The Government must act now to rectify the situation which brought about the deaths of young people of Porebada village, writes PETER DONIGI
IN December 2007, I presented my Donigi Plan for registering customary land to the secretary for lands and physical planning and the divisional heads of his department.
The meeting was organised by the department’s legal services chief.
The power point presentation went well and all attendees appreciated the intricacies of the plan and supported its implementation.
I developed the Donigi Plan in consultation with the late Lohia Hitolo and members of Elevala, Tanobada, Kuriu, Araira, Tatana and Baruni villages between October and December 2007.
Lohia was instrumental in talking to the people of these six villages.
He brought the leaders together and facilitated an understanding between the members of the various clans.
It was not all plain sailing.
Tough words were spoken and at one stage, fists flew.
Eventually, the people got together and agreed on the process to move forward – that was the beginning of the Donigi Plan.
By January 2008, we had developed our first project – the Port Moresby Harbour port project which comprised 29 clans from those six villages.
Lohia and I presented the project to the Deputy Prime Minister who at that time supported it.
Since then we have been waiting for the title to be issued under the lease and leaseback land registration system, created by Section 11 and 102 of the Land Act 1996.
The Donigi Plan is consistent with these laws.
When other villages heard about the Plan they asked Lohia to explain it to them.
He went to the Roku, Porebada and Boera villages in Central province.
He also talked to the people of Kirakira and Pari villages.
He brought the clan leaders from these villages to speak with me.
We discussed the Christian virtues of the Plan as well as customary law issues.
In all our meetings, I said I was not interested in discussing any project with them if they, as leaders, intended to take more than one share in the capital of their company.
The starting point in the Donigi Plan is not who “owns” this portion of land but which “clan has a right to use” this land.
These two questions define the difference between the Government’s approach (which is the former) and the Donigi Plan approach (which is the later).
There exists a fundamental difference – philosophically, historically, legally and spiritually.
The two plans cannot co-exist.
The government plan causes a division of the clan and promotes the divide-and-rule tactics historically used by colonialists worldwide, whilst the Donigi Plan unites the clan members and all users of the land and is consistent with customary law.
So the Deputy Prime Minister and the secretary for lands who refuses arbitrarily to implement the Donigi Plan have failed substantially and are in breach of their leadership obligations which I shall hereafter set out.
The primary question is whether the Donigi Plan is legal and I say it is because it complies with Section 11 and 102 of the Land Act.
The two sections deal with the lease and leaseback system. This is not new.
Many lease and leaseback titles already issued under these provisions.
The important factor is that the land rights owners have a right to nominate which entity or person to which the lands minister is to grant
the State lease.
The second question is whether the minister has the power to refuse to consider the application by the land rights-holders to lease their land to the State under Section 11 of the Land Act.
The third question is whether the minister has power to refuse to grant or issue a State lease to the land rightsholders nominee under Section 102 of the Act.
Both the second and third questions have to be dealt with together as they both involve the exercise of a discretionary power of the minister.
The minister has discretionary powers under Section 11 and 102 but does he have a free hand or freedom to do as he pleases?
There are certain rules which have been developed over many centuries by the courts which define how the minister may exercise his discretionary powers.
These rules are part of our country’s legal system and are recognised by specific sections in our Constitution.
These are the rules known generally as the rules of natural justice, the minimum requirement of which is that the minister must not act arbitrarily.
By failing to provide reasons and failing to act on the applications lodged by various applicants under the Donigi Plan to register customary land in Port Moresby for over a year and in some cases two years, the minister, with respect, has acted arbitrarily.
In doing so, the minister and the secretary for lands have demeaned their public office contrary to Section 27 of the Constitution.
Their arbitrary refusal to recognise the Donigi Plan is therefore a leadership offence.
In my previous article in this column, I argued that the Incorporated Land Groups (ILGs) are unconstitutional.
This leaves the Donigi Plan for registering customary land as the only legitimate and constitutional system available to Papua New Guineans for the registration of their land.
The steadfast decision and refusal of the minister to recognise and give effect to the Donigi Plan is an arbitrary act and in breach of the constitutional and ministerial responsibilities attached to the office of the Ministry of Lands and Physical Planning.
The minister’s steadfast refusal to recognise the Donigi Plan has contributed to the deaths of the young people of Porebada Village.
He must now act to rectify the situation.
Coffin money alone is not sufficient.
A possible compromise is for the minister and the Government to officially recognise Apau Besena Company Ltd (ABC) as a legitimate umbrella company for the people of Porebada, Boera, Papa and Rearea.
There are no political overtones in respect to this company.
Five clans from Boera village, eight from Rearea village and 18 clans from Porebada have so far applied to join ABC under the Donigi Plan for registering customary land.
The ball is now squarely in the minister’s court and he must call a conference between the representatives of the litigants in respect to Portions 2457 and 2458, including Esso Petroleum Ltd, with a view to settling legal proceedings concerning that land as soon as possible.
ABC and its beneficiaries are prepared to drag the case of Portions 2457 and 2458 out for as long as it takes.
I do know if Esso and its partners are prepared for the same.
The people are waiting to hear from the minister.
* Peter Donigi is a lawyer and presently consultant to a legal firm in Port Moresby. He has taught at the University of PNG and overseas.