Identity fraud in Papua New Guinea

Logging in New Guinea by Rimbunan Hijau (Esperenza A Greenpeace/Flickr/CC BY-NC-ND 2.0)
Logging in New Guinea by Rimbunan Hijau (Esperenza A Greenpeace/Flickr/CC BY-NC-ND 2.0)
Written by Colin Filer

In September 2017, Papua New Guinea’s Supreme Court rejected an appeal by PNG’s biggest logging company, Rimbunan Hijau (RH), against an earlier decision of the National Court to award damages to the representatives of a landowning clan who claimed that the company had failed to identify them as the true landowners of an access road and log pond in the Central Province. Two months later, a post to the PNG Mine Watch blog quoted two paragraphs from the Supreme Court judgment in which this was said to be but one example of ‘a sad story that is repeated throughout the country over a long period of time from the colonial administration in the name of opening up wild frontiers for various so-called developments and projects’. The nub of the judicial argument was that the government and developers had persistently failed in their duty to establish the identity of the true landowners, organise them into incorporated land groups (ILGs), and then make agreements with these legal entities that would constitute evidence of free, prior and informed consent, and hence grant the developers a social licence to operate.

RH might have wondered how this argument applied to an agreement they had made with the wrong landowners back in 1988, four years before the passage of a new Forestry Act that required a process of land group incorporation to be undertaken by officials of the National Forest Service prior to the grant of a new logging concession. But what excited the bloggers was the thought that the oil and gas industry was now tarred with the same judicial brush as the logging industry. And what excited them even more was the cross-reference that one of the three judges, Justice Ambeng Kandakasi, made to a couple of his own previous judgments in the National Court, in which he said he had ‘correctly’ described the delinquent government officials and company executives as ‘fraudsters and thieves’.

The first of these judgments related to a case in which a local landowner accused the government and the developer of trying to negotiate a benefit-sharing agreement for the prospective P’nyang gas field in Western Province without having undertaken the ‘full-scale social mapping and landowner identification study’ required by the Oil and Gas Act. The second related to a rather different case, in which one landowner from Hela Province charged another local landowner and a group of government officials with failing to abide by an order for the parties to undergo a process of mediation to resolve an argument about the status of two ILGs that had been incorporated in order to be compensated for the government’s compulsory acquisition of their customary land. Although this second case had no obvious connection with any form of large-scale resource development, this was the case that led Justice Kandakasi to observe that ‘[t]he State and a developer should play a more proactive role in the mediation process and provide the kind of support it needs to properly organise the landowners into ILGs … [to] help eliminate fraudsters and thieves from gaining at the expenses [sic] of the real and genuine landowners’.

When the PNG Mine Watch blog post was re-posted to the listserv of the Association for Social Anthropology in Oceania, the judge himself was charged with misrepresenting the nature of customary land tenure and traditional social organisation. Peter Dwyer, co-author of a recently published book about the way that landowners in Western Province have reacted to the prospect of a gas project on their land, found a section of the P’nyang judgment in which the judge proclaimed the existence of a nationwide form of customary tenure that appeared to be based on his own understanding of the customs of his own people in Enga Province. Jean Zorn, who once taught in the Law Faculty at the University of PNG, thought that he might have been proclaiming the existence of a Melanesian version of European feudalism that he had picked up from outdated textbooks on the British common law. And Bryant Allen, from our own Department of Pacific Affairs, observed that this was not the only Engan who had failed to comprehend the traditional social organisation of the Huli people, who account for the majority of the customary owners of the land around PNG’s first LNG project.

Bryant also made reference to a commentary on the P’nyang judgment by Sam Koim and Stephen Howes, published in December 2016. They construed the judgment as one moment in an ongoing contest between two processes that had been used to determine the identity of the customary owners of land in petroleum development licence areas. On one hand there was a legal process of mediation or ‘alternative dispute resolution’ led by Justice Kandakasi himself. On the other hand there was a bureaucratic process of ‘clan vetting’ organised by officials in the Department of Petroleum and Energy. The other Engans whom Bryant mentions were in fact consultants hired by these officials to undertake this second form of landowner identification.

The latest conversations on this topic reveal that this has not just been a contest between legal and bureaucratic methods of landowner identification; it also represents a disjunction between different forms of knowledge, and even different ideologies. Furthermore, this failure of communication started before the passage of the Oil and Gas Act in 1998, and long before Justice Kandakasi initiated his own brand of judicial activism.

