Indications are that Vai Ruma’s group has not ruled out court action. If they are successful at nullifying the contract of sale in a court of law, and if they are declared the real landowners of Harbour City, they will consider referring concerned lawyers and law firms to the Lawyers’ Statutory Committee of the PNG Law Society.

Landowners write to the post-independence national government

In order to understand the inter-generational fight, we must go right back to the beginning. The story behind this landowner campaign actually started in 1981.

At the time landowner spokesmen Toua Kapena and Boge Nao gathered together 15 other individuals representing 8 clans from Hanuabada village. These people are now all deceased. But the result of their meeting was a petition in the form of a letter dated 16 December 1981 and addressed to the Minister for Lands, Survey and Environment.

In that letter, 15 petitioners signed a statement in the following terms: “We the undersigned hereby support the claim lodged on our behalf by our elected spokesmen viz: Toua Kapena and Boge Nao for the land adjoining the Government House Reserve known as Konedobu and Kaevaga.”

The petition relies on the fact that the National Government did not have proof of purchase, and therefore their customary ownership rights were never terminated. At the time, the petitioners claimed that a search of the Registrar General’s office found no records pertaining to the sale and purchase of the Government House Reserve and the adjoining areas known as Konedobu and Kaevaga.

In their petition, petitioners urged the National Government to: “... realise the cause of deprivation of economic participation of these people on their land” and to recognise their “sense of loss of dignity through loss of land right”....

The complete list of petitioners identified in the letter’s Attachment 1 are:

Gari Dai and Steven Oala of Tubumaga Idibana clan;

Homoka Reva and Lou Eno of Tubumaga Laurina clan;

Charlie Vagi and Reva Lou of Mavara Idibana clan;

Vai Tau and Rakatani Toma of Mavara Laurina clan;

Sibona Vani and Dai Guba of Kwaradubuna Idibana clan;

Tau Lakani and Vai Hekure of Kwaradubuna Laurina clan;

Dikana Igo of Gunina Idibana clan; and

Lahui Ako Arua and Lohia Udu of Gunina Laurina clan.

The letter’s second attachment, Attachment 2, gives a handwritten and colour-coded legend and map of the area. This time the land on either side of Champion Parade is coded according to each respective landowning clan. In terms of customary ownership of the foreshore, the land from Kone Club up to the jetty and just past the jetty is identified as land belonging to both Mavara Idibana and Mavara Laurina clans.

Mavara Idibana claims the rest of the foreshore just past the jetty area. The government was given a month’s notice to reply. But as usual, none became forthcoming! It is also interesting to note that in an older map of the Konedobu foreshore area, a “native garden” appears along the foreshore area on more than one occasion. This, according to Vai Ruma, is a reference to gardens that were cultivated by Tau Sere and his children.

Fast forward to 2012 and let us see what State portions are involved, and who the registered proprietors are. Recently, members of Vai Ruma’s group conducted a title search of Milinch Granville Moresby Fourmil records at the Department of Lands and Physical Planning. They discovered  the following information.

Commenting on the Kone Club land, one Motu Koitabu lawyer said that the proper description of Kone Club is Lot 21 Section 44 Granville. He said that the land adjacent to Kone Club, which is Lot 22, is reclaimed land that has now been taken over by Curtain Brothers but was once owned by Gidare Landholdings.

It is clear that Kone Club’s initial title holder was the Konedobu Club Incorporated and the lease was and still is for commercial purposes. But the land was then transferred to Desh-Besh Enterprises Ltd in 2006. For some reason, the Kone Club land is now owned by Harbour City Holdings Ltd which is a subsidiary of Curtain Brothers.

What is not clear is how much the land sale fetched. One estimate puts Konedobu Club Incorporated’s selling price at three hundred thousand kina. If this is true, then that is how much Desh-Besh Enterprises Ltd paid to purchase Kone Club. Over time, it is Desh-Besh Enterprises Ltd that sold it to Harbour City Holdings Ltd for an unspecified amount. That is how Harbour City Holdings Ltd may have ended up with the Kone Club land.

It is also unclear which Konedobu Club Incorporated representative facilitated the land transfer. That is why the lawyer has suggested for a search to be done at the titles registry at the Department of Lands and Physical Planning.

Once the contract for sale of land and the transfer instrument are sighted, then one is able to identify the signatories to these documents that signed for and on behalf of Konedobu Club Incorporated.

The lawyer says that it is those who signed the documents that would be the ones who "facilitated" the land transfer. If we knew their identities, the next question to ask is: did they have the legitimate authority to sign on behalf of the Konedobu Club Inc?

The other State portions did not give evidence beyond the search results.

Landowners write to the national government ... yet again!

