Commission of Inquiry into Special Agriculture and Business Leases: Report of Nicholas Mirou [Part 2]

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    Part 2 of the Final Report of Commissioner Nicholas Mirou

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  • 1. COI Inquiry File No 25 for Special Purpose Agricultural and Business Lease over Portion 885C Volume 17 Folio 01 Milinch: Lavongai New Ireland Province in the name of Tabut Limited. 1.1 In accordance with the powers given to the Commissioners pursuant to section 7 of the Act, the Commissioners have summoned numerous witnesses to produce documents and be further examined on oath or affirmation. 1.2 Witnesses were called from the six government agencies involved in the issuance and operation of the Tabut Limited SABL. These were: 1.2.1 Department of New Ireland Province, (DNIP) 1.2.2 Department of Lands and Physical Planning, (DLPP) 1.2.3 Department of Provincial Affairs and Local Level Government, (DPALLG) 1.2.4 Department of Agriculture and Livestock, (DAL) 1.2.5 Department of Environment and Conservation, (DEC) 1.2.6 PNG Forest Authority (PNGForest Authority)

    Witnesses Statement and Summonses 1.3 The names of the persons who have been summoned to appear and who have in fact appeared in the public hearings are set out in the schedule below.

    No Name and Position Pages Day Date 1 Jephat Sipmaul, Village Court Magistrate & Landowner (Moloi Numo Clan), Lopas Village, West Lavongai Electorate 29-35 4 27/10/11-SABL 39 Mirou 2 Isaiah Tamti MBE, Chairman Noipuas Primary School, Noipuas Village, New Hanover 35-38 4 27/10/11-SABL 39 Mirou

    3 John Sek, Landowner, Correctional Services Officer, Kulikatan Land Group, Anekunaman Village, Tabut, NH 2-16 5 28/10/11-SABL 40 Mirou 4 Mr Pedi Anis, Landowner, 8-54

    03/11/11-SABL 33 Mirou

    Umbukul Village, Chairman

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  • of Tutuman Development

    Ltd 2-14

    04/11/11-SABL 34 Mirou

    &21-29

    5 Mr Miskus Mareliu

    Corporate Lawyer &Secretary, TDL Landowner, Umbukul,- Secretary (Umbukul Ltd & Tabut Ltd) 29-67

    04/10/11-SABL Mirou 6 Mr Anthony Luben, Unattached Public Servant & Former Deputy Secretary Lands Services 2002- 2008, DLPP 10-18 – 05/01/12-SABL 68 MIirou (WAIGANI) 7 Mr Pepi Kimas, Former Secretary, DLPP

    8 Mr Lazarus Malesa, Customary Leases Lands Officer, DLPP 6-15

    23/01/2012 SABL 79-Mirou (Waigani)

    2. Parties represented by counsel 2.1. Section 8 of the Act relates to the appearance of counsel before the Commission on behalf of interested parties. It provides that: “Subject to Section 2(5), a person who satisfies the Commission that he has a bona fide interest in the subject matter of an inquiry under this Act, and any other person by leave of the Commission, may attend the inquiry in person or may be represented by counsel.”

    The following were granted leave to be represented by counsel

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  • 3. Exhibits and documents 3.1 There were nine (9) documents tendered as evidence before the Commission at the public hearings. A list of the Exhibits is shown below.

    No Item Interested Party Date received Exhibit Number 1 Statement of Jephat Sipmaul C.O.I 27/10/11 TL “1” 2 Statement of Isaiah Tamti, MBE C.O.I 27/10/11 TL “2” 3 Statement of John Sek C.O.I 28/10/11 TL “3” 4 Lease/Lease Back Agreement (through Mr Sek) C.O.I 28/10/11 TL “4” 5 Schedule Of Owners, Status And Rights To The Land From Umbukul C.O.I 23/01/12 LPM1 – 6 LIR Report For Umbukul Prepared By Mr Lazarus Paul Malesa C.O.I 23/01/12 LPM2 7 Letter Dated 5th May 2006 From Provincial Lands Manager, Mr M Banovo, New Ireland Province Notice Of Direct Grant C.O.I 23/01/12 LMP3 8

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  • Letter By Mr Robinson Sirambat, Provincial Administrator To The Secretary, Department Of Lands, Dated 19 November 2007, Revocation Of Rakubana Development Propriety Limited, Tabut, Umbukul And Central New Hanover As Registered Entity C.O.I 23/01/12 LMP4

    9 Appendix “G” – Field Trip Report By Mr Lazarus Paul Malesa C.O.I 23/01/12 CE9

    4. Timeline of events of note surrounding Tabut Limited SABL Title 4.1. The timeline showing important events concerning the SABL is shown below in chronological order of their happening:

    No Milestone Dated of Completion/G rant/Issue Execution Proponent/Applicant Respondent Entity/Respondent 1 Incorporation of Tutuman Development Limited (TDL) 2 December 1999 Tutuman Development Ltd TDL/Tabut Ltd 2 Incorporation of Tutuman Integrated Products Limited 30 August 2007 TDL TDL/Tabut Ltd 3 Land Investigation Report (Incomplete) ? May 2007 Tabut Limited Tabut/State 4 Survey Plan of SABL Portion 885C (Expired Mamirum TRP) 16 August 2007 Tabut Ltd/DLPP Tabut/TDL 5

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  • Instrument of Lease/Lease Agreement 24th September 2007 (Minister not sign the Agreement) Tabut Ltd/State Tabut Limited 6 Notice Under Section 11 (Signed by Pepi Kimas) 10th October 2007 State/TL TL 7 Notice of Direct Grant (s102)-Signed by Pepi Kimas 16 October 2007 State/TL TL 8 Gazettal Notice G161 on SABL title 17th October, TL TL

    for Portion 885C 2007

    9 SABL Lease to TABUT Limited 29th October 2007 Tabut Tabut/TDL 10 Request by TDL to DLPP for Cancelation of Sub- lease Agreement with TL/Umbukul/Central New Hanover (Letter by Mr Miskus Mareleu, Company Lawyer) 29 September 2009 TDL/State TDL 11 Agricultural Sublease Agreement between TDL and TL (Stamp Duty Endorsement)-99 years 29 September 2009 TDL/TL/State TDL/TL

    FINDINGS 5.2. The findings follow the chronology of table of notable events above surrounding the SABL

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  • lease title held by Tabut Limited.

    6. Tabut Limited SABL 6.1. A Notice of Direct Grant under Section 102 of the Land Act was made in the National Gazette No. G161 dated 17th October 2007 for Portion 885CLavonagi. The land is described as Mamirum.The term of the lease was for ninety-nine (99) years. A Special Agricultural and Business Lease was registered and issued on 16th October 2007 by the Department of Lands and Physical Planning to the holder Tabut LimitedSABL(TL). Mr Pepi Kimas OL, signed as delegate of the Minister for Lands. The detail of the SABL is shown below:

    Legal Description Portion 885C Registered Survey Plan Catalogue No 23/467 SABL Holder Tabut Limited Date of Registration of Lease 16th October 2007 Period of Lease Ninety-nine (99) years Land area of lease 11, 864.00 hectares

    7. LOCATION OF SABL 7.1. Located about 70 kms north west Kavieng town the lease commences at the mouth of Neisung river and runs in a southerly direction for 11.6 kms then turns east for a further 6.3 kms until reaches the Nivau river. From there it turns north easterly and goes on for 3 kms until it reaches the mouth of the Min River. 8. IPA COMPANIES REGISTRY RECORDS 8.1 According to the IPA Extracts dated 21st September 2011, Tabut Development Limited was incorporated on 4th October 2007 and is currently registered. The Company Number is 1-60998. 8.2 The issued ordinary shares of the company comprise 10 listed shareholders holding 1 ordinary share in TDL namely Obed Kakmalisa, John Lapaken, Lapanrut Makius, Eliap Malpo, Passingan Kasup Patrick, Reuben Peni, Allan Samson, Isaih Tanglik, and Robin Ulawai. The shareholders address is Section 10 Allotment 6 Anir Street, Kavieng, NIP which is the principal place of business. 8.3 The seven (7) Directors are Passingan Kasup Patrick, Reuben Peni, Eliap Malpo, Obed Kakmalisa, Lapankan, Boski Martin and Lapanrut Makius 8.4 The Secretary to TDL are Elizabeth Melun and Miskus Maraleu.

