Public policy and land theft Daru Island case


WHERE did the customary landowners of Daru Island go?
This is the question that worries Leslie Masere. He is the leading landowner of Daru Island.
He has visited (or made an effort to) the organs of state to find out the truth, namely the Public Curator, Land Titles Commission, and the State Solicitor.
In July, 2021, Masere pursued the case on behalf of customary landowners of Daru who wanted the correct status of the island.
And, he is comforted, and confident, that in the aftermath of the cancellation or expiry of the 99-year lease in which the Government revoked the land lease titles licences under SABLS (Special Agriculture Business Leases), and amended Incorporated Land Group Act 2018, the stage was set.


Daru Island was being returned to the customary landowners.
The definition of his mission seemed clear, the fact that Masere is the landlord of Daru Island and had title as owner before it was rented or leased to the State who is the lessee or renter. And in terms of the law and jury, he is known by the term landlord, lessor, or owner.
Let us take up the story of the struggle by Masere to exploit the opportunity afforded by the land reform in 2018 for his Hiamo Clan of Daru.
In particular, in this case, as clan chairman, Masere has made representation to organs of State including Land Titles Commission and State Solicitor to support him seek clarity on payment accruing to the landowners, if any, and therefore restorative justice from the State.
This follows a court order relating to an illegal land deal payment of K64 million in contravention of the process on foot to restore financial benefits or otherwise accruing to Hiamo Clan.
The land reform was begun by the Government in 2018. It is irreversible. And, the land question was not negotiable again.
For a period of 99 years, the colonial administration and post-independence governments of PNG placed emphasis on focus on land productivity, and therefore underpin the speedy transformation of the PNG economy. And, to ensure good security for the country through freeing up customary land to allow economic development to take place.
This gave birth to SABL which was justified due to its role to trigger off rural industry and therefore the expansion of to the economy.

Daru Island, aftermath of 2018 land reforms.

Masere’s struggle is to put into context the National Court order issued on the fraudulent K64 million illegal land deal, and to bring to a conclusion the case presented by the Hiamo Clan and customary landowners of Daru (ILG No 5054). It is taken for granted that the role of agriculture in the economy is able to validate SABLs, and therefore push public policy options in the table during the colonial era. Clearly it was justified due to SABLs seen as having a role to trigger off rural industry and therefore the expansion of the economy.

But lately the lessons show a different story. SABLs turned out to be a failure in public policy.
According to Leslie Masere, his fight is to change the official narrative since the SABL lease ended in 2018 in which landowners were taken for a ride. Hiamo Clan has consolidated its case for restorative justice to be served to the clan members.
However, the truth is also there based on the evidence available. Leslie Masere got that right.

SABL – the concept
An SABL is a temporary acquisition of customary land for a certain period of time for the purpose of establishing a plantation or other agriculture business.
It is intended that when the term of an SABL ends, the land will go back to its customary owners. There is no rent or compensation payable for this type of lease and all customary rights in the land, except those, which are specifically reserved, are suspended for the period of the lease.
According to Leslie Masere, before 2018 when land reforms kicked in, SABL already may be a form of customary land theft. Village communities in Papua New Guinea (PNG) are historically, culturally and spiritually connected to their land; 97 per cent of land in PNG is customary land. This means it is communally owned by large tribal groupings and it is impossible to move people easily from one place to another.
Customary land in PNG is used for gardening, hunting and gathering and sourcing building materials and medicines.
In theory, the PNG Constitution protects customary landowners from unjust deprivation of traditional land. In the 1970s the Government introduced a land scheme called Special Purpose Agriculture Business Leases (SABL) with the intention of helping landowner participation in economic activities. This scheme has been abused since 2003 and it has been used to steal over 5 million hectares of customary land.
“Between 2003 and 2011, 5.2 million hectares of customary land (11 per cent of PNG land area) passed into the hands of national and foreign corporate entities for 99 years. This is twice the amount of land ‘grabbed’ by corporate interests across five 5 African countries in a similar period…” (Filer 2011).
The Land Act 1996 governs the administration of all land in PNG. Section 132 prohibits selling or leasing customary land to foreigners.
There are two types of land in PNG: 97 per cent is customary land and 3 per cent is state land. The state has three different methods of acquiring land from customary landholders.
It can acquire customary land by agreement (Section 10), through a lease-lease back process (Section 11 and 102) and by compulsory acquisition (Section 12).
Cause of abuse and public concerns over SABL
There are several reasons why SABL has been abused.
Section 175 of the Land Act states that regulations must be developed for the administrative procedures for granting SABL. This has never been done.
There is also no policy framework developed for SABL. The Department of Lands and Physical Planning (DLPP) has always used informal processes to grant SABL.
There is no legal limit on the size of an SABL land area and the allowed length of a lease is too long. This has resulted in areas of more than 100,000 hectares being taken for up to 99 years.
A Forest Clearance Authority (FCA) is used in SABL areas to allow clearing of vegetation but the clearance is not limited to areas for planting. FCA is issued under the Forestry Act but there are no linking provisions to the Environmental Act so there is no control of environmental impacts.
There is no amalgamated agriculture law that describes the process and regulates large-scale agriculture projects. The Department of Agriculture is not involved in issuing SABLs, despite the Lease being for agriculture purposes.

