Land Registration PNG a response
On thinking about land registration in Papua New Guinea
Brian Brunton
Alotau Environment.
Let me start with a story of what can happen when a state imposes land reform on polyglot communities, and does not have the capacity to implement its programs.
A story from Mesopotamia
In 1858 the Turkish government in Constantinople, began its Midhat plan to extend Ottoman authority to Mesopotamia, now known as Iraq. The 1858 TAPU land law (named after the initials of the government office issuing it) replaced the feudal system of land holdings and tax farms, with legally sanctioned property rights. It was designed both to induce otherwise semi-nomadic tribal sheikhs to settle, and to give them a stake in the existing political order. In practice, the TAPU laws enabled the tribal sheikhs to become large landowners. The tribesmen, fearing that the new law was an attempt to collect taxes more effectively, or to impose conscription, registered community-owned tribal lands in their sheikhs' names, or sold them outright to urban speculators.
As a result, tribal sheikhs gradually were transformed into profit-seeking landlords while their tribesmen were relegated to the role of impoverished sharecroppers. Those land laws festered for 100 years. In 1937 a child was born to a poor landless peasant in mud house at Tikrit on the Tigris, in the puppet-state of Iraq. Iraq was nominally independent, but in reality, the British controlled it for the benefit of a group of oil companies.
The father of the child, Hussein al-Majid died before the birth of the child, and Sabha, his mother went to live in Tikrit with her brother, an officer in the Iraqi army Khairallah Talfah. Khairallah became the boy’s foster-father. In 1941, Kairallah participated in a rebellion against the pro-British Iraqi government. Nationalist army officers attacked the British air base Habbaniya, outside Baghdad in an attempt to get rid of the British. The British crushed this rebellion, and the Iraqi puppet government hung the bodies the four leaders of the rebellion (the four were called the “Golden Square”) outside the Ministry of Defense in Baghdad. Kairallah went to jail for five years. Sabha and her son had to go to live at al-Shawish with her late husband’s family, the Ibrahims, who were considered to be local brigands (rascals). Conditions in al-Shawish were appalling: no health and sanitary conditions, no paved roads, electricity or running water, infantile mortality in excess of 228 per 1000 births, malaria, bejel, hookworm, TB, trachoma: miserable poverty. Eventually Kairallah was released, and became the boy’s guardian and political mentor. By 1957 the boy was in Baghdad, a drop-out, selling cigarettes on street-corners, and a runner for the minor Arab nationalist Ba’th [“resurrection” or “renaissance”] Party. In 1958, General Abd al-Karim Qasim came to power in a coup overthrowing the British sponsored puppet-government that had rested on the old Turkish land laws. Qasim's economic policies reflected his poor origins, and his ties with the communists. He permitted trade unions, improved workers' conditions, and implemented land reform aimed at dismantling the old feudal structure of the countryside. His attack on the Turkish land laws antagonized those tribal sheikhs who had benefited from Turkish land “reform”. In 1959 there was an Arab revolt in Mosul, partly over agrarian reform laws following years of repression and social tension, and partly as a backlash against the rising influence of the Iraqi Communist Party. The lid blew off the sauce-pan. Qasim used pro-communist Kurdish militia to suppress the Arabs who revolted, but chaos and mayhem ensued. Hannah Batatu wrote:
For four days and four nights Kurds and Yezdis stood against Arabs; Assyrians and Aramaean Christians against Arab Muslims; the Arab tribe of Albu Mutaiwat against the Arab tribe of Shammar; the Kurdish tribe of al-Garariyyah against Arab Albu Mutaiwat; the peasants of Mosul county against their landlords; the soldiers of the Fifth Brigade against their officers; the periphery of the city of Mosul against its centre; the plebeians of the Arab quarters of al Makkawi and Wadi Hajar against the aristocrats of the Arab quarter of ad-Dawwash; and within the quarter of Bab al-Baid, the family of al-Rajabu against traditional rivals, the Aghawat.
On the 7th of October 1959, the young boy, now 22, was part of an Arab gang who ambushed Qasim, in an attempt to murder him. Qasim was only wounded, and the young boy escaped and fled, via Syria, into Egypt. The boy’s name was Saddam Hussein. The rest is history.
A specter is stalking in Waigani.
March this year saw yet another effort to resurrect the land registration issue in Papua New Guinea. The pressure came from the Department of Lands, but most surprisingly its public face is Dr. Jim Fingleton. Throughout March 2004 the Papua New Guinea Post Courier published a series of articles on land registration by Dr. Fingleton. So, in effect, Dr. Fingleton put land registration back on the agenda again.
Why should there be any difficulty about that?
It is dangerous, has caused trouble in the past; there has been a dramatic change in the quality of responses in world economy, and Dr. Fingleton should know better. First intellectuals have a responsibility to speak out boldly, and not be subsumed in the discourse of those who are inherently foolish, or evil. Secondly, the main problem with Dr. Fingleton’s messaging is that it sits on the fence; it is a bit of this, a bit of that, and one is left with the impression that land registration is inevitable, has some problems, but we will get it right in the end. That thinking is erroneous because land registration is not inevitable, they will certainly get it wrong, it will cause trouble, and it skirts the main dangers.
