Secretary for Justice, Lawrence Kalinoe. (Photo: emtv.com)
Lawrence Kalinoe's astonishing defence of the unlawful SABL land grab rewrites history and ignores the law
The Secretary for Justice, Lawrence Kalinoe, has made an astonishing defence of the unlawful SABL land grab and the government's failure to cancel the leases or stop the illegal logging. He was speaking on radio in direct response to the civil society campaign to cancel the leases and an interview with ACT NOW! Campaign Coordinator, Eddie Tanago.
Speaking on the PNGFM MausWara program, Kalinoe has claimed:
the SABL leases were not issued by the State but by the landowners themselves;
the State cannot cancel the leases because it will have to pay K8 billion in compensation to the logging companies; and,
by appointing a Ministerial Committee, the Prime Minister has acted on the Commission of Inquiry findings.
None of these claims are true. Not only has Kalinoe turned the facts completely on their head in an apparent attempt to rewrite history, the government's top lawyer is ignoring the Land Act and throwing away the basic legal rights and protections contained in the Constitution
Kalinoe claims the 'very fundamental point is it was the land owners themselves that gave these SABLs… it is not the government or anyone else'. Kallinoe is both factually and legally incorrect and one fears he is being intentionally disingenuous to serve his political bosses.
The unlawful SABL leases were issued by the Department of Lands and signed by the Minister on the recommendation of his Departmental Secretary. The leases are official documents that have been signed off at the very highest levels of the State. It was officials in the Department who ignored or abused the Lands Act and failed to protect the interests of the majority of the landowners. Their deceit and incompetence has been clearly laid out in the Commission of Inquiry reports.
While it is true the leases were, in some cases, supported by a minority faction of landowners, the State failed in its basic duty to protect the interests of the majority. The whole Lands Act is based around the protection of customary land rights and the duty of the State to ensure minority factions do not hijack community land for their own selfish interests. If the Department of Lands had done its job properly and followed and applied the Lands Act, the leases would never have been issued.
It is also ridiculous to suggest the logging companies that have colluded with a minority of landowners to gain unlawful access to millions of hectares of forest could walk away with billions of kina in compensation. Firstly these companies would have to satisfy the courts they were unaware the leases were unlawful and they were innocent victims - something both the Commissioners and the Prime Minister have said is not true. They would then have to account for the hundreds of millions of kina they have received from their illegal logging operations. And finally they would have to explain why they have clear-felled thousands of hectares of forest but failed to establish the promised agriculture projects or only planted a few hectares.
These companies are not the innocent victims that Kalinoe paints them to be. In most cases they colluded with landowners and corrupt officials to get the leases in the first place and they have made huge profits from their logging operations. The State does not owe them a single toea. This has been clearly demonstrated in the five court cases to date where individual SABL leases have been declared null and void and no compensation whatsoever has been paid.
Finally, for Kalinoe to claim the Prime Minister has acted on the Commission of Inquiry recommendations to revoke the leases because he has appointed a Ministerial Committee, verges on the ludicrous. It is now very nearly two-years since the Commission findings were given to the PM. Appointing a Ministerial Committee which after 22 months has failed to act on a single recommendation from the Commission reports does not constitute "action".
You can read the full transcript of Kalinoe's comments below or listen to the audio file recording.
I want to respond to this interview you had with ACT NOW! PNG.
I want to correct a lot of misconceptions
I am Lawrence Kalinoe, Secretary for Justice
In this interview, this campaign ACT NOW PNG is running has got plenty of misinformation in it
The first, and very fundamental one is that it was the land owners themselves that gave these SABLs. It is factions of landowners who actually go and actually give away their land to the fellow colleague partner developers, many times they are external developers.
It is not, this is clear, it is not the government or anyone else, it is the landowners who go and actually persuade the developer to come and then they enter into these arrangements to do SABL activities logging or eventually what have you.
So this you need to make that clear. It is not government, it is not forestry, it is not even the foreign developers who come and acquire customary land. It is the landowners, factions of landowners who actually go and let their customary land out.
That is point number one.
Point number two. In relation to the implantation of this Commission of Inquiry Report. The government has acted on it. The government position is that because there are so many SABLs which have been brought into question and some of the SABLs were actually acquired with close consultation with factions of landowners. On that basis the landowners got their certificates and they went and invited the foreign developers to come. So they came and have developed these logging activities of hydro forestry or what have you. In a situation like that the question is this, the issue therefore is this, why should the State now, the State meaning the Independent State of Papua New Guinea, be made to pay millions and millions of kina?
Currently we have just about K8 billion in the total number of claims against the State by those affected property developers, forestry, agro-forestry developers. You think about it, what is the fairness? The State was not involved in this business. It was factions of landowners who go and negotiate with developers who come and try and develop their agro-forestry projects. It is them, they go and do this themselves. And when the other faction finds out that they are not in it they go and kick up a fuss. They try and find a reason to actually annul the SABL.
But anyway, the thing is this, the government has actually received that report. The government has put that to a Ministerial Committee and the Ministerial Committee is looking into specific cases to address these very complex issues.
It is not as easy as what, because there is so much implication in terms of damages against the State. We as the government, the Prime Minister Peter O'Neill he is very cautious. He cannot allow a situation where the State ends up paying companies about K8 billion. That is the total number of exposure the State is facing. We cannot allow that to happen. So the Prime Minister is very cautious. He has set up the Ministerial Committee and the system is working on it.
It is not as simple as what ACT NOW! are saying. That you just go and cancel the lease and give the lease back to the customary landowners. Who will pick up the cost? Who will pay for the damages which are now claimed by those developers, those investors?
I tell you it is a massive investment that is involved in some of them.
One particular litigation you are looking at in the vicinity of K500 thousand, K500 million sorry, K500 million, K600 million. That is so much money for the State to be made actually responsible for.
So it is a bit like the forestry and private owners dealings, private dealings legislation we had before, before the Barnett Inquiry. Where customary landowners go and do their deals themselves and only where there are problems now they run to the courts and the State because it facilitates the process, the State ends up paying for the cost. That is not right.
So Prime Minister Peter O'Neill and this government will make sure that where there is clear illegality and where the liabilities can be sorted out quickly those are acted on as, I mean, some are being acted on.
It is the landowners, they are the ones who go and enter into these deals and bring foreign developers to develop their land. So they cannot now turn around and cry and say oh look the government must just cancel this and give this land back to me. What happens to the title, that SABL title that was issued and on the basis of that title they went and got the developer to come themselves. These are, they go and actually plead, they go and fight with the developers. They say oh this is okay this is the benefit this project stands to bring to my community and my people. As a result the project gets off the ground. But when one faction complains that is when issues arise. That is when the State is dragged in to actually pay out, to pay for the damages. The claims are made against the State by the way and it is not a fair situation.
Make sure you are mindful of these things and don't paint things that seems to suggest oh the government the Prime Minister Peter O'Neill is not doing anything at all. No, far from it, he has acted on the report.