Maniwa v. Malijiwi, OS JR No. 983 of 2011 (National Court of Justice) (4 July 2014)

Maniwa v. Malijiwi, OS JR No. 983 of 2011 (National Court of Justice) (4 July 2014)

A group of customary landowners sought judicial review of a Special Agriculture and Business Lease (SABL) issued by the Minister for Lands and Physical Planning to an oil palm plantation developer.  The 99-year lease allowed the developer to clear land, harvest and sell logs, and plant oil palm. The landowners alleged that their land had been acquired by the state without proper consent and prior consultation, in violation of the Land Act.    

The Court found that the SABL was issued in breach of the Land Act’s requirements.  It declared: “There is no evidence that the Minister made reasonable inquiries to satisfy himself that the landowners did not require the land either at all or for a period before issuing the SABL to the [developer]. There was also no agreement between the landowners and the Minister for the land to be acquired for SABL.”  Para. 20.  The Court went on to criticize the consent purportedly obtained from the landowners, noting that it did not represent the wishes of the majority of landowners and that government representatives failed to adequately inform or educate community members about the effect of the lease.  Id at para. 21.

In addition, the Court was not satisfied that there had been adequate consultation.  Only one public meeting, lasting 50 minutes, was held.  “For the landowners to be sufficiently informed of the new Government policies such as introduction of SABLs which would adversely affect their traditional lifestyle; more in-depth awareness meetings should have been conducted. This could have been achieved by Government officers travelling to the SABL areas and talking to the landowners in their villages. This exercise should have been done over a period of time, say six or twelve months or even more so that the people were made aware of and understood what SABL is about, its benefits, advantages and disadvantages and so on. To me, this is the true Papua New Guinea way of consulting with people in the villages, especially where new projects are introduced in their areas and especially where SABLs would attract other projects, such as the introduction of oil palm plantations in the SABL areas. In introducing projects such as this which would have permanent and long term effect on their land, genuine and meaningful consultation with the landowners must be carried out among the landowners.”  Id at para. 23 (citing Section 5 of the Constitution). 

The Court finds that the Constitution required more significant consultation “because SABL and the related activities or projects were going to interfere with and affect their traditional lifestyle, their customary rights to land, rivers, the sea and forests. . . . [G]enerations of landowners would be affected. This is why the defendants needed to go to the villages in SABL areas and talk to the landowners, in their families clans and tribes, in the languages they could understand. If they did not understand English, Pidgin or Motu, then use interpreters to interpret things in their own languages. This to me is the Papua New Guinea way of consultation and making awareness to the landowners as in envisaged by . . . the Constitution. By doing things this way, people and their cultures will be recognized, acknowledged and respected.” Id. at para. 24.  

The Court declared the lease null and void and awarded costs to the landowners.  Id. at paras. 37, 39.