These dangers come from Papua New Guinea’s history: rebellion, resistance on land issues [Bougainville], and the secular trend that primitive accumulation is back with a vengeance [post 9/11 Iraq]. His articles do address some of these issues, but they distract from the essence of the danger. On the whole they present themselves to the public as reasonable expositions of a difficult issue, and carry sufficient “plausible deniability” that the arguments maybe part of the Lands Department’s agenda to promote the export economy, and deliver customary land into the hands of the multinationals. Put in those terms, Dr Fingleton may be indignant as he is not associated with neo-liberalism.
His credentials are respectable, running back to the 1960s and seventies when progressive Australians, and Australian thought were at their height in Papua New Guinea. He belongs to a group of principled scholars and lawyers who founded the Faculty of Law at UPNG including the Australians Jerry Nash, Tos Barnett, Jack Goldring, John Griffin QC, Rob O’Regan QC, Keith Young; “Tanzanians” from Dar es Salaam Law School: A B Weston, Peter Bayne, Rudi James (a Guyanan), Abdul Paliwala, Yash Gai; and the Americans: Bruce Otley, Jean and Stephen Zorn.
The agenda
Dr. Fingleton will address a seminar at the Research School Australian National University, State Society and Governance in Melanesia Project, on the 5th of May 2004. Between the 28th of August to the 2nd of September 2005 the Waigani Seminar, at the University of Papua New Guinea, on PNG in the New Millennium: Development Priorities in a Global Environment, will examine whether development, aid and sustainability are dependant on establishing a foundation for law and order, while addressing issues of land tenure, sustainability, and development. The seminar will also examine “Export Driven Prosperity”. “Discussion will focus on very specific aspects of a sub-theme. It is expected that all presentations will emphasize the future rather than the past and will emphasize priorities and action. The outcomes of the Waigani Seminar are expected to be directional rather than simply discursive”.
Land registration is back on the agenda, and the discourse is not totally value-free. It is this danger, and the role of intellectuals that I want to discuss.
The PNG Post Courier and Dr. Fingleton
The series of articles in the Post Courier started on the 9th of March under the headline Land as asset of great value. While that may startle those who see customary land for its “use” rather than its “exchange” values, it nevertheless set the tone with a description of the social setting of customary tenures, current population pressure on the Tolai in East New Britain, the Village Oil Palm scheme and lease-leaseback accommodating oil palm expansion in West New Britain, and urban pressures around Lae and Goroka. The article made it clear that separate and distinct legislation was needed to permit direct leasing by customary owners. Land registration was a merely a government service, and in one form or another, Papua New Guinea, had customary land registration laws for almost a century, although in the last 50 years very little land had actually been registered. It was an opening piece.
On the 15th of March came an article “What is land titles registration” describing basic concepts, and weighing registration in terms of strengths and weaknesses. In the text towards the end, if one read that far, were statements that land theft is a real risk once registration starts, that registration does not inevitably lead to better development; it must have strong landowner and political support; there should be great care in its administration; and it needed good staffing.
Unfortunately, there was no critical analysis of why an autonomous community would want to surrender territory it held alloidally, time-immemorial, to, what Helen Hughes would call, a “dysfunctional state”. Why would anyone want to give up real power to the celptos? Why, when in the Americas, Africa, and Australia genocide and theft left the indigenous people as paupers, would Papua New Guineans want to hand over control on the only thing they still exercised a sliver of control over, to a bunch of sycophantic thieves, who are generally ready to roll-over at the first whiff of crisp green-backs, euros, sterling and yen?
The theme of Papua New Guinea’s historic discontinuity in land registration was then elaborated in an article “PNG has a history of land registration” on the 22nd of March 2005. It was a description of the short-comings of earlier colonial land registration, some post independence “reforms”, and lessons-learnt: registration is politically “very difficult”; there must be strong support; it must be “voluntary”; it should evolve; and an adequate administrative capacity was vital.
Again there was an absence of real critique in the context of the Papua New Guinea’s chronic inability to dispense social justice at a local level. There was no attempt to address the sort of endemic fraud described by Lester Seri in his Post Courier article of the 19th of April 2005 Land defrauders: A close call. Seri described the theft in 1999 of 38,000 ha of customary land in Oro, as part of an oil palm scam, aided by the Lands, Primary Industry Departments, and the PNG Forest Authority. That was a significant event that could not be glossed over by saying that “adequate administrative capacity is vital”. All those Papua New Guineans who read Dr. Fingleton’s articles were entitled to know that there were very real and very recent risks with land registration. It was not just little bits of peri-urban land. A quarter ha block here and a quarter ha block there. Between 1999 and 2003 the whole of the Papua New Guinea government fought the Maisin people in the courts and took every trick that was available to their lawyers. It was 38,000 ha! It involved some very senor bureaucrats signing-off. True the Maisin got their land back by a civil action in the National Court. But no one was ever brought to account. Many of the perpetrators are out there waiting for the next chance. No one is interested, it’s in the past. The thieves lost the case and they are powerful enough to escape justice. Nothing has changed. It can happen again. That was part of the mistake of the articles. Along with the edicts of the Waigani Seminar, their thrust was a limited and contrived discourse to “promote” the future, and not the past. And of course once that is accepted, once ideas begin to go to the public, and present themselves in that manner, then there are problems.
