SABL52JEREWAI 30/11/2011 1 TRANSCRIPT OF PROCEEDINGS Commission of Inquiry into SABL Department of Prime Minister & NEC P O Box 639 WAIGANI. NCD Papua New Guinea Telephone: (675) 323 7000 Facsimile : (675) 323 6478 __________________________________________________________________________________ 10 COMMISSION OF INQUIRY INTO SABL MR ALOIS JEREWAI COMMISSIONER JEREWAI 20 MURUK HAUS, WAIGANI, WEDNESDAY 30 NOVEMBER 2011 AT 9.10 AM (Continued from Tuesday 29 November, 2011)
Transcript
SABL52-‐JEREWAI 30/11/2011 1
TRANSCRIPT OF PROCEEDINGS Commission of Inquiry into SABL Department of Prime Minister & NEC P O Box 639 WAIGANI. NCD Papua New Guinea
MURUK HAUS, WAIGANI, WEDNESDAY 30 NOVEMBER 2011 AT 9.10 AM (Continued from Tuesday 29 November, 2011)
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[9.10 am] COMMISSIONER JEREWAI: Good morning everyone.
MR GELU: Good morning.
MR OVIA: Morning Commissioner.
COMMISSIONER JEREWAI: Yes, Mr Boi, where do we go from here?
MR BOI: Commissioner, the continuation of the hearings of the Commission of Inquiry into the SABL granted to Purari Development Association, portion 8C. We propose to call three more witnesses for this SABL. (1) I am advised by the counsel representing the Association; the Elk Antelope Gas Project Landowner Association, Mr Ovia, that the Secretary Mr Jomo Puari, who has signed the submissions and who has been summoned could not be located but he has left 10
message for him to come.
But in any event we will proceed to two other associations who have filed their objections. The first witness is Joseph Kenekao, he is the chairman for Kaimare Association. Joseph, stand up. JOSEPH KENAKAO, Sworn:
XN: MR BOI
[9.13 am] Q: Witness, can you very briefly state your name and position for the record of the Commission?
A: My name is Joseph Kenakao. I am the chairman of the Kaimare Association 20
Incorporated which represents one of the major tribes in the Baimuru District.
COMMISSIONER JEREWAI: Sorry, what is the name of the tribe?
A: Kaimare and I want to say that it is spelt K-a-i-m-a-r-e.
Q: Go on.
A: There is more, lot of reference to the nine tribes in Baimuru. One of the tribes is Kaimare.
MR BOI: Kaimare is one of the nine tribes in Baimuru.
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A: Correct.
Q: You are the chairman of the Association?
A: Yes. The tribe has 53 registered ILGs. This ILG registered under an FMA which is within portion 8C, FMA is the Forest Management Agreement. It is also within portion 8C, current.
Q: Mr Kenakao, can you confirm that you have made a submission or your Association has made a submission to the Commission of Inquiry objecting to the value of this SABL?
A: I have on behalf of my tribe.
Q: You have a copy of that submission with you? 10
A: I have.
Q: Is that your submission entitled, “The Kaimera Association”, the chairman, address; Commission of Inquiry, Special Agriculture Business Lease, submission by Kaimera tribe on portion 8C, milinch Ivauri, fourmil of Kikori and Karamui, Gulf, granted to Purari Development Association, dated 29 August 2011.
A: Yes, it is.
[9.16 am] Q: For the record, before we tender it formally, can you take us through that submission for the record to record the basis of your submission.
A: You want a brief or do you want me to go through it in --- 20
Q: If you can paraphrase, you could ---
A: Basically, my submission, I am saying that my tribe has never consented to our lands being given over to or under this lease to PDA. They have never consented. The whole 53 ILGs have never consented. And secondly, if I may, the tribe has never given its mandate to PDA in whatever form. We would like to also suggest that the manner in which this lease has been obtained is fraudulent and harbors on maybe criminal intent.
Q: And your Kaimare Association, is it affiliated to anybody or is it on its own?
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A: Yes, we have in our submission a letter from ILGs that constitute my tribe saying that we affiliate to the Baimuru District Resource Owners Association Incorporated.
Q: Baimuru District ---
A: Resource Owners’ Association.
[9.19 am]Q: What would you say is the ---
COMMISSIONER JEREWAI: Is Baimuru Resource Owners Association Incorporated?
A: It is. There is ………. Association that also claims to represent the nine tribes of Baimuru. 10
MR BOI: Can you indicate to the Inquiry, what was the - what would you say is the total population of the Kaimare tribe?
A: I do not know, exactly. We have six villages, very big, between 2-3000 people in Baimuru and there is another 1,000 in Port Moresby.
Q: And is it ---
COMMISSIONER JEREWAI: Where does that all add up to approximately?
A: About 4000.
MR BOI: And you say none of those 3-4000 people were consulted, nor did they give their consent to the establishment on a grant of this SABL?
A: In with regards to land, individuals do not usually give consent, it is either 20
the clan or the tribe. In my view none of the clans in my tribe or let alone my tribe has not given any consent whatsoever.
[9.21 am] Q: What portion of the SABL area or percentage would you say is land which belongs to the Kaimare tribe?
A: I am going to suggest because I have not done actual – about 10, 15, 20, between 10 and 20 percent.
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Q: I have a map of the SABL area here, sorry, wrong map. The evidence before the Commission so far suggests that there was no recent – let me say recent land investigation report or investigation done to facilitate for the SABL. That much has been established but nevertheless, a lease has been signed; a lease from the landowners to the State, which is the section 11 head lease has been signed by various landowners and in there, there are three representatives of the Kaimera tribe who have signed.