    9. Landowner’s objections to the ILG Registration and SABL Portion 884C Project 9.1. Landowners openly expressed their anger over what they termed as lack of awareness and fraudulent processing of the ILG registration process including the inclusion of their land within the SABL Project area. 9.2. Two witnesses gave evidence that basically covered the objections raised by the landowners of Portions 885C. The Evidence of Jephat Sipmaul 9.3. Mr Jephat Sipmaul of Lopas village, West Lavongai village and Mr Isaiah Tamti, MBE, from Noipuas village, Chairman of Noipuas Primary School and from the Moloi Numa clan confirmed to the inquiry that there was lack of consultation, knowledge and proper awareness conducted by

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  • DLPP, DEC, DAL and PNG Forest Authority at the four (1) main villages that make up Tabut LLG. They were not even aware of Mr Malesa?s land investigation and were not consulted. 9.4 Mr Tamti also told the inquiry that the clans within Tabut did not hold a general meeting to appoint nor authorize Mr Obed Kakmalisa to be their clan leader, Shareholder and Director of Tabut Ltd. 9.5. The main villages of Tabut demanded that SABL Portion 885C be revoked and proper land mobilisation and awareness carried out for their benefit. The Evidence of John Sek 9.6 Mr John Sek, Clan Leader from Anekunman village, Kulikatan Land Group, Tabut.The C.O.I sets out extract of his evidence on the movement of machinery onto his village at Tabut, “On 19 March 2006, Tutuman Development Limited landed its machineries at the beachfront of Tabut village. People were caught surprised and half of the village were forced to vacate their houses and moved inland. It was saddening that they had to sleep in makeshift houses at their garden sites until proper shelters were built. Until to date, no one of those affected was built a house as promised by Tutumang Development Limited. Tabut village was

    not an approved landing site for TDL to land its machineries. The FCA granted to TDL was for a registered area within the Mamirum TRP area known as Mamirum Plantation, portion 644 and 6448. Therefore, the approved landing site was Mamirum Harbor. After setting up of the camp site, a log pond was to have been constructed at the spot where the people vacated their homes. The landowners sought a court order and prevented the completion of the log pond. This was too late as damage was already done. This action resulted in a few local boys been locked up at the Kavieng police cell….. …The Company then has to construct a road right around to the original landing site. In the process of the road construction trees were felled and logs were scaled for shipment. This was when the formation of ILGs came into play as the landowners were arguing as to whom the royalties be paid to. This was done by clients of the company who already knew which clans have big volumes of timber in their land. The operations extended to areas beyond the boundaries of the originally approved area. I personally witnessed some instances when landowners confronted the camp manager who at that time was Daniel Hii for trespassing on their customary land and harvesting timber. I have always wondered how this could happen when there was a forestry officer on the ground supervising the project and a company employing two senior former foresters who should have known better. Mr Commissioner, it is not written here, but to my knowledge the registered FCA was granted to was – the chairman of the PMFC (Marius Soiat) had an interest over that area at that time. …. After the granting of the SABL for Tabut Limited on the 16th day of October 2007, to date you could hardly see a plantation of cocoa, coconut nor any reforestation. In anyone?s good thinking mind, I think the acquiring of the SABLs for the three portions of land on New Hanover was only for the interest of harvesting timber. When TDL left Tabut Limited for Central New Hanover, all the promises to the people were never fulfilled. All was left behind were rotten logs rotting over in the bushes, spilled oil on the surface of the

    ground and damaged water sources. Sir, it is not written but on behalf of my people I call upon the Commission of Inquiry within its Term of Reference, that those who are involved in this fraudulent dealings be brought to justice so that justice can be done to the people of New Hanover. .” 9.7. The TOR requires this Commission to inquire into the behaviour of foreign logging companies and the total disregard of environmental concerns, the customary rights of the people basically supported by very eminent Papua New Guineans. 9.8. Mr Sek also confirmed the following;

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  • * Landowners were accommodated at Kavieng Hotel in 2007 to meet Mr Malesa on the Land Investigation. He was surprised at his exclusion since he was considered as clan leader for Tabut. * Approached by Mr Miskus Maraleu to sign a form at Tutuman Office and he signed without knowing fully well what was the purpose of signing the consent form. * Environmental damage to ecosystem, the destruction of mangrove tree, removal of betel nut and coconut trees, total disregard of the sacred sites, and pollution of the waterways and the only creek supplying water to the village was dug up and had since dried up. * The movement of machinery was to construct a 12 km road inland through forest around the Three Islands Harbour to Meteai Log Pound on Central New Hanover for the purpose of logging. 9.9 The evidence of the landowners are genuine and confirms that the land investigation process undertaken by the DLPP lacked proper management and oversight on the part of the Land Investigation team. The C.O.I request that appropriate attention be made to the landowners concerns over prosecution of companies (foreign and national) for breaching laws of PNG

    10. Department of New Ireland/New Ireland Provincial Administration 10.1 The Provincial Lands and Physical Planning Office, NIPA was not involved in the Land Investigation and ILG process on the island of New Hanover and Namatanai. 10.2 The C.O.I notes that Mr Lazarus Malesa was directed by Mr Anthony Luben, then Deputy Secretary on request by Tutuman Development Limited to assist with the ILG registration and the LIR process. It became obvious that when Mr Malesa?s trip was fully funded and paid by Tutuman, that he saw no need to make any contact with his provincial counterpart to assist in the land investigation on the island and at Namatanai 10.3 The lack of protocol on the part of DLPP resulted in a letter written by Mr Robinson Sirambat, Provincial Administrator to Secretary, DLPP dated 19 November 2007 seeking to revoke all the SABLs in the province. This was on the premise that the Provincial Lands Office headed by Mr Banovo was ignored and that no direction was issued for their involvement as the lead agency. The letter in part reads, “It is sad to note that your Lands Officer, Mr Lazarus Malesa, failed to consult my Lands Manager as a matter of protocol when he visited the province to conduct LIRs on Mamirum, Central New Hanover, Umbukul and Danfu.” 10.4 The same issue was raised by the current Manager Mr Mark Waine in the Cassava Etagon Holdings SABL hearings. This was refuted by Mr Malesa who said that he was invited to be part of the team on the land mobilization for Kaut SABL. 10.5 There was a lack of coordination between DLPP and the Office of the Provincial Administrator through the Provincial Division of Lands and Physical Planning for the land investigation to be conducted. This is one of the many trends common to the way the LIR were conducted by DLPP without any consultation with the Provincial Administration involvement.