The question of interest analysis was being air-brushed out of the discourse. The question being: who were the people interested in remembering, or forgetting, that the Papua New Guinea state, through a lease-leaseback land registration process, stole 38,000 ha of Maisin land in 1999?
When you are writer, and you don’t address questions like that, you are in trouble.
The final article by Dr. Fingleton, Land matters for PNG to decide, was published on the 29th of March. He wrote that Papua New Guineans would have to decide whether to accept sporadic registration to alleviate urban growth, the expansion of the oil palm and forestry, or go for systematic registration. A number of sub-issues needed to be settled: the legal nature of the interest to be registered; the effect of registration in law; the degree of alienability, the degree of centralization and de-centralization in the registration system; fixing up existing legislation; and deciding which set of bureaucrats will secure their livelihoods from any new system. All in all the series of articles covered the issues that the government wanted to be covered, with a superficial thoroughness that may be acceptable in a newspaper, in a manner not dissimilar to a attempt to evaluate and promote the uses and constituents of a soap-powder.
Papua New Guinea post Courier Almah Tararia & Lester Seri
On the 12th of April 2005 the PNG Post Courier published an article in response to those of Dr. Fingleton. The author, Ms. Almah Tararia, was the former senior lawyer and CEO of the Port Moresby-based Environmental Law Centre, and the lawyer who had the carriage of the Collingwood Bay case for the landowner plaintiffs. Ms. Tararia’s article appeared under the headline “Land registration is alienation”. As the lawyer who carried the Collingwood Bay case for three years, she too had credentials on the issue of the registration of customary land.
She argued that customary land is being lost now, but that Papua New Guinea is in a bad position to go through a period of change at present. The relative failure of the legal system to protect land owners was on her mind. She cited Dr. Fingleton from his article of the 22nd March 2005 “if the administrative capacity is not guaranteed, it is better not to register land titles at all”. That was because the government had no credibility and no capacity. The push for registration was from “those who dream of making money from land”, that I interpolate, as the lawyers, consultants and real estate developers involved in the local version of this discourse. Ms. Tararia went on to say that in customary society low levels of literacy and general commercial acumen, make fraud inevitable. The danger here is that registration drives the breakdown in Melanesian and Christian values: registration will lead to alienation. Then she moved to the offensive: the argument that custom cannot support development condemns us to perpetual dependency. Too bad we cannot take the energy of promoting more land registration, and harness it, to help customary landowners do their own development.
Lester Seri was the CEO of Conservation Melanesia until recently. He is a biologist, former Assistant Secretary of the Department of Environment and Conservation, a Maisin landowner from Collingwood Bay, and part of the Maisin team of customary leaders and intellectuals that defended themselves against the land theft by lease-leaseback in 1999. I have said that his article was published in the Post Courier on the 19th of April 2005 under the headline “Land defrauders: a close call”. The substance of this article has been discussed.
World economy and land registration
Customary land in Papua New Guinea was protected by the state. It was very difficult to alienate. Foreign investors simply could not buy or sell customary land because the law said it was illegal, and alienation could only occur under very limited circumstances. So the problem for international capital is how do we get our hands on land in Papua New Guinea?
The mechanisms used in Papua New Guinea to achieve this agenda, are and were: the conditionality of the international financial institutions ( World Bank, IMF, Asian Development Bank), the discourse of donors (Austaid, EU, ), the relationships of investors and commercial bankers, and the ideology of bourgeois economists who inhabit those institutions. Earlier attempts by the World Bank and Austaid were crude and ill-informed. Generally, land registration surfaced as an issue in the reports of consultants writing for the World Bank and Austaid. When the issue of land registration exploded in the late 1990’s these institutions retreated. They now formally take the position that they do not promote land registration because it is “too political”. The work of promoting land registration is now carried by consultants who have worked for, or with, the Department of Lands, a network of pro-registration local business interests, cabinet ministers who promote the export economy as the mode of development salvation, and Helen Hughes.