The relevant sections of the Oil and Gas Act clearly make project proponents responsible for the conduct of ‘social mapping and landowner identification studies’, and these studies are then lumped together with court decisions and submissions from other interested parties, as things that the Minister for Petroleum and Energy must take into account when deciding, first, who should be invited to represent local landowners in the negotiation of a benefit-sharing agreement, and second, how landowner benefits should actually be distributed under the terms of such an agreement.

Those of us who were responsible for drafting these parts of the Oil and Gas Act expected that the studies would normally be undertaken by consultant anthropologists, much like the ‘connection reports’ commissioned by Aboriginal Land Councils under the terms of the Australian Native Title Act. And that is pretty much what happened – at least until government officials invented the practice of ‘clan vetting’ and began to hire their own consultants to check what they had already been told by the anthropologists hired by the developers.

As Sam and Stephen pointed out in their blog post, the apparent failure of the anthropologists to produce the information required by the Minister is partly due to the absence of a regulation that should have been added to the Oil and Gas Act, which would have spelt out the relationship between social mapping (which is essentially a documentation of local custom) and landowner identification (which may involve the identification of groups (such as ‘clans’) or the construction of genealogies that show the mutual relationships of individuals within a ‘landowning community’). The absence of such a regulation is certainly one part of the problem, but not by any means the whole of it.

Back in 1994, I was asked by one of the companies involved in the development of the Gobe oil field in Southern Highlands Province to produce a ‘land investigation report’ documenting all the historical evidence that might help the Land Titles Commission (LTC) to resolve the dispute that had arisen over the identity of the customary landowners of the licence area. This request appeared to have the support of what was then the Department of Mining and Petroleum. However, when I was half-way through the process of writing this report, I was informed that the judge hearing the case was not interested in the result, so it was never finished. In 2016, I had another reason to visit the LTC’s office in Port Moresby, where the Chief Commissioner told me that the Gobe dispute – still unresolved — had just been referred back to him by the Supreme Court. He then showed me several metres of shelving now occupied by all the documents that had been produced over the course of the 23 years in which this particular buck had been passed between the LTC, the National Court and the Supreme Court.

I doubt that my report would have made much difference to the resolution of this particular dispute. But the point of interest here is that PNG’s judges do not even recognise the possibility that anthropologists or other social scientists might produce evidence relevant to the resolution of disputes about the identity of the ‘true landowners’ of any piece of customary land. And this is where the practice of the courts in PNG diverges from the practice of the Native Title Tribunal in Australia. Whatever regulations might be added to PNG’s Oil and Gas Act, they are most unlikely to impose an obligation on the judiciary to pay any attention to accounts of customary land tenure or traditional social organisation that are written by anthropologists – especially foreign anthropologists hired by the developers of oil or gas projects who might themselves be counted as ‘fraudsters and thieves’.

Although these terms were not deployed in the P’nyang judgment, the two subsequent judgments contain an interesting implication. If government officials and company executives have indeed been conspiring to make agreements with ‘false landowners’, who would then presumably count as fraudsters and thieves in their own right, their interest in doing so can only be explained on the assumption that the ‘true landowners’ would not agree to the encroachment on their customary land. This is a distinctive strand in what I have previously called the ‘ideology of landownership’, and is in some ways more problematic than the judicial construction of an idealised model of traditional social organisation that fails to fit the kind of truth discovered by anthropologists. For if the validity of any process of landowner identification depends on the discovery of landowners who object to any form of large-scale resource development, it might make more sense for the courts to declare that all forms of large-scale resource development are unconstitutional, and hence remove the need for any such discoveries.

Colin Filer

Dr Colin Filer is an Associate Professor at Crawford School of Public Policy. His research interests include the social context, organisation and impact of policies, programs and projects in the mining, petroleum, forestry and conservation sectors.

2 Comments

  • In his 8 February blog post, Colin Filer discusses a contest between the courts and the bureaucracy over the identification of land ownership in PNG. After Social Mapping and Landowner Identification (SMLI) reports written by largely foreign and independent anthropologists are received, challenges are heard in the courts. But ultimately it is the Minister for Petroleum and Energy who makes a decision about who will represent the landowners and how the benefits will be distributed. Filer observes that the SMLI reports do not provide what the Minister, or the landowners want. The anonymous and Greek speaking Vailala, in his comment on Colin Filer’s blog post, thinks that the SMLI reports, or at least those covering PNG LNG and the Huli, may have “stoked the fires of the political struggle waged by many individuals and groups to gain access to petroleum landowner royalties benefits.”