    11. DEPARTMENT OF LANDS AND PHYSICAL PLANNING 11.1 The evidence of Mr Malesa as the Lands Officer conducting the Land Investigation and Report on Portion 885C is applicable to Portion 885C (Refer to Common Witnesses) In summary, the C.O.I has perused the Land Investigation Report prepared by Mr Malesa in collaboration with Mr Maraleuof Tutuman Development Limited. Land Investigation Process & Report 11.2. No Tender Form/Application was sighted and we doubt whether any such application was submitted by the Executives of the Tabut Limited to DLPP to verify the application in respect of existing State Leases. No Land Instruction Number was issued to authorize Provincial Lands Office at NIPA to conduct the land investigation and ILG social mapping awareness and registration. 11.3. The pertinent details as indicated from all the LIRs inspected generally indicate that it was rushed and did not fully capture the important aspects of majority consent of landowners for inclusion in the report. We also note that Mr Malesa travelled from village to village and at times conducted his awareness at night amongst far less than 10 people, which was not the best

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  • scenario to conduct the land investigation. He was also reported to have conducted his land awareness with selected landowners at Kavieng Hotel and not on site. 11.4. LIR was not completed with the following details either missing or left as blank * Lack or no names of female clan leaders because it is a matrilineal society which casts a lot of doubt on the Declaration of Custom in relation to Land Tenure. * The Declaration as to Custom in relation to Land Tenure consisted of agents names as indicated in the report * Certificate as to Land Boundary is flawed because Mr Malesa was constantly travelling with his companions. * Valuer General?s Requirements is incomplete and blank * A person named Miskus Maraleu appears in forms attached to LIRs called „Schedule of owners, status and rights to the land?. Representatives for the Ahi Vonge clan are Miskus Maraleu, Mageret

    Maraleu, Mauna Maraleu, Miskus Juniour Maraleu, Malonie Maraleu, Majorie Maraleu and Melchicedek Maraleu 11.5. The Recommendation as to Alienability is not signed by the Provincial Administrator and blank. This document will serve the basis for the verification and processing of the lease/lease back agreement. It is crucial to the SABL process and the lack of it renders the registration and issuance of the SABL title as null and void. Instrument of Lease/Lease Back Agreement 11.6 The lease/lease back Agreement was executed between the State and the Agents on behalf of the landowners on 24th September 2007. The Minister for Lands and Physical Planning did not sign the Instrument ratifying the requisite consent under section 11 of the Land Act. This is another major flaw in the process leading to issuance of Direct Grant and registration of title pursuant to section 102 of the Land Act. Mr Martin Banovo, Manager Lands, NIPA and Lazarus Malesa, Customary Lands Officer witnessed the agreement.

    12. AGRICULTURE SUB LEASE AGREEMENT

    12.1 Agriculture Sub Lease agreement signed between Ruben Peni Chairman of Tabut, Pelick Isaiah and Passingan Kasup Ruik Committee members of Tabut on the one part and Steven Hii as as as Managing director of Tutuman on the other. The agreement was witnessed by Miskus Maraleu as tenant or lawyer for tenant. 12.2. TL agreed to lease to Tutuman for 40 years Agriculture lease at an Annual rent set at K10, 000 per annum. The Commission?s inquiry into other SABLs for example Lolokoru Estate SABL in West New Britain Province, New Britain Palm Oil Limited pay K50,000 per year for harvest of oil palm fruit on only 2,000 hectare of land. This is great disparity to the amount paid to Tabut Limited. TDL should review the rent paid at the current market value and increase the rental amount to K50, 000.

    ENDORSEMENTS NOTED ON SABL PORTION 885C TITLE DOCUMENT 12.3. We note evidence of Sub-lease agreement duly registered with the Office of the Registrar of Titles. The endorsements at back of the SABL Title indicate sublease to TDL on 5/11/07, cancelled on 30/09/09, subleased again to Palma Hacienda Limited on 01/10/09. This sublease cancelled on 21/03/2011 and subleased again to TDL on 20/09/2011.

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  • 13 DEPARTMENT OF PROVINCIAL GOVERNMENT AND LOCAL LEVEL GOVERNMENT 13.1 The Land Investigation Report and the Recommendation for Alienability was not referred to the Custodian of trust Land for due diligence. There was also no Certificate of Alienability issued by the Custodian of Trust Land to allow for the registration and issuance of SABL Title to Tabut Limited.

    14. DEPARTMENT OF AGRICULTURE AND LIVESTOCK 14.1 Input by DAL has been minimal as was evident in other SABLs. The trend seems to be that DAL enthusiastically supports agriculture development plans and urges DEC to approve permits and PNGFA to approve FCAs then they disappear off the radar. In this 3 SABLs deputy secretary Daink has done just that. There does seem to be invitation put out for public hearings but there is no record of those hearings taking place. 14.2. Just as an aside, the same was done by DAL in the SABL granted to Rakubana Limited over an area known as Danfu in Namatanai. The same agriculture development plans were proposed there and DAL was full of praise. When it came to implementation of that agricultural program it seems that the PNGForest Authority Service and the Forest Service officer in NGI demanded that Tutuman implement its agriculture component.

    14.3. As far as the New Hanover projects are concerned the COI?s whirlwind tour of the site to ascertain the developments show very little evidence of cocoa tree estates. There have been landowner complaints that TDL has not kept its part of the bargain to plant cocoa and coconut and the few trees planted so far are now under thick bush as a result of neglect, though Tutuman was only facilitating the supply of cocoa seedlings to growers, who were farming their plots individually. 14.4 The C.O.I takes note of DALs involvement with the SABL Project on New Hanover. (1) A public notice on Public Hearing to be held at Tabut/Mamirum and Central New Hanover Integrated Agriculture and Forestry Project organised by DAL in consultation with PNG Forest Authority and other key Agencies of the Government in the conduct of a public hearing at New Hanover. The Meeting we note for the letter of invitation was to be held on 27th to 28th June 2009. Copies was circulated to PNG Forest Authority, DEC, Administrator, NIPA, Pedi Anis, Chairman, TDL and Tom Peni, NDAL, Kokopo. 14.5 C.O.I has not received any further information whether the awareness was conducted. The evidence by the landowners seem to suggest that there was no awareness nor any meetings conducted at New Hanover. (2) Mr Daink, Deputy Secretary (PATS), DAL advises Mr Anton Benjamin, Secretary, DAL by letter dated 14th July 2009, that proposals submitted by TDL to conduct agro- forestry projects requiring large areas of forest land to be cleared for agriculture purposes was assessed by his office and they were satisfied that an approval under Form 235 Certificate for Compliance be approved. 14.6. The Commission notes that under Form 235, DAL approval must be based on a detailed development plan, evaluation report to be assessed and determined. The detailed plans were not submitted when the application was made, though volume?s of Agro-Forestry Plans submitted by TDL was done after the approval was granted. This is grossly negligent, in that Form 235 is an important process whereby no grant for

    FCA can be processed after DAL approves that the Developer has the capacity to deliver on its agricultural product with full financial backing and an implementation schedule. The C.O.I. notes that this is a common trend that has become a norm for DAL to allow investors without any agricultural background and financial capacity to be allowed to have access to prime forest area

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  • especially under SABL for logging purpose. 14.7 The C.O.I also noted that a map and description area of the project area is made showing any areas of slope in excess of 30% or other area that is unsuitable for agriculture, other land use purpose and conservation. This was a cocoa project and such information was required as a pre- requisite to grant of FCA. 14.8 C.O.I has noted that the Management of TDL has now embarked on the Rubber Plantation Development. The Document was prepared for TDL by Escol Consulting Sdn Bhd of Malaysia and is dated May 2011. The C.O.I is highly suspicious on the manner in which TDL has decided to change its argricuture approach of originally planting cocoa to rubber. This is an abuse of the process for FCA approval, which was originally planned and approved by DAL for cocoa estate. No detailed Agriculture Plan 14.9 There is no detailed plan cocoa production, processing and processing of cocoa product.. No Land Use Plan for the Area 14.10. Crop farming as business firstly based on the assessment of soil suitability and rainfall pattern which determine the potential crops and livestock for investment in a given area. 14.11. There is no land use plans for the expired Mamirum TRP that could be used for the development,cocoa production, processing and export project. No oil Suitability Assessment 14.12 Soil Survey is a detail study to determine the plant nutrition requirements which would contribute towards the input costs for the agriculture investment plan .There is no soil suitability assessment report,

    therefore it was difficult to assess the agriculture projects and plans, input requirements for the development of agriculture development as proposed .” Feasibility Study 14.13. Feasibility study should be next step to confirm technical, economics and financial conditions for the establishment commercial farming business. Based on the outcome of the feasibility study an investment plan would be drawn and submitted to the government and a developer/investor.