Land registration as part of that agenda as it applies to Papua New Guinea, is about the forcing open of markets: cheap edible vegetable-fats, and the freeing up of a capital asset : customary land, a necessary input for that market. Indeed, in the recent attack on Dr. Fingleton [he is quite genuine in his defense of customary land rights and attracts critique from both Left and Right], by Gosarevski. Hughes and Windybank, they are clear that the case for the commoditization of customary land rests on the failure of palm oil exports to grow in line with market opportunities and the decline in other agricultural exports. Land registration is about getting land off customary landowners for oil palm. We say this firmly because in our view existing law can be used for peri-urban expansions. So, we can extrapolate that the associated broader interests in the push for the registration of customary land are the interests of the Commonwealth Development Corporation, the United Kingdom government, the European Union, Kulim Bhd/New Britain Oil Palm, and the Malaysian government. As the Australian government is also immersed in a neo-liberal discourse, it is interested in a similar manner, and has begun to test the water, so to speak, over the corporatisation of those aboriginal lands recently won by aboriginal customary groups following the Mabo case, and ALP federal legislation www.onlineopinion.com.au/view.asp?article=3349. This is not to say that all are actively involved in promoting land registration. These are the groups that have interests, broadly and objectively, and will benefit from the speeding up of customary land registration.
The consequences of the Collingwood Bay case.
The Maisin case drew attention to a series of defects in existing law and process. The Department of Justice could not be relied upon to defend the decision of the Register of Titles to cancel the lease, once the majority of landowners had complained of fraud. The logging company got the minority of landowners to lodge a judicial review against the Registrar’s cancellation. But the Department of Justice was just not up to defending that decision. It did not have the capacity to do so, and the defense was left to the landowner-plaintiffs. The Lands Titles Commission that, according to Dr. Fingleton is meant to be central to evaluating whether there has been free and informed consent on the alienation of customary land, did not feature in the matter at all. Indeed it is a moribund institution, kept understaffed and under-funded. When matters of ownership are crucial for mining and oil companies, the Commissioners are pushed aside and National Court judges appointed to determine the case. The idea of making the Lands Titles Commission the arbiter of free and informed consent on land registration is fanciful. Dr. Fingleton ignored any detailed discussion of that issue in his articles.
A similar situation exists with the Land Disputes Settlement Act that determines customary ownership of land. It is kept short of funds. In the Maisin Collingwood Bay case, the District Land Court refused to act because it said it had “no transport funds”. The landowners went to the National Court and successfully obtained a judicial review forcing the District Land Court to do its duty. When the lands court finally acted, the illegality of the alienation by a group of town-based was clear. It was overwhelming. The social issue on the ground in Collingwood Bay disappeared, and was resolved a year after judgment in the National Court, by a traditional peace-making and thank you ceremony.
But once the case was in the National Court it took three years to find its way to a judgment. The probable real costs to the landowners, if there had been no pro bono work, would have been in excess of K250, 000. It took one of the judges a year to write one judgment, although it was never published because the judge lost his notes. National Court civil procedure rules are Byzantine in nature, even though they are a copy of those in effect in New South Wales. The rules favour those with long-pockets, and disadvantage landowners. While the system works, it only works after a fashion. You need to get very lucky, if you are poor and want justice.
Since the 1980s there has been a series of Ombudsman Commission Reports, and Leadership tribunal cases that point to corruption, conflicts of interest, and procedural irregularity. There were the Poreporena Road, the Port Moresby Water Supply Edu Ranu, the Murray Barracks institutional housing, the Cairns Conservatorium and the Malagunan Haus reports; Tos Barnett reported on corruption in the logging industry in 1990. Makere Morauta, before he became prime minister, described corruption as systemic and systematic. The Lands Department is notorious for corruption. Files are lost. Port Moresby solicitors have anecdotes: you want the file, you pay for it; don’t complain. As one century rolled into the next, it became apparent that grand corruption (corruption at the top) was complemented by petty-corruption- (the corruption of survival when salaries are too low, and grand corruption is so blatant).
What then is the problem?
Frankly, one expects a better quality of thought.
One expects that not be drawn into a process so fraught with danger. The danger is that a discussion of land registration out side of a critique of corruption, the fragility of the state, and the current stage of capitalist development, the neo-liberal, and now neo-conservative agenda, is very dangerous. This is so because of the risk of contamination from these agendas. They are agendas that are intellectually dishonest and morally bankrupt. They do not promote the interests of Papua New Guinean landowners; they promote the interests of a small group of very powerful interests outside of Papua New Guinea. Even though Papua New Guinea is at the periphery of the world economy, and many do not even know, or care where it is, the registration of customary land has to be seen as part of a wider process of capitalist development, as a facet of the neo-liberal agenda, and now part of the neo-liberal agenda too. These things do not just happen. They are part of processes that often have little to do with Papua New Guinea, and to understand the processes we have to got back to the past (breaking with the organizers of the Waigani Seminar), and ask basic questions about neo-liberalism. Of course it is not just the wicked capitalists. We have a “fight culture”, are “short-fused”, have our fair share of evil and of bloody-mindedness. And they are not insignificant. But I intend to leave the details of the thrust of this type of argument for another day.
Brian D. Brunton
Alotau Environment
Box 552, Alotau, PNG
alenvir@online.net.pg.