    Forty years ago in 1977 Mervyn Meggitt the first ethnographer in Enga, thought the Court of Native Affairs and the Land Titles Commission had brought back to life many dormant land disputes. Many of these disputes were probably insoluble given what Vailala calls the “contestation of historical memories”; in many cases the disputants had more less agreed not to fight over them anymore but to leave the land unused. But when a foreign institution like a land court appeared and had the power to enforce a zero-sum solution in which one side lost, both sides saw an opportunity to get a permanent outcome that would be to their advantage. This was and is Filer’s “disjunction between different forms of knowledge, and even different ideologies”. He correctly observes that this contest (what Vailala calls “the argon”), occurred well before the appearance of the Oil & Gas Act or the Mining Act.

    Neither Filer nor (especially) Vailala, make a clear distinction between landowner identification undertaken for the purposes of paying the benefits of resource extraction and that undertaken to resolve land disputes. Although landowner identification commonly reignites dormant land disputes, mixing up the two processes is not helpful in understanding the nature of the problem or seeking possible solutions.

    Land court magistrates in the 1970s and 1980s worked under the Land Disputes Settlement Act 1975 and faced similar situations to today’s PNG magistrates and judges. They were assisted by a District Land Disputes Committee and Land Mediators, who were knowledgeable local men empowered under the Act to do everything possible to settle a dispute through mediation. Today, lack of funding frequently means magistrates cannot visit the disputed land and mediators do not get paid and refuse to work. But they would still struggle to assess the veracity of the evidence offered to them by the disputants. Back in 1982, Rick Giddings, District Land Court Magistrate in Goroka observed that “disputing parties tend to push their own selfish ends, do not apply traditional principles, will not accept responsibility and are reluctant to accept court decisions” . . . “Many individuals and groups use disputes as a vehicle for their own social and political ends and are therefore not overly interested in having the dispute settled.” (Allen and Giddings 1982, 185). Giddings was aware that disputants tried to understand the principles on which the court was going to make its decision. If it was going to favour historical evidence about who originally occupied the land, oral histories and genealogies would be concocted by both sides to support their position. If it was going to favour present occupancy, both sides would make claims of ownership over gardens and houses and even women working a garden. He found, “many witnesses make untruthful statements before the Court”.

    The immediate post-colonial land courts were trying to resolve disputes over land that that had little or no monetary value. Today’s courts are dealing with disputes that may result in one group receiving significantly large amounts of money in the form of mining or petroleum royalties while their adversaries receive nothing. The Land Disputes Settlement Act was not designed to deal with land that has suddenly become worth millions of kina to its owners. Nor was the Land Groups Incorporation Act designed to be used by resource companies to pay royalties. But very importantly, as Vailala observes, “money is both moveable and divisible”. In the Hides LNG licence area, a number of disputes over small areas of land, like quarry sites, were settled by the disputants agreeing to divide the money between them and to leave the land dispute unresolved. A highly relevant case not mentioned by Colin Filer or Vailala is Justice Amet’s decision over the land at Juni on which Oil Search’s gas-to-electricity plant is constructed. Amet flew in the face of Huli custom, and made a decision in favour of the present Huli occupants, over the former Duguba owners. After winning their case in the court, the Huli offered 50% of their winnings to their Duguba protagonists (Weiner 2002).