    15. PNG FORESTRY AUTHORITY 15.1. There have been complaints made that the PFMC is constituted by the Chairman who is related to Mr Pedi Anis the Chairman of TDL and the Deputy Chairman is said to be a part of the TDL company. 15.2 The C.O.I notes that there is no mention of FCA being granted by PNFA Board.

    16 DEPARTMENT OF ENVIRONMENT AND CONSERVATION 16.1 Environment permits have been issued for Central New Ireland by DEC. It is still considering Permit for Tabut Limited and has no record for Umbukul Limited. There is no mention on DEC files as to whether public hearings and awareness were conducted to gauge views of customary land owners.

    17 RECOMMENDATION 17.1. The C.O.I. recommends that SABL Portion 885C be revoked on the basis that the integrity of the Land Group Registration process and the Land Investigation process fundamental to good title was flawed and must be nullified. The recommendation is consistent with the findings based on

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  • the sworn evidence of witnesses; Affidavit and Statements of Witnesses and production of documentary evidence

    1. The Land Group Incorporation Registration process and awareness conducted was not transparent affecting consent of majority landgroups within Tabut Electorate of New Hanover Island

    2. The Integrity of the Land Investigation process and disregard of the ad hoc administrative process adopted by DLPP in conducting land investigation for SABL was compromised;

    (1) Failure of DLPP to fund the officer?s operational costs to conduct the Land Investigation and also conduct public awareness on SABL.

    (2) Tutuman Development Limited funded the operational cost for the Officer conducting the land investigation and directed and took charge of the whole process.

    (3) The Land Investigation Report was not fully completed and the details were missing.

    (4) DLPP failed to collaborate and coordinate the field report with the Provincial Administrators Office and the Provincial Lands and Physical Planning Division.

    (5) The Recommendation for Alienability was not signed by the Provincial Administrator, NIPA in the LIRs produced to the Commission; and

    (6) The Minister or his Delegate also did not sign the Instrument of Lease/Lease Back Agreement. This affected the requisite consent requirement pursuant to section 11 of the Land Act. 17.2. On the basis of points (5) and (6) above means that the Notice of Direct Grant, Gazettal Notice, Registration and Issuance of Title are legally deemed to be void. 17.3. The Shareholding/Directorship of Tabut Development Limited must be restructured in terms of Shareholding and Directorship within the recognised and legitimate clans/villagers of Umbukul District. 17.4. The Election of the Chairman of the company must be conducted in a transparent way and with the consent of the people through their nominated agents acting as shareholders in the company. 17.5. All Resolutions and Decisions of the Company with respect to development issues should adhere to the provisions of the Companies Act and its Regulations. 17.6 Any future development plan coinciding with customary land, Landowner Company and ILGs must be proactive and ensure on Joint Venture/Partnership Agreement with foreign investors and corporation who comply with IPA requirements and properly screened by the Department of Commerce, Industry and Trade 17.7 It is recommended that SABL issued to Tabut Ltd should be reviewed and the process of ILG registration should proceed with prober consultative programme. Dialogue should be continuing through appropriate agriculture institutions to initiate a preliminary varietal and agronomic research to develop the site specific technology. Conduct the economic and financial analysis to

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  • determine the returns to investment. Conduct social and environmental impact studies to determine the impact of this project on the standard of living of the people and conservation of land for other uses by the present and future generation. Finally identify appropriate investor with the capital and expertise to participate in the joint venture business with the customary landowners to fulfil the intentions of the Special Purpose Agriculture and Business Lease.

    1. COI Inquiry File No 26 for Special Purpose Agricultural and Business Lease over Portion 886C Volume 17 Folio 19 Milinch: Lavongai New Ireland Province in the name of Umbukul Limited.

    1.1 In accordance with the powers given to the Commissioners pursuant to Section 7 of the Act, the Commissioners have summoned numerous witnesses to produce documents and be further examined on oath or affirmation.

    1.2 Witnesses were called from the six government agencies involved in the issuance and operation of the Umbukul Limited SABL. These were: 2.2.1 Department of New Ireland Province, (DNIP) 2.2.2 Department of Lands and Physical Planning, (DLPP) 2.2.3 Department of Provincial Affairs and Local Level Government, (DPALLG) 2.2.4 Department of Agriculture and Livestock, (DAL) 2.2.5 Department of Environment and Conservation, (DEC) 2.2.6 PNG Forest Authority (PNGForest Authority)

    Witnesses and Summonses 1.3 The names of the persons who have been summoned to appear and who have in fact appeared in the public hearings are set out in the schedule below.

    No Name and Position Pages Day Date 1 Mr Kamsal Maraleu, Ward Councillor, Ward 12 LLG, West Lavongai, Clan Leader & Deputy Chairman of Ianga Clan 16-22 5 28/10/11-SABL 40 Mirou 2 Mrs Gedjolly Aron, Nursing Officer & 23-28 5 28/10/11-SABL 40 Mirou

    Landowner Silau Clan, Kone Village, Umbukul

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  • 3 Mrs Delta Passingan Nates, Office Manageress, Melrose Place, Kotkot Clan, Soson Island, Umbukul 28-30 5 28/10/11-SABL 40 Mirou 4 Dickson Passim Kasi, Clan Leader of Manusap Clan& Pastor of Covenant Ministry International, Umbukul Ward 12 LLG. 58-60 5 28/10/11-SABL 40 Mirou 5 Mr Pedi Anis, Chairman, Tutuman Development Corporation & Landowner of Umbukul

    5 28/10/11-SABL 40 Mirou 6 Mr Pepi Kimas, OL, Former Secretary, DLPP

    5 28/10/11-SABL 40 Mirou 7 Mr Anthony Luben, Unattached Public Servant & Former Deputy Secretary Lands Services 2002- 2008, DLPP 10-18 – 05/01/12-SABL 68 MIROU (WAIGANI) 8 Mr Lazarus Malesa, Customary Leases Lands Officer, DLPP 6-15

    23/01/2012 SABL 79-Mirou (Waigani)

    2 Parties represented by counsel

    2.1 Section 8 of the Act relates to the appearance of counsel before the Commission on behalf of interested parties. It provides that: “Subject to Section 2(5), a person who satisfies the Commission that he has a bona fide interest in the subject matter of an inquiry under this Act, and any other person by leave of the Commission, may attend the inquiry in person or may be represented by counsel.” 2.2 The following were granted leave to be represented by counsel

    3 Exhibits and documents 3.1. There were nineteen (19) documents tendered as evidence before the Commission at the public hearings. A list of the Exhibits is shown below.