As they had done in December 1981, the Tau Sere descendents wrote to the National Government to the Minister for Labour and Industrial Relations Mark Maipakai repeating their claim over the State’s unlawful acquisition of the Government House Reserve and the adjoining areas known as Konedobu and Kaevaga. In a letter dated 27 February 2008, they wrote as the Tau Sere Land Group Incorporated through Secretary Nou Pipi.

This time the government showed some humanity. By his response of 4 March 2008, Minister Maipakai shared the landowners concerns and stated:

“... Having gone through the letter, I am very much appalled in the manner the State and all other stakeholders have acted unlawfully in the acquisition of your land... I have this instance written to the Deputy Prime Minister who holds the lands portfolio [Sir Puka Temu] to address your issues and concerns which I consider are very serious and thus require corrections immediately... Firstly, your original submission (Return of your Customary Land) pertaining to Allotments 4,5,6,7,8,10,21, is an alienated land during the colonial era. The fact that there is no Deed of Attestation is sufficient evidence of your claim... Secondly, your recent concerns for assistance on Allotment 25 [i.e. Harbour City] regarding the nature of the compulsory acquisition (land reclamation over the sea) of the shoreline and its surrounding sea without your consent is a violation of your customary rights, as stipulated under the Land Act 1996...”

It is clear that the Somare-Temu Government did not take heed of Minister Maipakai’s letter, despite assurances that he had written to Lands Minister Temu. And like the Hanuabadans’ attempt in 1981, the government’s indifference was a disappointment.

The government’s actions can only go so far to say that the State is not prepared to reverse land decisions perhaps out of a rational fear that if they submit to such demands, government installations will go into non-government ownership and its usefulness and purpose will diminish. But this rationale misses the point; that urban landowners which have substantial evidence to prove the government’s lack of ownership should be given a fair hearing.

It seems the National Government is driving the same message to customary landowners irrespective of whether or not they are urban landowners. The government’s mindset was summed up by current Secretary of the Department of Justice and Attorney General Dr. Lawrence Kalinoe in 2004 in the following terms:

“In many instances, if not all, the lands are either urban or peri-urban in location but have long ceased to be held under customary title and are now alienated and no longer owned by them, but by the State. The customary landholders have in actual fact ceased to be landowners when the land was previously sold (to the State by their forefathers). Rather, they are now "former" customary landholders.”

As rational as it sounds, it still does not extinguish the argument that in 1981, the State did not have records pertaining to the sale and purchase of the Government House Reserve and the adjoining areas known as Konedobu and Kaevaga.

If it is still the case, then how can the Konedobu and Kaevaga foreshore and offshore be titled and leased by the State even in this day and age. This is what Vai Ruma’s group wants to correct. It is the same cross that they have inherited from their fathers and grandfathers.

Commercial developments

In August 2006, Curtain Bros Papua New Guinea Limited proposed a Memorandum of Understanding (MOU) to landowner claimants of Mavara Idibana, Mavara Laurina, and Kahanamona to develop a substantial area of the offshore just beyond State Portions 4, 5, 6, 7, 8, and 10. However, talks stalled and the MOU was never signed.

Then earlier this month, workmen arrived at the site of Portion 10 and began erecting corrugated iron fencing between portions 21 and 8 thereby closing off Champion Parade pedestrians from trespassing into Portion 10. The pedestrians are mainly people from the nearby settlement communities that use the area in front of Portion 10 to market takeaway food, betelnut, and cigarettes to passersby.

Vai Ruma says the fence may have been erected to prevent trespassers from congregating on Portion 10 to play chance games and to consume beer. It is not clear as to who instructed the erection of the perimeter fencing. There are unconfirmed reports that a company called Fikor Limited is involved.

A historical extract dated 20 December 2010 from the PNG Companies Office states that Fikor Limited used to be formerly known as Kurada No.7 Limited. With one share each, the Fikor Limited shareholders at the date of the extract were Rio George Fiocco, Moses Samboro Koiri, Kerenga Kambriyupo Kua, and Kisakiu Pomalat Posman.

It appears that each company shareholder is actually a partner in the Posman Kua Aisi law firm. It is also clear that Kerenga Kambriyupo Kua is the President of the PNG Law Society.

There is confusion as to how a company such as Fikor Ltd came to own Portion 10. Regardless, Vai Ruma’s group would like to engage with the current leaseholders of all portions concerned, including Portion 10, to discuss a way forward.

He is concerned that bringing a court case to cure this problem is a waste of time and money. Rather, all parties should come together for a round table discussion and failing which they should agree to alternative dispute resolution.