    To return to the SMLI reports. Vailala is wrong to argue that the “Hela reports” promote the view that “all Hela landowners have a landownership interest in all Hela-owned land and much land owned by non-Hela”. The reports are not “Hela” reports. They are based on licence areas (Petroleum Retention Licences– PRLs and Petroleum Development Licences – PDLs) which are international 9km by 9km grid squares that go beyond the boundaries of Hela and beyond land occupied by Huli speakers. In the PNG LNG SMLI reports “major clans are identified as general landholding agencies, without then also specifying every individualised plot of land and how those holders or users relate to the primary landholding segment”(Goldman 2008, 19). Under the Act the government is not obligated to pay royalties to individuals and prefers to pay ILG representatives.
    But at Kutubu the ILGs did not function as envisaged by the Act as business entities: they did not cooperate in the management of their resources, rarely reinvested their cash receipts in business ventures, did not regulate their membership lists or manage land disputes, did not have functional Dispute Settlement Authorities as required by the Act; and received no infrastructure support or training (Goldman 2005). The initial number of ILGs at Kutubu more than doubled as members dissatisfied at not receiving payments due to them, split existing ILGs and created new ones. At Hides, the Act’s requirement that an individual belong to only one clan meant ILGs were rejected by the Huli, who all belong to at least two clans and usually more than two. As I have argued elsewhere, it is not possible for any non-Huli, nor for most Huli, to know who is a member of any particular Huli clan, nor to know what is the status of their membership.

    The solution to the problem of how to pay gas royalties to the Huli owners of the PNG LNG will have to be resolved by them. The circumstances must be created in which the Huli can devise a way to make the payments that satisfies the majority of the members of landowning clans. This situation will not be resolved by judges, ministers or public servants.

    Allen, B. J. and R. J. Giddings 1982. Land disputes and violence in Enga: the ‘Komanda’ case. Enga: foundations for development. B. Carrad, D. A. M. Lea and K. K. Talyaga. Armidale, University of New England. Volume 3 of Enga Yaaka Lasemana: 179-197.

    Goldman, L. 2005. Incorporating Huli: lessons from the Hides Licence Area. Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives. J. F. Weiner and K. Glaskin. Canberra, ANU Press: 97-115.

    Goldman, L 2008. Full-scale Social mapping and Landowner Identification Study of PRL-11 – PNG LNG Gas project

    Weiner, J. F. 2002. Adverse possession: some observations on the relation between land and land-based knowledge in Papua New Guinea. Transforming Land Conflict Symposium, http://www.usp.ac.fj/landmgmt/SYMPOSIUM

  • The description of Gobe land ownership issues as given here is somewhat misleading. It’s a fact that a proportionate division of benefits was agreed by Gobe landowners many years ago and benefit payments have been made on this basis. That some landowners have continued to pursue landownership issues through the courts is a separate issue.

    It’s a fact that in many jurisdictions around the world land-related disputes may sometimes be pursued by the protagonists for decades, even centuries. When courts are called on to make a decision there are winners and losers. Courtroom losers may well nurse a sense of grievance and look for legal avenues of challenge.

    All of this was no doubt well-known to and understood by those who drafted the custom law and custom land law legislation in PNG. Not only were the many and baffling common law rules on property discarded but also the ‘framing of the agon’ was designed in such a way that primary consideration is given to issues that are grounded in the present rather than encouraging a contestation of historical memories. It’s also a fact that many ‘PNG social groups exercise flexibility in their kin reckonings, group incorporation and inclusion, and partibility of land use. Hence the legislative preference for the living reality of contemporary ground truth as the basis for landowner determinations

    It’s a fact that a huge number of PNG groups have histories of migration and former land use that may date back for centuries. Different groups may have followed identical migration paths at widely separated points in time. Hence the legislative preference for contemporary ground truth.

    A primary role and duty of the PNG Land Court is to push back onto the protagonists the task of finding a solution to their dispute. In the context of the LNG Project this is made quite easy because the money benefit is both moveable and divisible.

    It’s worth noting that ADR was used to good effect in the Moran field dispute many years ago.
    Once the money division question is settled a contest between groups over their exact land boundaries, rights and usages may continue, perhaps for ever.

    One view is that the primary role of PNG courts when considering customary landownership matters is to not come to a decision. Conciliated and mediated settlements are greatly preferred over judicial decisions for many classes of disputes.

    When assessing PNG petroleum project landownership issues it has to be taken into consideration that the anthropologists’ SMLIS reports have not only failed to provide the needed information but may have also produced a negative effect. The petroleum projects’ SMLIS reports produced from 1998 and ending with the P’nyang Case courtroom fiasco of 2016 promoted the view that all Hela landowners have a landownership interest in all Hela-owned land and much land owned by non-Hela (the ‘genealogical footprint’ principle). It seems reasonable to conclude that this view served to stoke the fires of the political struggle waged by many individuals and groups to gain access to petroleum project landowner royalty benefits. A most inappropriate ‘framing of the agon’.

    Vailala

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