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  • No Item Interested Party Date received Exhibit Number 1 Statement of Kamsal Mareleu C.O.I 28/10/11 UL “1” 2 Statement of Gedjolly Aron C.O.I 28/10/11 UL “2” 3 Statement of Delta Passingan Nates C.O.I 28/10/11 UL “3” 4 Statement of Dickson Kasi C.O.I 28/10/11 UL “4” 5 Statement of Charles Lamangan C.O.I 28/10/11 UL “5” 6 Schedule Of Owners, Status And Rights To The Land From Umbukul C.O.I 24/01/12 LPM1 7 LIR Report For Umbukul Prepared By Mr Lazarus Paul Malesa C.O.I 24/01/12 LPM2 8 Letter Dated 5th May 2006 From Provincial

    Lands Manager, Mr M Banovo, New Ireland Province Notice Of Direct Grant C.O.I 24/01/12

  • Page 16 of 235

  • LMP3 9 Letter By Mr Robinson Sirambat, Provincial Administrator To The Secretary, Department Of C.O.I 24/01/12 LMP4

    Lands, Dated 19 November 2007, Revocation Of Rakubana Development Propriety Limited, Tabut, Umbukul And Central New Hanover As Registered Entity

    10 Land Investigation Report for Milinch of Lavongai Applicant Manag Katakesep, Guna Nuna Landgroup C.O.I 24/10/12 LMP 5 11 Land Investigation Report for Milinch of Lavongai Applicant Aihi Venge Clan C.O.I 24/10/12 LMP 6 12 Working File Folder for Central New Hanover Consisting of 11 Land Investigation Reports C.O.I 24/01/12 LPM 8 13 Working File Folder for Tabut Consisting of 11 Land Investigation Reports C.O.I 24/01/12 LPM 9 14 Working File Folder for Umbukul Consisting of 18 Land Investigation Reports C.O.I 24/01/12 LPM 10 15 Working File Folder for Danfu Consisting of 15 Land Investigation Reports C.O.I 24/01/12 LPM 11 16 The Brief Report of the Process Used to Register The SABL For Portion 885C, 886C, 887C and 871C Danfu C.O.I 24/01/12

  • Page 17 of 235

  • LPM 12

    17 An Outline of a Field Trip to New Ireland Province in 2007 by Mr Malesa C.O.I 24/01/12 LPM 13 19 Appendix “G” – Field Trip Report By Mr Lazarus Paul Malesa C.O.I 23/01/12 CE9

    4. Timeline of events of note surrounding Umbukul Limited SABL Title 4.1. The timeline showing important events concerning the SABL is shown below in chronological order of their happening:

    No Milestone Dated of Completion/G rant/Issue Execution Proponent/Applicant Respondent Entity/Respondent 1 Incorporation of Tutuman Development Limited (TDL) 2 December 1999 Tutuman Development Ltd TDL/Umbukul Ltd 2 Incorporation of Tutuman Integrated Products Limited 30 August 2007 TDL TDL/ Umbukul Ltd 3 Incorporation of Umbukul Ltd 30 August 2007 Umbukul Umbukul/TDL 4 Land Investigation Report (Incomplete) 17th May 2007 Umbukul Limited Umbukul/State 5 Notice Under Section 11 (Signed by Pepi Kimas) 10th October

  • Page 18 of 235

  • 2007 State/UL UL 6 Notice of Direct Grant (s102)-Signed by Pepi Kimas 16 October 2007 State/UL UL 7 Gazettal Notice G161 on SABL title for Portion 886C 17th October, 2007 UL UL/TDL 8 SABL Lease to 29th October UL UL/TDL

    Umbukul Limited 2007

    9 Request by TDL to 29 September TDL/State TDL

    DLPP for 2009

    Cancelation of Sub-

    lease Agreement

    with

  • Page 19 of 235

  • TL/Umbukul/Central

    New Hanover (Letter

    by Mr Miskus

    Mareleu, Company

    Lawyer)

    10 Agricultural 29 September TDL/UL/State TDL/UL

    Sublease Agreement 2009

    between TDL and

    UL (Stamp Duty

    Endorsement)-99

  • Page 20 of 235

  • years

    FINDINGS 4.2 The findings follow the chronology of table of notable events above surrounding the SABL lease title held by Umbukul Limited SABL.

    5. Umbukul Limited SABL 5.1. A Notice of Direct Grant under Section 102 of the Land Act was made in the National Gazette No. G161 dated 17th October 2007 for Portion 886CLavongai. The land is described as Umbukul.The term of the lease was for ninety-nine (99) years. A Special Agricultural and Business Lease was registered and issued on 16th October 2007 by the Department of Lands and Physical Planning to the holder Umbukul LimitedSABL(UL). Mr Pepi Kimas OL, signed as delegate of the Minister for Lands. The detail of the SABL is shown below:

    Legal Description Portion 886C Registered Survey Plan Catalogue No 23/468 SABL Holder Umbukul Limited Date of Registration of Lease 16th October 2007 Period of Lease Ninety-nine (99) years Land area of lease 25,108.00 hectares

    6. Background 6.1 There was no mention of boundaries and distances involved in the material perused but the lease is contiguous to Central New Hanover Limited and Tabut Limited SABLs. IPA COMPANIES REGISTRY RECORDS

    7. UMBUKUL LIMITED 7.1. According to the IPA Extracts dated 2nd August 2011, Umbukul Limited was incorporated on30 August 2007 and is currently operating. The Company Number is 1-54388.The principal place of business in Section 10 Allotment 6, Anir Street, Kavieng. 7.2 The issued ordinary shares of the company comprise 22. The listed shareholders holding 1 ordinary share in ULarePassingan Anis, Manuel Emos, Tusa Eremas, Kulepmu Gedion, Tugak Gira, Makago Isanah, Moris Japhet, Nipal Kepas, Enoch Konesikei, Iguatumaip Kunas, John Lapankun, Silas Lasaro, Joseph Nomba, Reuben Peni, Septe Sakias, John Sek, Isaiah Slavun, Akuila Sosonga, Isaiah Tangik, Kepas Temerem, Robin Tonaup and Temevoi Toropi. The 22 listed shareholders address is the same as the primcipal plave of business. 7.3 The seven (7) Directors are Reuben Peni, Tugak Gira, Passingan Anis, Makago Isanah, Akuila Sosongo, Moris Japhet and Kepas Temerem 7.4 The Company Secretary to ULis named as Miskus Maraleu.

  • Page 21 of 235

  • 8 LANDOWNERS OBJECTIONS TO THE SABL PORTION 886C 8.1 Landowners openly expressed their anger over what the C.O.I found consistent with New Hanover to be lack of awareness and fraudulent processing of the ILG registration and SABL processing of their land within the SABL Project area. 8.2 The following witnesses representing the different clans within the Umbukul LLG were called to confirm the general dissent against the umbrella landowner company and the wide spread abuse in the SABL which affected their habitation and general livelihood. These witnesses including two (2) female landowners who gave evidence to the inquiry.

    The Evidence of Mrs Gedjolly 8.3. Mrs Gedjolly from the Silau clan was approached by her relative Reuben Peni and Kepas Temeran at her house in the evening to obtain her signatures over what they said was for land registration. She signed the documents only to learn as a result of the inquiry that she signed consent to allow her land to be converted to SABL. Mrs Nates expressed concern over the future of her children, the lack of awareness and consultation between the parties. The Evidence of Mr Kasi 8.4 Mr Dickson Kasiinsisted and reinforced the views of the majority for more awareness on the SABL process demanding the return of the SABL land back to his people of Manusap Clan at Metetui Village This situation could not have occurred had the government agencies entrusted with the legal and statutory duties ensured that the process of acquiring customary land was done professionally with the illiterate, unsophisticated rural villager better informed on the disadvantages, advantages and the impact such development will have on their lives especially in the most basic subsistence life they enjoy. That is the most important duty that is expected from public servants and this must not be compromised for example payment of allowances and other expenses by the benefactor of the project. This continues to occur where the vast majority of people live in subsistence economy and their disability over understanding a concept

    so foreign to then requires patience and time to coordinate the land investigation process properly.