Land law and policy reform

Given the trail of broken promises made by successive governments over the years, there is simmering interest for law reform. The Boka Kondra Bills, authored by senior lawyer Peter Donigi, were an unsuccessful attempt on the floor of parliament to share resource ownership with customary landowners, and provincial and local level governments.

The Bills comprised proposals to amend the Land Act, the Oil and Gas Act, and the Mining Act. A significant proposal was for the abolishment of the Mineral Resources Development Corporation (MRDC), and its replacement by clan companies incorporated in line with legislative requirements proposed in the same amending bills. Sadly enough, they were never passed, although the proposer and Member for North Fly Boka Kondra is now with the O’Neill-Namah government.

Yet another lawyer pushing for law reform is candidate for Wewak Open Electorate in the 2012 National Election Josepha Kiris. Land rights are one of two platforms she is promoting, and she wants to “melanise” Papua New Guinea’s land laws and policies. Ms Kiris was asked as to whether there was a difference between hers and Mr Donigi’s ideas, and her response was that:

“Donigi's is focusing on natural resources and valuables! I am looking at realty per se. Sovereignty of the State should be legitimized and validated through acknowledging the sovereignty of the mini sovereigns, e.g. the iduhus, anywhere in PNG!”

Over Facebook exchanges with Ms Kiris, one got the impression that she is after a system in PNG in which the English common law principle of eminent domain will be abolished and replaced with an acceptable but Melanesian model or models.

“As you know, eminent domain is the English Common Law principle that gives the crown ownership of all land within its sovereign territory. That principle is fine for England; not for us Melanesian nations. It is contrary to all First Nations view of their land. Other countries have a First Nation minority!

“In PNG, we are First Nation, indigenous people with Majority control of our sovereign State, Papua New Guinea! However, the English principle of eminent domain is denying our sovereignty as First Nations people! So, let us "melanise" the principle of eminent domain.”

Ms Kiris told said that as a member of a Papua New Guinean clan, she herself has also suffered at the hands of land alienation. This is attributable to the land acquisition decisions made by the colonial German administration in her area in the East Sepik province. She also faces the threat of losing land to in-migration of outsiders seeking government service in towns.

As if anticipating the plight of Vai Ruma and his group, Ms. Kiris argues that a court of law does not solve land issues permanently. So there needs to be another way to protect landowner rights.

“I firmly believe that going to a court of law to dispute ownership is a lost cause. But, political and legislative intervention is needed. That is why I am getting into politics. I hope you will vote for Motu Koitabuans or those friendly candidates to carry your cause through the legislative and executive arms of Government. That's where our hopes and our answers lie.”

Ms Kiris explained how the principle of eminent domain can be melanised:

“The State should not be a landowner! The State is the sovereign of a sovereign territory measured as our national boundary with other sovereign nations of the world. The State is a fictional entity created by operation of International Law.

"When we became independent as a nation, a system of government was copied wholesome and superimposed on a collection of Melanesian people of many "mini sovereignties", and described as tribes, clans or 'vunatarai's for Tolais and 'iduhu's’ for the Motu Koitabu people.

“Let all citizens of PNG recognize that first before we all can "reconcile" and chart a new vision of sharing between the fictional entity that is the State, and the different Melanesian entities that are the landowning groups. That is when the principle of "Eminent Domain" will be melanised and this great nation of a thousand tribes, vunatarais and iduhus can move forward powerfully into the global capitalist world as the independent and sovereign State of Papua New Guinea!”

Ms Kiris also insisted on a minimalist government in Papua New Guinea: “The State should be left to its role as regulator and tax collector! The State should never be a Land owner! In the form it is at the moment, the "eminent domain" principle gives the State exclusive power over its entire territorial domain including the seas.”

Ms Kiris is adamant that it is the National Goals and Directive Principles (NGDPs) that we should focus on; not English common law principles. So in a sense, she may be saying that the current backlog of generational land disputes such as the one presented by Vai Ruma’s group is symptomatic of the current constitutional quagmire, and that this needs to be cured.

Perhaps when Ms Kiris becomes a lawmaker, parliament will in time melanise land law and policy through constitutional and statutory amendments to existing laws. This is a faint hope given the fact that the Boka Kondra Bills started with a bang and ended with a thud!

Meanwhile, back at Hanuabada village Vai Ruma and his cousins look at their children and think about their children’s children. Despite the lack of success by those that came before them, these second cousins are confident that justice will prevail, and that they will get a fair deal out of their traditional foreshore and offshore.

And they want the State and current leaseholders to know that as customary landowners, they are entitled to the annual rentals collected by the State or the lease and sub-leaseholders. And that the land law and policy in Papua New Guinea must reflect their traditional ownership rights both in theory and practice.