposals for the process of land mobilisation in two steps: registration of land groups (ILG) and sporadic registration of land belonging to those land groups;
l Proposals regarding the necessity for customary land registration to be based at the provincial level, employing some ideas developed from recent experience in Peru and Tanzania; and,
l Comments on early versions of the draft legislation.
Unfortunately, I have not received one word of feedback.
Ms Josepha Kanawi, the former chief of the Land Titles Commission, has informed me that after an initial contribution, she has been nominated as a potential consultant but in reality effectively kept in the dark.
Of particular importance to me is the failure by the “reformers” to clearly define their intentions in the legislation.
This would normally be made clear in a White Paper.
One must gather their intentions by certain actions.
Is the legislation to be a fundamental empowering tool for all land groups (about 70,000 by my calculation) in the country?
Or is the legislation to be driven by the oft-repeated mantra that we need to overcome the “problem” of customary land ownership and free up (remove the landowners) land for (foreign) investment orchestrated from Port Moresby?
All the evidence so far seems to be that the driver is to provide access for the foreign investor.
This is a localised version of the colonial mentality to get land away from the customary owners.
Can one assume that customary land owners are:
l Thoroughly mobilised and incorporated correctly as ILGs and empowered as to what they are becoming involved in, and thus empowered to be reliable business partners for whatever developments are envisaged on the land?
(New Britain Palm Oil Ltd is the only company that has done this part of the job of land mobilisation thoroughly so far with little or no help from DLPP.)
l That the shareholders in the corporate entities nominated by the gazette are in fact the relevant ILG owners of the land?
Or are the corporate entities, other entities “nominated” by the owning ILGs as per S.102 of the Land Act?
What form of consultation resulted in the owners nominating the corporate entity?
One is prompted to ask these questions given the long and arduous road followed assiduously by New Britain Palm Oil Ltd in successfully mobilising a fraction of the abovementioned acreage.
Along the way the landowners developed a lot of business understanding and hopefully will be reliable business partners for the company for the duration of the leases, 25 or 44 years, NOT 99 years.
In the case of the oil palm estates, New Britain Palm Oil Ltd has a sub-lease from the customary owners to whom the land was leased back as intended by the legislation, not a direct lease from the Government to the “nominee” of the land groups.
This is a very significant difference as it takes into consideration the need for land groups to develop business sense and educate their young people as to what business has been undertaken.
What happens in a 99-year lease to a corporate entity scenario?
This type of approach concentrating on big land grabs can be managed by DLPP and is open only to the traditional DLPP malaise of inaction, apart from service to politicians, and malfeasance associated with the political and bureaucratic gatekeepers to foreign investment.
If however, the legislation is intended to serve the tens of thousands of ordinary citizens looking for ways to bring some of their land under the one rule of law and so enter the modern economy to benefit from the capital value of their patrimony, then we have a different agenda altogether.
Access to justice and the rule of law cannot be dispensed from Port Moresby. It must be available locally, therefore in the provinces.
Ordinary people cannot go to Port Moresby to follow up on their applications for land or registration of their group etc.
Just consider the existing demand for land registration by all the urban and peri-urban landowners round the towns of PNG including ribbon development along the main roads.
Just consider all the present settlers on customary land that need to be legalised or relocated to other suitable registered customary land to allow orderly town and city development.
If the legislation is meant to empower the masses of citizens then it cannot possibly be handled by DLPP in any way at all.
Regardless of anything else, elementary school arithmetic would indicate that a poor job being done on 3% of land will not overnight turn into a good job over 97% of the land.
The legislation, the administration, the funding, the training, the monitoring must be designed on a national scale for implementation in the provinces.
It cannot and must not be envisaged as a function to be implemented in Port Moresby.
If this proposition is accepted, and in the absence of a White Paper there is no obvious sign anywhere that it is, then there are huge implications for funding, staff recruitment and training, and monitoring.
The world is living in the digital age and though PNG is presently being denied any sort of reasonable empowerment (pathetic cell phone coverage and service and no affordable internet broadband), the land registration programme must be digitally based from the very beginning.
To my knowledge, the DLPP has being trying at great expense from funders to “grandfather” (i.e convert paper documents to digital copies for a new digital system) their paper morass of land documentation for two decade.
Finding a relevant land file stimulates a cry of “eureka”, but keeping track of it is an art form not mastered by most of the DLPP staff.
Pertinent to the customary land registration is the failure of the implementation of the Land Groups Incorporation Act by DLPP.
To date, the DLPP’s only venture into the customary land domain, has been a tremendous failure with the incorporation of 13,000 Incorporated Land Groups, almost all of which could never in a million years be considered reliable business partners.
Just for information sake, the University of Technology captured about 5,000 of these land groups on a digital data base. The banks would not look at them.
It is absolutely critical that customary land registration is conducted at the provincial level.
In spite of the fact that national politicians have completely gutted any political presence of a provincial government apart from themselves, there is still a provincial administration that can coordinate the operations and provide services to the districts and local level governments, where the ground work for land group and land registration must be done.
Local knowledge is not possessed in Port Moresby. It is necessary and convenient to capture the information in the living data base – the minds of the customary owners. Systems must be developed to capture this information and transform it into a nationally-designed digital database that can represent the owners and the land parcels in a format that can generate instruments that empower the owners to secure their land rights and participate in the modern economy.
These instruments are called fungible instruments as they can be manipulated to capture the capital value hidden in the property.
Banks can relate to these types of instruments such as incorporation certificates, land titles and leases.
Banks at the moment are very slow to develop their understanding of how capitalism can be developed in PNG.
They continue to harp on bad experiences that have resulted from badly-implemented legislation.
They are not looking for the underlying causes of these bad experiences and looking to understand what can be done about this situation by development of legislation and administrative practices that can assist our citizens to become reliable business partners utilising the capital value of their customary land.
Land groups that have leased land to New Britain Palm Oil Ltd possess share portfolios worth hundreds of thousands of kina.
I am not aware of any effort by the banks to provide service to such groups to maximise the added value they enjoy by their dealing with New Britain Palm Oil Ltd.
Is the experience developed by NBPOL being taken on board as a template for the developments round the country now being proposed or in fact signed up?
The land groups that I visited with in Kimbe are wisely using their income as a cash cow to fund community development including a big slice for school fees for every one of their children up to university level.
Just 20% of their income could service a large loan to enable them to invest in new businesses or existing businesses for the future.
The initiative to develop land registration legislation is of the utmost importance.
One must ask why has it not followed the normal practice of development of Green Paper and White Paper to clearly define the intent of the legislation prior to the commissioning of a legal draftsman?
This is the normal practice in a democracy.
l After teaching at the University of PNG in the 1970s, the writer went on to become a consultant to the Office of Village Development and Kutubu Petroleum Development Project. He was also senior researcher at Hernando de Soto’s Institute for Liberty and Democracy in Peru. He has written more than 20 publications from philosophy to development issues with heavy emphasis on land, forestry and clan mobilisation and is currently doing research on the Melanesian land tenure and social organisation in relation to resource mobilisation for sustainable development.