    The Evidence of Mr Kamsal Maraleu 8.5. He was the young brother of Miskus Maraleu. He was honest and played a significant role on behalf of Tutuman through his brother and Mr Pedi Annis, Chairman of Tutuman to ensure that consent was obtained from the landowners resulting in the sub lease agreement. He was instrumental in assisting the Malaysians in bringing machinery to Maitiea where the local landowners set up a blockade. He only became aware that the people no longer owned the land, through a conversation between Pedi Annis and two clansman namely Reuben Peni and Kepas Temeren on the signing of the consent form that “ you just sold your land!”.

    8.6. In admitting his mistakes to his people and his resolve to return the land back to his people, he freely volunteered the information to the inquiry. After he gave evidence he was assaulted by his nephew. The C.O.I denounces such action and at the time of the incident it was reported to police. Mr Maraleu had assisted the C.O.I on the site visit to New Hanover. We refer to the extract to his statement to the Inquiry which sets out the behaviour of Tutuman in its dealings with the people at New Hanover and Namatanai, “Thank you. I, Kamsal Maraleu, brother of Miskus Maraleu, lawyer; uncle to Pedi Anis, Chairman of Tutuman Development. I came and surrender myself to the Commission of Inquiry because I have a

  • Page 22 of 235

  • heart for my people. My statement is short in this paper which is now in front of you. A: I would like to tell the Commissioner that I was there during all these preparation. Dominance, Tutuman, Joinland and another company – they are one, with different names but they are same people. They used me because I am a leader and I have influence on the island. The way they went about all these was not right. I got the machineries from

    Dominance to start Tutuman Limited, the new company, and we went and operated at Kaut in Central New Ireland and Namatanai, later our plan was to go to the island because the island had plenty of trees. A: New Hanover Island. There are many educated people from New Hanover Island. That is why handpicked some of these people to pursue this idea. We selected these people from the three areas. We selected people from interested clans who would be able to follow us through with this idea. We did not follow the right way. I landed the machinery like my other brother from Central New Hanover. We were forced to make sure the machinery must go. When I landed the machine there was dispute. Myself and David, a Malaysian, manager went to seek advice from lawyer, Miskus Maraleu, to find out what we will do; the machine will go or what. He replied that the machine had to go and the Police must be present. The signing of every document?s, I used to grease the people to sign it in the interest of the company. Q: Sorry witness, could you just elaborate. You said, you “grease”. How did you “grease” them? Did you promise them anything? Just tell the Commissioner. A: I used to tell them to sign the paper because there will be some changes to help each of the families. That is what I thought would happen. But these evil people have hidden agendas. The signing of the permits, and to organize the director to talk to the PA and landowners I organized them. I did not put it on paper because we are family. One day during my good times I signed the last document to transfer a permit to Palma Hacienda. Miskus was there that time in the office, Pedi Anis, Deo, Mr Hii?s son, and Mrs Regina Hii. When I completed signing, Pedi shook my hands and said, “You have sold your land.” They were all happy. After this they paid me K100 for the paperwork I had done. I was troubled and I cried. I cry because I see the future of

    the children, grandchildren will not be good. So I got up and left everything. I did not cry for money, I went out because I have a heart for my people. I started to do some work to return the land back to our people. After three months away from work I heard that they had received a large amount of money; US$1.6 million. They got the money from the sales of Portion 887, Central New Hanover and 886C, Umbukul. I am from Umbukul. …. I stand firm to tell this Commission like this that these three Malaysians, Mr Sisi and Mr Deo and their workers that they must not return again to New Ireland and also to New Hanover and this lease – leaseback will have to stop. Get rid of the title from that company and the other companies that are on the island will have to leave the island. And whatever outstanding that they did not pay for in rental they have to pay up and they have to finish from working or stop working and the company Tutuman will to stop, cease operation.” (Refer to pages 17-19 of Transcript) 8.7. He also highlighted specific actions taken by Tutuman in its dealings with the SABL and that all the decisions undertaken by Umbukul Ltd was done by the Directors of the Company who attended the office of Tutuman at Kavieng. There was no consultation and decisions taken by Umbukul with the clan back at the village and the views of the landowners/villagers/clans were not represented. Everything was conducted in a veil of secrecy with the handpicked Shareholders/Directors of the company who at all times were Tutuman?s cronies. This equally applied to landowner companies Rakubana, Tabut and Central New Hanover 8.8 His explanation of the thick development plan by Tutuman to grown cocoa, coconut oil and oil palm was for interest in the volume of timber.

  • Page 23 of 235

  • The Evidence of Mr Lamangan 8.9 Mr Charles Lamangan described as fraudulent and criminal the consent obtained from traditional landowners to register ILGs in an area that was previously surveyed as the now expired Mamirum TRP area. He said the method of converting the expired TRP area into the SABL was to fast track the SABL process and under that arrangement acquires accessibility to the entire island of New Hanover. In his statement to the Commission he again reinforced the general feelings of the people on Tutuman?s involvement in the registration of ILG and Land Investigation process as fraudulent and the use of consultants that either were compromised or had potential conflict of interest. 8.10 The Commission finds that Tutuman appeared to have compromised its independent role as investor and Developer by personal and direct involvement in the ILG registration and the LIR process. We note that this conflict of interest did in fact continue with the involvement of the DLPP officer who was paid by Tutuman to undertake the LIR at its direction. That element of conflict does amount to gross abuse of the process and interference with public officials in the discharge of their statutory functions without fear and favour. This is in fact the worst kind of interference by a Developer whose shareholders/Directors are also landowners themselves.

    9 Department of New Ireland/New Ireland Provincial Administration 9.1 The Provincial Lands and Physical Planning Office, NIPA was not involved in the Land Investigation and ILG process on the island of New Hanover and Namatanai. 9.2 The C.O.I notes that Mr Lazarus Malesa was directed by Mr Anthony Luben, then Deputy Secretary on request by Tutuman Development Limited to assist with the ILG registration and the LIR process. It became obvious that when Mr Malesa?s trip was fully funded and paid by Tutuman, that he saw no need to make any contact with his provincial counterpart to assist in the land investigation on the island and at Namatanai

    9.3 The lack of protocol on the part of DLPP resulted in a letter written by Mr Robinson Sirambat, Provincial Administrator to Secretary, DLPP dated 19 November 2007 seeking to revoke all the SABLs in the province. This was on the premise that the Provincial Lands Office headed by Mr Banovo was ignored and that no direction was issued for their involvement as the lead agency. The letter in part reads, “It is sad to note that your Lands Officer, Mr Lazarus Malesa, failed to consult my Lands Manager as a matter of protocol when he visited the province to conduct LIRs on Mamirum, Central New Hanover, Umbukul and Danfu.” 9.4 The same issue was raised by the current Manager Mr Mark Waine in the Cassava Etagon Holdings SABL hearings. This was refuted by Mr Malesa who said that he was invited to be part of the team on the land mobilization for Kaut SABL. 9.5 There was a lack of coordination between DLPP and the Office of the Provincial Administrator through the Provincial Division of Lands and Physical Planning for the land investigation to be conducted. This is one of the many trends common to the way the LIR were conducted by DLPP without consulting the Provincial Administration for its assistance and involvement.

    10. DEPARTMENT OF LANDS AND PHYSICAL PLANNING 10.1 The evidence of Mr Malesa as the Lands Officer conducting the Land Investigation and Report on Portion 886C is applicable to other Portions (Refer to Common Witnesses) In summary, the C.O.I has perused the Land Investigation Report prepared by Mr Malesa in collaboration with Mr Maraleu of Tutuman Development Limited. Land Investigation Process & Report 10.2. No Tender Form/Application was sighted and we doubt whether any such application was

  • Page 24 of 235

  • submitted by the Executives of the Umbukul Limited to DLPP to verify the application in respect of existing State Leases. No Land Instruction Number was issued to authorize Provincial Lands Office at NIPA to conduct the land investigation and ILG social mapping awareness and registration.