Brian Brunton
Alotau Environment.
Let me start with a story of what can happen when a state imposes land reform on polyglot communities, and does not have the capacity to implement its programs.
A story from Mesopotamia
In 1858 the Turkish government in Constantinople, began its Midhat plan to extend Ottoman authority to Mesopotamia, now known as Iraq. The 1858 TAPU land law (named after the initials of the government office issuing it) replaced the feudal system of land holdings and tax farms, with legally sanctioned property rights. It was designed both to induce otherwise semi-nomadic tribal sheikhs to settle, and to give them a stake in the existing political order. In practice, the TAPU laws enabled the tribal sheikhs to become large landowners. The tribesmen, fearing that the new law was an attempt to collect taxes more effectively, or to impose conscription, registered community-owned tribal lands in their sheikhs' names, or sold them outright to urban speculators.
As a result, tribal sheikhs gradually were transformed into profit-seeking landlords while their tribesmen were relegated to the role of impoverished sharecroppers. Those land laws festered for 100 years. In 1937 a child was born to a poor landless peasant in mud house at Tikrit on the Tigris, in the puppet-state of Iraq. Iraq was nominally independent, but in reality, the British controlled it for the benefit of a group of oil companies.
The father of the child, Hussein al-Majid died before the birth of the child, and Sabha, his mother went to live in Tikrit with her brother, an officer in the Iraqi army Khairallah Talfah. Khairallah became the boy’s foster-father. In 1941, Kairallah participated in a rebellion against the pro-British Iraqi government. Nationalist army officers attacked the British air base Habbaniya, outside Baghdad in an attempt to get rid of the British. The British crushed this rebellion, and the Iraqi puppet government hung the bodies the four leaders of the rebellion (the four were called the “Golden Square”) outside the Ministry of Defense in Baghdad. Kairallah went to jail for five years. Sabha and her son had to go to live at al-Shawish with her late husband’s family, the Ibrahims, who were considered to be local brigands (rascals). Conditions in al-Shawish were appalling: no health and sanitary conditions, no paved roads, electricity or running water, infantile mortality in excess of 228 per 1000 births, malaria, bejel, hookworm, TB, trachoma: miserable poverty. Eventually Kairallah was released, and became the boy’s guardian and political mentor. By 1957 the boy was in Baghdad, a drop-out, selling cigarettes on street-corners, and a runner for the minor Arab nationalist Ba’th [“resurrection” or “renaissance”] Party. In 1958, General Abd al-Karim Qasim came to power in a coup overthrowing the British sponsored puppet-government that had rested on the old Turkish land laws. Qasim's economic policies reflected his poor origins, and his ties with the communists. He permitted trade unions, improved workers' conditions, and implemented land reform aimed at dismantling the old feudal structure of the countryside. His attack on the Turkish land laws antagonized those tribal sheikhs who had benefited from Turkish land “reform”. In 1959 there was an Arab revolt in Mosul, partly over agrarian reform laws following years of repression and social tension, and partly as a backlash against the rising influence of the Iraqi Communist Party. The lid blew off the sauce-pan. Qasim used pro-communist Kurdish militia to suppress the Arabs who revolted, but chaos and mayhem ensued. Hannah Batatu wrote:
For four days and four nights Kurds and Yezdis stood against Arabs; Assyrians and Aramaean Christians against Arab Muslims; the Arab tribe of Albu Mutaiwat against the Arab tribe of Shammar; the Kurdish tribe of al-Garariyyah against Arab Albu Mutaiwat; the peasants of Mosul county against their landlords; the soldiers of the Fifth Brigade against their officers; the periphery of the city of Mosul against its centre; the plebeians of the Arab quarters of al Makkawi and Wadi Hajar against the aristocrats of the Arab quarter of ad-Dawwash; and within the quarter of Bab al-Baid, the family of al-Rajabu against traditional rivals, the Aghawat.
On the 7th of October 1959, the young boy, now 22, was part of an Arab gang who ambushed Qasim, in an attempt to murder him. Qasim was only wounded, and the young boy escaped and fled, via Syria, into Egypt. The boy’s name was Saddam Hussein. The rest is history.
A specter is stalking in Waigani.
March this year saw yet another effort to resurrect the land registration issue in Papua New Guinea. The pressure came from the Department of Lands, but most surprisingly its public face is Dr. Jim Fingleton. Throughout March 2004 the Papua New Guinea Post Courier published a series of articles on land registration by Dr. Fingleton. So, in effect, Dr. Fingleton put land registration back on the agenda again.
Why should there be any difficulty about that?
It is dangerous, has caused trouble in the past; there has been a dramatic change in the quality of responses in world economy, and Dr. Fingleton should know better. First intellectuals have a responsibility to speak out boldly, and not be subsumed in the discourse of those who are inherently foolish, or evil. Secondly, the main problem with Dr. Fingleton’s messaging is that it sits on the fence; it is a bit of this, a bit of that, and one is left with the impression that land registration is inevitable, has some problems, but we will get it right in the end. That thinking is erroneous because land registration is not inevitable, they will certainly get it wrong, it will cause trouble, and it skirts the main dangers.