Commission of Inquiry into SABL (2011) – summary findings.
Widespread abuse, fraud, lack of coordination between government agencies, and failure and incompetence of government officials to ensure compliance, accountability and transparency within SABL process from application stage to registration, processing, approval and granting of the SABL.
Undue political pressure put on government officers by government ministers and other politicians to fast-track SABL applications and issue titles.
Incompetence, failure, inaction and lack of commitment by government officers and agencies to properly and diligently carry out their statutory functions. Legal requirements were deliberately breached and proper processes and procedures were either bypassed or simply ignored.
Consent of landholders were fraudulently obtained, through misrepresentation, for SABL titles to be issued directly to foreign owned companies, thus landholders were not aware of the particular entities or groups granted an SABL over their customary land.
SABLs were sold to foreign companies for the whole or balance of the 99 years, leaving NO residual rights for the landowners. The inquiry found that 58 out of 75 SABLs were for 99 years.
The land lease acquired by the State begun by the colonial administration in 1897 on 99 – year lease lapsed, and all land titles were converted under the amended Incorporated Landowner Group Act 2018.
Daru Island landowners – the case for payment.
In the case of Daru Island, the information on hand is likely to consolidate the case for Hiamo Clan.
NDLPP investigation into the 99-year lease revealed the following:

  • Former proprietor Wyborn Brian James obtained land titles on 99-year lease for 35 hectares on May 28, 1958 which were acquired under an agriculture lease agreement.
  • On May 15, 1989, with the lapse of the 99-year lease the state forfeited and therefore cancelled the land lease licences for the 35 hectares from Wyborn Brian James and his ownership rights to the portion.
  • The agriculture lease agreement of 1958 is now invalid due to the National Government revocation of all SABLS licences in which case all proprietors surrendered any land titles to the Minister for NDLPP, who then converted the land lease and ownership rights to the portion.
  • Customary landowners now have ownership rights to the portion under the amended Incorporated Landowner Group Act of 2018.
  • The expiry of the 99-year lease acquired by the State on April 1,1897 ended the mode of acquisition and the ownership of the portion automatically changed status in favor of the Hiamo Incorporated Landowner Group (ILG No 5054) of Daru.
  • Despite a court order issued in 2018, developers including the Fly River Provincial Government have continued to fraudulently engage in an illegal land deal worth K64 million to siphon off 35 hectares of land with contract of sale and purchase for nine blocks of land for K7,080,200 each making it a total of K64,721, 800.
  • The National Court order issued holds the three parties liable for an illegal land deal to pay all monies due into the National Court Trust Account, and refrain from any further dealings on the land that shows the trail of money and a syndicate operating between the key suspects.

Daru Island, in the aftermath of the expiry of the 99 -year lease, National Government revocation of the land lease titles licences under SABLS, and amended Incorporated Land Group Act 2018, and National Court order issued on the fraudulent K64 million illegal land deal, the case presented by the Himao Customary Landowners of Daru (ILG No 5054) has clearly been consolidated for restorative justice to be served based on evidence available.
Hiamo Clan Chairman Lesley Masere has taken the case of his people to the authorities to concur, and confirm that Himao Customary Landowners of Daru (ILG No 5054) has consolidated its case to be paid based on evidence available.
His struggle to cause the developers, including Fly River Provincial Government, to respond to the court order on foot as to the status of 99 – year lease, has been a long road.
Leslie Masere has a valid point. The issue of administration necessary to commence payment of financial benefits accruing to Hiamo Clan who are customary landowners of Daru (ILG No 5054) held in the National Court Trust Account since the court order issued in 2018, should be managed in order to progress the representation by citizens on issues affecting their livelihood.

  • Bonny Kaiyo is a freelance writer and blogger