    10.3. The pertinent details as indicated from all the LIRs inspected generally indicate that it was rushed and did not fully capture the important aspects of majority consent of landowners for inclusion in the report. We also note that Mr Malesa travelled from village to village and at times conducted his awareness at night amongst far less than 10 people, which was not the best scenario to conduct the land investigation. He was also reported to have conducted his land awareness with selected landowners at Kavieng Hotel and not on site. 10.4. LIR was not completed * Lack or no names of female clan leaders because it is a matrilineal society which casts a lot of doubt on the Declaration of Custom in relation to Land Tenure. * The Declaration as to Custom in relation to Land Tenure consisted of agents names as indicated in the report * Certificate as to Land Boundary is flawed because Mr Malesa was constantly travelling with his companions. * Valuer General?s Requirements is incomplete and blank * A person named Miskus Maraleu appears in forms attached to LIRs called „Schedule of owners, status and rights to the land?. Representatives for the Ahi Vonge clan are Miskus Maraleu, Mageret Maraleu, Mauna Maraleu, Miskus Juniour Maraleu, Malonie Maraleu, Majorie Maraleu and Melchicedek Maraleu 10.5. The Recommendation as to Alienability was not signed by the Provincial Administrator and was blank. This document will serve the basis for the verification and processing of the lease/lease back agreement. It is crucial to the SABL process and the lack of it renders the registration and issuance of the SABL title as null and void. Instrument of Lease/Lease Back Agreement 10.6. No lease/lease back Agreement was sighted by the C.O.I and executed between the State and the Agents on behalf of the landowners on 24th September 2007. We are unable to ascertain and verify if such an Agreement exists. If there is in fact no such documentation, then the statutory requirements under section 11 of the Land Act is highly questionable.

    10.7. On 16th October 2007, Notice of Direct Grant was signed by Pepi Kimas dated and the Owners copy of lease shows that Lease to Umbukul was signed on the 29th/10/2007 10.8. This whole process of registration without compliance of the statutory requirement of the lease/lease back agreement is flawed and is subject to nullification. DLPP is unable to monitor and enforce irregularities basically for the reason that there is no regulatory process governing the procedure and process of SABLs apart from ad-hoc administrative process accepted by DLPP which has been abused in all the SABLs we have evaluated and audited.

    11. AGRICULTURE SUB LEASE AGREEMENT 11.1 Agriculture Sub Lease agreement signed between Nipal Kepas as Chairman of Umbukul, Benvan Rovi and Passingan Anis as Committee members of Umbukul on the one part and Steven Hii as Managing director of Tutuman on the other. The agreement was witnessed by Miskus Maraleu as tenant or lawyer for tenant. 11.2. UL agreed to lease to Tutuman for 40 years at the annual rent set at K10, 000/annum. Other SABLs for eg Lolokoru estate in WNBP, NBPOL pay K50, 000/yr for harvest of oil palm fruit on only 2,000 ha of land. ENDORSEMENTS NOTED ON SABL PORTION 885C TITLE DOCUMENT 11.3. We note evidence of Sub-lease agreement duly registered with the Office of the Registrar of

  • Page 25 of 235

  • Titles. The endorsements at back of the SABL Title indicate sublease to UL on 5/11/07, cancelled on 30/09/09, subleased again to Palma Hacienda Limited on 02/10/09. This sublease cancelled on 21/03/2011 and subleased again to TDL on 22/03/2011.

    12. DEPARTMENT OF PROVINCIAL GOVERNMENT AND LOCAL LEVEL GOVERNMENT 12.1. The Land Investigation Report and the Recommendation for Alienability was not referred to the Custodian of trust Land for due diligence. There was also no Certificate of Alienability issued by the Custodian of Trust Land to allow for the registration and issuance of SABL Title to Tabut Limited.

    13. DEPARTMENT OF AGRICULTURE AND LIVESTOCK 13.1 Input by DAL has been minimal as was evident in other SABLs. The trend seems to be that DAL enthusiastically supports agriculture development plans and urges DEC to approve permits and PNGFA to approve FCAs then they disappear off the radar. In this 3 SABLs Deputy Secretary Daink has done just that. There does seem to be invitation put out for public hearings but there is no record of those hearings taking place. 13.2 The C.O.I takes note of DALs involvement with the SABL Project on New Hanover. 1) A public notice on Public Hearing to be held at Tabut/Mamirum and Central New Hanover Integrated Agriculture and Forestry Project organised by DAL in consultation with PNG Forest Authority and other key Agencies of the Government in the conduct of a public hearing at New Hanover. The Meeting we note for the letter of invitation was to be held on 27th to 28th June 2009. Copies of that Minute were circulated to PNG Forest Authority, DEC, Administrator, NIPA, Pedi Anis, Chairman, TDL and Tom Peni, NDAL, Kokopo. C.O.I has not received any further information whether the awareness was conducted. The evidence by the landowners seems to suggest that there was no awareness nor any meetings conducted at New Hanover. 2) Mr Daink, Deputy Secretary (PATS), DAL advises Mr Anton Benjamin, Secretary, DAL by letter dated 14th July 2009, that

    proposals submitted by TDL to conduct agro-forestry projects requiring large areas of forest land to be cleared for agriculture purposes was assessed by his office and they were satisfied that an approval under Form 235 Certificate for Compliance be approved. 3. The Commission notes that under Form 235, DAL approval must be based on a detailed development plan, evaluation report to be assessed and determined. The detailed plans were not submitted when the application was made, though volumes of Agro-Forestry Plans submitted by TDL was done after the approval was granted. This is grossly negligent, in that Form 235 is an important process whereby no grant for FCA can be processed after DAL approves that the Developer has the capacity to deliver on its agricultural product with full financial backing and an implementation schedule. The C.O.I. notes that this is a common trend that has become a norm for DAL to allow investors without any agricultural background and financial capacity to be allowed to have access to prime forest area especially under SABL for logging purpose. The C.O.I also noted that a map and description area of the project area is made showing any areas of slope in excess of 30% or other area that is unsuitable for agriculture, other land use purpose and conservation. This was a cocoa project and such information was required as a pre- requisite to grant of FCA. 4. C.O.I has noted that the Management of TDL has now embarked on the Rubber Plantation Development. The Document was prepared for TDL by Escol Consulting Sdn Bhd of Malaysia and is dated May 2011. The C.O.I is highly suspicious on the manner in which TDL has decided to change its argricuture approach of originally planting cocoa to rubber. This is an abuse of the process for FCA approval, which was originally planned and approved by DAL for cocoa estate.

  • Page 26 of 235

  • No detailed Agriculture Plan 13.3 There is no detailed plan cocoa production, processing and processing of cocoa product.. No Land Use Plan for the Area 13.4. Crop farming as business firstly based on the assessment of soil suitability and rainfall pattern which determine the potential crops and livestock for investment in a given area. 13.5. There is no land use plans for the expired Mamirum TRP that could be used for the development,cocoa production, processing and export project. No oil Suitability Assessment 13.6 Soil Survey is a detail study to determine the plant nutrition requirements which would contribute towards the input costs for the agriculture investment plan .There is no soil suitability assessment report therefore it is difficult to assess the agriculture projects and plans, input requirements for the development of agriculture development as proposed . Feasibility Study 13.7 Feasibility study should be next step to confirm technical, economics and financial conditions for the establishment commercial farming business. Based on the outcome of the feasibility study an investment plan would be drawn and submitted to the government and a developer/investor.