These dangers come from Papua New Guinea’s history: rebellion, resistance on land issues [Bougainville], and the secular trend that primitive accumulation is back with a vengeance [post 9/11 Iraq]. His articles do address some of these issues, but they distract from the essence of the danger. On the whole they present themselves to the public as reasonable expositions of a difficult issue, and carry sufficient “plausible deniability” that the arguments maybe part of the Lands Department’s agenda to promote the export economy, and deliver customary land into the hands of the multinationals. Put in those terms, Dr Fingleton may be indignant as he is not associated with neo-liberalism.
His credentials are respectable, running back to the 1960s and seventies when progressive Australians, and Australian thought were at their height in Papua New Guinea. He belongs to a group of principled scholars and lawyers who founded the Faculty of Law at UPNG including the Australians Jerry Nash, Tos Barnett, Jack Goldring, John Griffin QC, Rob O’Regan QC, Keith Young; “Tanzanians” from Dar es Salaam Law School: A B Weston, Peter Bayne, Rudi James (a Guyanan), Abdul Paliwala, Yash Gai; and the Americans: Bruce Otley, Jean and Stephen Zorn.
The agenda
Dr. Fingleton will address a seminar at the Research School Australian National University, State Society and Governance in Melanesia Project, on the 5th of May 2004. Between the 28th of August to the 2nd of September 2005 the Waigani Seminar, at the University of Papua New Guinea, on PNG in the New Millennium: Development Priorities in a Global Environment, will examine whether development, aid and sustainability are dependant on establishing a foundation for law and order, while addressing issues of land tenure, sustainability, and development. The seminar will also examine “Export Driven Prosperity”. “Discussion will focus on very specific aspects of a sub-theme. It is expected that all presentations will emphasize the future rather than the past and will emphasize priorities and action. The outcomes of the Waigani Seminar are expected to be directional rather than simply discursive”.
Land registration is back on the agenda, and the discourse is not totally value-free. It is this danger, and the role of intellectuals that I want to discuss.
The PNG Post Courier and Dr. Fingleton
The series of articles in the Post Courier started on the 9th of March under the headline Land as asset of great value. While that may startle those who see customary land for its “use” rather than its “exchange” values, it nevertheless set the tone with a description of the social setting of customary tenures, current population pressure on the Tolai in East New Britain, the Village Oil Palm scheme and lease-leaseback accommodating oil palm expansion in West New Britain, and urban pressures around Lae and Goroka. The article made it clear that separate and distinct legislation was needed to permit direct leasing by customary owners. Land registration was a merely a government service, and in one form or another, Papua New Guinea, had customary land registration laws for almost a century, although in the last 50 years very little land had actually been registered. It was an opening piece.
On the 15th of March came an article “What is land titles registration” describing basic concepts, and weighing registration in terms of strengths and weaknesses. In the text towards the end, if one read that far, were statements that land theft is a real risk once registration starts, that registration does not inevitably lead to better development; it must have strong landowner and political support; there should be great care in its administration; and it needed good staffing.
Unfortunately, there was no critical analysis of why an autonomous community would want to surrender territory it held alloidally, time-immemorial, to, what Helen Hughes would call, a “dysfunctional state”. Why would anyone want to give up real power to the celptos? Why, when in the Americas, Africa, and Australia genocide and theft left the indigenous people as paupers, would Papua New Guineans want to hand over control on the only thing they still exercised a sliver of control over, to a bunch of sycophantic thieves, who are generally ready to roll-over at the first whiff of crisp green-backs, euros, sterling and yen?
The theme of Papua New Guinea’s historic discontinuity in land registration was then elaborated in an article “PNG has a history of land registration” on the 22nd of March 2005. It was a description of the short-comings of earlier colonial land registration, some post independence “reforms”, and lessons-learnt: registration is politically “very difficult”; there must be strong support; it must be “voluntary”; it should evolve; and an adequate administrative capacity was vital.
Again there was an absence of real critique in the context of the Papua New Guinea’s chronic inability to dispense social justice at a local level. There was no attempt to address the sort of endemic fraud described by Lester Seri in his Post Courier article of the 19th of April 2005 Land defrauders: A close call. Seri described the theft in 1999 of 38,000 ha of customary land in Oro, as part of an oil palm scam, aided by the Lands, Primary Industry Departments, and the PNG Forest Authority. That was a significant event that could not be glossed over by saying that “adequate administrative capacity is vital”. All those Papua New Guineans who read Dr. Fingleton’s articles were entitled to know that there were very real and very recent risks with land registration. It was not just little bits of peri-urban land. A quarter ha block here and a quarter ha block there. Between 1999 and 2003 the whole of the Papua New Guinea government fought the Maisin people in the courts and took every trick that was available to their lawyers. It was 38,000 ha! It involved some very senor bureaucrats signing-off. True the Maisin got their land back by a civil action in the National Court. But no one was ever brought to account. Many of the perpetrators are out there waiting for the next chance. No one is interested, it’s in the past. The thieves lost the case and they are powerful enough to escape justice. Nothing has changed. It can happen again. That was part of the mistake of the articles. Along with the edicts of the Waigani Seminar, their thrust was a limited and contrived discourse to “promote” the future, and not the past. And of course once that is accepted, once ideas begin to go to the public, and present themselves in that manner, then there are problems.
The question of interest analysis was being air-brushed out of the discourse. The question being: who were the people interested in remembering, or forgetting, that the Papua New Guinea state, through a lease-leaseback land registration process, stole 38,000 ha of Maisin land in 1999?
When you are writer, and you don’t address questions like that, you are in trouble.
The final article by Dr. Fingleton, Land matters for PNG to decide, was published on the 29th of March. He wrote that Papua New Guineans would have to decide whether to accept sporadic registration to alleviate urban growth, the expansion of the oil palm and forestry, or go for systematic registration. A number of sub-issues needed to be settled: the legal nature of the interest to be registered; the effect of registration in law; the degree of alienability, the degree of centralization and de-centralization in the registration system; fixing up existing legislation; and deciding which set of bureaucrats will secure their livelihoods from any new system. All in all the series of articles covered the issues that the government wanted to be covered, with a superficial thoroughness that may be acceptable in a newspaper, in a manner not dissimilar to a attempt to evaluate and promote the uses and constituents of a soap-powder.
Papua New Guinea post Courier Almah Tararia & Lester Seri
On the 12th of April 2005 the PNG Post Courier published an article in response to those of Dr. Fingleton. The author, Ms. Almah Tararia, was the former senior lawyer and CEO of the Port Moresby-based Environmental Law Centre, and the lawyer who had the carriage of the Collingwood Bay case for the landowner plaintiffs. Ms. Tararia’s article appeared under the headline “Land registration is alienation”. As the lawyer who carried the Collingwood Bay case for three years, she too had credentials on the issue of the registration of customary land.
She argued that customary land is being lost now, but that Papua New Guinea is in a bad position to go through a period of change at present. The relative failure of the legal system to protect land owners was on her mind. She cited Dr. Fingleton from his article of the 22nd March 2005 “if the administrative capacity is not guaranteed, it is better not to register land titles at all”. That was because the government had no credibility and no capacity. The push for registration was from “those who dream of making money from land”, that I interpolate, as the lawyers, consultants and real estate developers involved in the local version of this discourse. Ms. Tararia went on to say that in customary society low levels of literacy and general commercial acumen, make fraud inevitable. The danger here is that registration drives the breakdown in Melanesian and Christian values: registration will lead to alienation. Then she moved to the offensive: the argument that custom cannot support development condemns us to perpetual dependency. Too bad we cannot take the energy of promoting more land registration, and harness it, to help customary landowners do their own development.
Lester Seri was the CEO of Conservation Melanesia until recently. He is a biologist, former Assistant Secretary of the Department of Environment and Conservation, a Maisin landowner from Collingwood Bay, and part of the Maisin team of customary leaders and intellectuals that defended themselves against the land theft by lease-leaseback in 1999. I have said that his article was published in the Post Courier on the 19th of April 2005 under the headline “Land defrauders: a close call”. The substance of this article has been discussed.
World economy and land registration
Customary land in Papua New Guinea was protected by the state. It was very difficult to alienate. Foreign investors simply could not buy or sell customary land because the law said it was illegal, and alienation could only occur under very limited circumstances. So the problem for international capital is how do we get our hands on land in Papua New Guinea?
The mechanisms used in Papua New Guinea to achieve this agenda, are and were: the conditionality of the international financial institutions ( World Bank, IMF, Asian Development Bank), the discourse of donors (Austaid, EU, ), the relationships of investors and commercial bankers, and the ideology of bourgeois economists who inhabit those institutions. Earlier attempts by the World Bank and Austaid were crude and ill-informed. Generally, land registration surfaced as an issue in the reports of consultants writing for the World Bank and Austaid. When the issue of land registration exploded in the late 1990’s these institutions retreated. They now formally take the position that they do not promote land registration because it is “too political”. The work of promoting land registration is now carried by consultants who have worked for, or with, the Department of Lands, a network of pro-registration local business interests, cabinet ministers who promote the export economy as the mode of development salvation, and Helen Hughes.