    14 PNG FORESTRY AUTHORITY 14.1 The C.O.I notes that there is no mention of FCA being granted by PNG Forest AuthorityBoard.No mention of FCA being granted by PNG Forest AuthorityBoard.

    15 DEPARTMENT OF ENVIRONMENT AND CONSERVATION 15.1 Environment permits have been issued for Central New Ireland by DEC. It is still considering Permit for Tabut Limited and has no record for Umbukul Limited. There is no mention on DEC files as to whether public hearings and awareness were conducted to gauge views of customary land owners.

    16 RECOMMENDATION 16.1 The C.O.I. recommends that SABL Portion 886C be revoked on the basis that the integrity of the Land Group Registration process and the Land Investigation process fundamental to good title was flawed and must be nullified. The recommendation is consistent with the findings based on the sworn evidence of witnesses; Affidavit and Statements of Witnesses and production of documentary evidence 16.1.1. The Land Group Incorporation Registration process and awareness conducted was not transparent affecting consent of majority landgroups within Umbukul Electorate of New Hanover Island 16.1.2. The Integrity of the Land Investigation process and disregard of the ad hoc administrative process adopted by DLPP in conducting land investigation for SABL was compromised; 16.1.3. Failure of DLPP to fund the officer?s operational costs to conduct the Land Investigation and also conduct public awareness on SABL. 16.1.4. Tutuman Development Limited funded the operational cost for the Officer conducting the land investigation and directed and took charge of the whole process. 16.1.5 The Land Investigation Report was not fully completed and the details were missing.

    16.1.6. DLPP failed to collaborate and coordinate the field report with the Provincial Administrators Office and the Provincial Lands and Physical Planning Division. 16.1.7. The Recommendation for Alienability was not signed by the Provincial Administrator, NIPA in the LIRs produced to the Commission; and

  • Page 27 of 235

  • 16.1.8. The Minister or his Delegate also did not sign the Instrument of Lease/Lease Back Agreement. This affected the requisite consent requirement pursuant to section 11 of the Land Act. On the basis of points (16.1.7) and (16.1.8) above means that the Notice of Direct Grant, Gazettal Notice, Registration and Issuance of Title are legally deemed to be void. 16.2 The Shareholding/Directorship of Umbukul Limited must be restructured in terms of Shareholding and Directorship within the recognised and legitimate clans/villagers of Umbukul District. 16.3 The Election of the Chairman of the company must be conducted in a transparent way and with the consent of the people through their nominated agents acting as shareholders in the company. 16.4 All Resolutions and Decisions of the Company with respect to development issues should adhere to the provisions of the Companies Act and its Regulations. 16.5. Any future development plan coinciding with customary land, Landowner Company and ILGs must be proactive and ensure on Joint Venture/Partnership Agreement with foreign investors and corporation who comply with IPA requirements and properly screened by the Department of Commerce, Industry and Trade. 16.6. It is recommended that SAB&L issued to Umbukul Ltd should be reviewed and the process of ILG registration should proceed with prober consultative programme. Dialogue should be continuing through appropriate agriculture institutions to initiate a preliminary varietal and agronomic research to develop the site specific technology. Conduct the economic and financial analysis to determine the returns to investment. Conduct social and environmental impact studies to determine the impact

    of this project on the standard of living of the people and conservation of land for other uses by the present and future generation. Finally identify appropriate investor with the capital and expertise to participate in the joint venture business with the customary landowners to fulfil the intentions of the Special Purpose Agriculture and Business Lease.

    1 COI Inquiry File No 27 for Special Purpose Agricultural and Business Lease over Portion 887C Volume 17 Folio 013 Milinch: Lavongai New Ireland Province in the name of Central New Hanover Limited.

    1.1 In accordance with the powers given to the Commissioners pursuant to Section 7 of the Act, the Commissioners have summoned numerous witnesses to produce documents and be further examined on oath or affirmation.

    1.2 Witnesses were called from the six government agencies involved in the issuance and operation of the Central New Hanover Limited SABL. These were:

    1.2.1 Department of New Ireland Province, (DNIP) 1.2.2 Department of Lands and Physical Planning, (DLPP) 1.2.3 Department of Provincial Affairs and Local Level Government, (DPALLG) 1.2.4 Department of Agriculture and Livestock, (DAL) 1.2.5 Department of Environment and Conservation, (DEC) 1.2.6 PNG Forest Authority (PNGForest Authority)

    Witnesses and Summonses

  • Page 28 of 235

  • 1.3 The names of the persons who have been summoned to appear and who have in fact appeared in the public hearings are set out in the schedule below.

    No Name and Position Pages Day Date 1 Felman Isaac, Landowner, Konematirik village 10-16 4 27/10/11-SABL 39 MIROU 2 Ismael Passingan, Electoral Officer, Landowner, Nuslik Village, Central New Hanover 16-21 4 27/10/11-SABL 39 MIROU 3 Nelson Posikai, Landowner, Inungulus Siabun Clan Patikin Village, CNH 22-25 4 27/10/11-SABL 39 MIROU 4 Elijah Sakias, Landowner, Sugun Village 22-25 4 27/10/11-SABL 39 MIROU 5 Darius Kanai, Patipai Village, North Lavongai, Ward 3 28-29 4 27/10/11-SABL 39 MIROU 6 Paul Pira, Teacher, Lavongai Primary School, Metamaram Village 66-69 5 28/10/11-SABL 40 Mirou 7 Benjamin Wenmot, Nanilara Village 70-72 5 28/10/11-SABL 40 Mirou 8 Sition Passingan, Private Lawyer & Representative of the Central New Hanover Forum 14-21

    04/11/11-SABL 43-MIROU 9 Mr Pedi Anis, Landowner, Umbukul Village, Chairman of Tutuman Development Ltd 8-54

  • Page 29 of 235

  • 2-14

    03/11/11-SABL 42 MIROU

    04/11/11-SABL 43 MIROU 10 Mr Miskus Maraleu

    Corporate Lawyer, Tutuman, Landowner, Umbukul 29-67

    04/11/11-SABL MIROU 11 Mrs Janet Rauveve, Director, TDL & Forester, 67-79 8 04/11/11=SABL MIROU 12 Francis Daink, Deputy Secretary, (PATS), DAL 02-15

    11/01/12 SABL 77- MIROU

    13 Mr Anthony Luben, Unattached Public Servant & Former Deputy Secretary Lands Services 2002- 2008, DLPP 10-18

    05/01/12-SABL 68 MIROU (WAIGANI) 14 Mr Pepi Kimas, Former Secretary, DLPP 3-52

    18/01/12-SABL 77-WAIGANI 15 Mr Lazarus Malesa, Customary Leases Lands Officer, DLPP 6-15

    23/01/2012 SABL 79-Mirou (Waigani)

    2. Parties represented by counsel

    2.1. Section 8 of the Act relates to the appearance of counsel before the Commission on behalf of interested parties. It provides that:

    “Subject to Section 2(5), a person who satisfies the Commission that he has a bona fide interest in

  • Page 30 of 235

  • the subject matter of an inquiry under this Act, and any other person by leave of the Commission, may attend the inquiry in person or may be represented by counsel.”

    2.2 The following were granted leave to be represented by counsel

    3. Exhibits and documents

    3.1. There were twenty-one (21) documents tendered as evidence before the Commission at the public hearings. A list of the Exhibits is shown below.

    No Item Interested Party Date received Exhibit Number 1 Statement of Felman Isaac C.O.I 27/10/11 CNH “1” 2 Statement of Nelson Posikai C.O.I 27/10/11 CNH “2” 3 Statement of Elizah Sakias C.O.I 27/10/11 CNH “3” 4 Statement ofDarius Kanai C.O.I 27/10/11 CNH “4” 5 Statement of Paul P