Land registration as part of that agenda as it applies to Papua New Guinea, is about the forcing open of markets: cheap edible vegetable-fats, and the freeing up of a capital asset : customary land, a necessary input for that market. Indeed, in the recent attack on Dr. Fingleton [he is quite genuine in his defense of customary land rights and attracts critique from both Left and Right], by Gosarevski. Hughes and Windybank, they are clear that the case for the commoditization of customary land rests on the failure of palm oil exports to grow in line with market opportunities and the decline in other agricultural exports. Land registration is about getting land off customary landowners for oil palm. We say this firmly because in our view existing law can be used for peri-urban expansions. So, we can extrapolate that the associated broader interests in the push for the registration of customary land are the interests of the Commonwealth Development Corporation, the United Kingdom government, the European Union, Kulim Bhd/New Britain Oil Palm, and the Malaysian government. As the Australian government is also immersed in a neo-liberal discourse, it is interested in a similar manner, and has begun to test the water, so to speak, over the corporatisation of those aboriginal lands recently won by aboriginal customary groups following the Mabo case, and ALP federal legislation www.onlineopinion.com.au/view.asp?article=3349. This is not to say that all are actively involved in promoting land registration. These are the groups that have interests, broadly and objectively, and will benefit from the speeding up of customary land registration.
The consequences of the Collingwood Bay case.
The Maisin case drew attention to a series of defects in existing law and process. The Department of Justice could not be relied upon to defend the decision of the Register of Titles to cancel the lease, once the majority of landowners had complained of fraud. The logging company got the minority of landowners to lodge a judicial review against the Registrar’s cancellation. But the Department of Justice was just not up to defending that decision. It did not have the capacity to do so, and the defense was left to the landowner-plaintiffs. The Lands Titles Commission that, according to Dr. Fingleton is meant to be central to evaluating whether there has been free and informed consent on the alienation of customary land, did not feature in the matter at all. Indeed it is a moribund institution, kept understaffed and under-funded. When matters of ownership are crucial for mining and oil companies, the Commissioners are pushed aside and National Court judges appointed to determine the case. The idea of making the Lands Titles Commission the arbiter of free and informed consent on land registration is fanciful. Dr. Fingleton ignored any detailed discussion of that issue in his articles.
A similar situation exists with the Land Disputes Settlement Act that determines customary ownership of land. It is kept short of funds. In the Maisin Collingwood Bay case, the District Land Court refused to act because it said it had “no transport funds”. The landowners went to the National Court and successfully obtained a judicial review forcing the District Land Court to do its duty. When the lands court finally acted, the illegality of the alienation by a group of town-based was clear. It was overwhelming. The social issue on the ground in Collingwood Bay disappeared, and was resolved a year after judgment in the National Court, by a traditional peace-making and thank you ceremony.
But once the case was in the National Court it took three years to find its way to a judgment. The probable real costs to the landowners, if there had been no pro bono work, would have been in excess of K250, 000. It took one of the judges a year to write one judgment, although it was never published because the judge lost his notes. National Court civil procedure rules are Byzantine in nature, even though they are a copy of those in effect in New South Wales. The rules favour those with long-pockets, and disadvantage landowners. While the system works, it only works after a fashion. You need to get very lucky, if you are poor and want justice.
Since the 1980s there has been a series of Ombudsman Commission Reports, and Leadership tribunal cases that point to corruption, conflicts of interest, and procedural irregularity. There were the Poreporena Road, the Port Moresby Water Supply Edu Ranu, the Murray Barracks institutional housing, the Cairns Conservatorium and the Malagunan Haus reports; Tos Barnett reported on corruption in the logging industry in 1990. Makere Morauta, before he became prime minister, described corruption as systemic and systematic. The Lands Department is notorious for corruption. Files are lost. Port Moresby solicitors have anecdotes: you want the file, you pay for it; don’t complain. As one century rolled into the next, it became apparent that grand corruption (corruption at the top) was complemented by petty-corruption- (the corruption of survival when salaries are too low, and grand corruption is so blatant).
What then is the problem?
Frankly, one expects a better quality of thought.
One expects that not be drawn into a process so fraught with danger. The danger is that a discussion of land registration out side of a critique of corruption, the fragility of the state, and the current stage of capitalist development, the neo-liberal, and now neo-conservative agenda, is very dangerous. This is so because of the risk of contamination from these agendas. They are agendas that are intellectually dishonest and morally bankrupt. They do not promote the interests of Papua New Guinean landowners; they promote the interests of a small group of very powerful interests outside of Papua New Guinea. Even though Papua New Guinea is at the periphery of the world economy, and many do not even know, or care where it is, the registration of customary land has to be seen as part of a wider process of capitalist development, as a facet of the neo-liberal agenda, and now part of the neo-liberal agenda too. These things do not just happen. They are part of processes that often have little to do with Papua New Guinea, and to understand the processes we have to got back to the past (breaking with the organizers of the Waigani Seminar), and ask basic questions about neo-liberalism. Of course it is not just the wicked capitalists. We have a “fight culture”, are “short-fused”, have our fair share of evil and of bloody-mindedness. And they are not insignificant. But I intend to leave the details of the thrust of this type of argument for another day.
Brian D. Brunton
Alotau Environment
Box 552, Alotau, PNG
alenvir@online.net.pg.
posted by ferdinand m at 8:15 pm
1 Comments:
Great article.
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