[9.24 am] Kana Geno from Kaimare tribe Mariki village, Koe Mapu, Kaimare tribe and Dickson Iva. Those three have signed despite what you have just told the Commission that none of your people have consented to this. 10
Apparently these three members of your tribe were aware of this. What do you say to that?
A: Counsel, if you see beside their titles, they call themselves chiefs. I am suggesting these people have never been to Baimuru in the last 10 years, three of them. They are permanent residents of Port Moresby, they have no standing whatsoever in my tribe, anywhere as well. They were picked up from the streets of Port Moresby to sign this document. It did not surprise me yesterday when I heard that this document is signed in Port Moresby because if they had taken it to Baimuru, nobody in his right mind would have signed this document. So they picked them up on the streets of Port 20
Moresby, no standing in my tribe, caused them to sign and even made them chiefs. They are not any chiefs in my tribe, these people, they are nothing.
Q: These people do not really represent the – you say they do not represent the Kaimare tribe of the 2-3,000 or 4,000 members of the Kaimare tribe?
A: They did not represent anybody except themselves.
[9.27 am] Q: I will just show you ---
COMMISSIONER JEREWAI: Mr Kenakao, if we have had the benefit of the file from the Department of Lands there would have been an instrument which will indicate these three persons as having been appointed as agents irrespective of what their titles may be in your village. But without the benefit of that document, 30
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do you recall if any instrument appointing these people as your agent had ever been executed?
A: If there was, we probably would have sighted one. There is not. I am not aware of any document that we have signed that gave them the power to be agents.
Q: To your knowledge and in your belief no such instrument had been executed?
A: No such instrument have been executed.
Q: Counsel, go on.
MR BOI: Just for completeness, going back to my earlier question in relation to 10
the percentage of the area of the SABL which belongs to the Kaimera tribe, I have a map of the SABL here which I am going to give it to you and you will indicate to the Commissioner the Kaimare’s tribe’s ---
A: It is along this river.
COMMISSIONER JEREWAI: What is the name of the river?
A: We call it Pia River. I think in the map it is called Popomedi or something like that. It is on both banks is the east and west of the river, up this way, portions of land here.
Q: And the whole area there is portion 8C?
A: From here, I think. 20
Q: All part of it?
A: Yes. It is within ---
MR BOI: That is portion 8C.
A: The whole land is within portion 8C.
Q: Thank you.
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[9.30 am] COMMISSIONER JEREWAI: Will you be able to just help tell us which tribe Mr Roy Evara is a member of?
A: He is from the Iare tribe.
Q: Mr Roy Evara also said there are nine tribes within or near the SABL described as portion 8C.
A: He did not name them, did he?
Q: He did.
A: He did, okay.
Q: He did. And you also say that there are nine tribes but among them is yours also, Kamere. 10
A: Kaimare.
Q: Kaimare, rather. Go on, counsel.
MR BOI: Just so there is no doubt as to your capacity to give evidence to the Inquiry, how were you elected as chairman of this association?
A: I was elected by the members of my tribe who live in Port Moresby.
Q: Sorry, I ---
A: I was elected by members of my tribe who reside in Port Moresby.
Q: Did your tribe have a preference as to who decides SABL should be granted to, which body or persons would your association and tribe prefer?
A: If you are talking about the 3000 and 4000 people, you are talking about 20
children and women, elderly people who, that decision might be hard to come to say straight away give it to this person or that person. You must go and explain to them what is SABL is all about and then they will make a decision to whether to grant it somebody or not to grant it or whatever. So I cannot say that you know, you should give it to this fellow or that fellow until and unless they have been informed about why the SABL has been sought and they will make a decision.
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Q: Just one final question in relation to the signing of the head lease, in that case signing by the three persons from your tribe which I alluded to. Were you, as chairman of Kaimare Association, were you made aware that this document; the lease document releasing the land from your people to the State will be signed? Were you made aware or did you come across any information of that sort?
[9.34 am] A: I was never made aware of any of these.
Q: Were there any other members of your tribe or the other ILG chairmen, were they made aware or were they part of this effort to have the SABL granted?
A: None of them. 10
Q: Commissioner, I have no further questions with this witness.
COMMISSIONER JEREWAI: Yes. There is an oversight. I should have noted the presence of counsels representing various parties this morning. I do note that Mr Zachary Gelu is appearing again for the Purari Development Association Incorporated and also Mr Erik Andersen for Inter Oil and Mr Ovia for, could you restate the name of your client’s name, please, Mr Ovia?
MR OVIA: Mr Commissioner, I am appearing on behalf of Elk Antelope Gas Project Landowner Association.
COMMISSIONER JEREWAI: Right, Elk Antelope Gas Project Landowners Association. Have you any questions, have any of you any questions for the 20
witness?
MR GELU: Mr Commissioner, a few questions to ask. COMMISSIONER JEREWAI: Mr Gelu, yes. XN: MR GELU
Q: Witness, the counsel assisting Commission have indicated to you that there are three members of your clan, Kaimare clan ---
A: Kaimare tribe.
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Q: Kaimare tribe signed the head lease. Do you know this person, sorry, Commissioner, Kemea Imao? Do you know him?
A: Yes.
Q: Is it not your big brother?
A: Commissioner, can the counsel define the word ‘big brother’?
Q: I am asking you a question?
COMMISSIONER JEREWAI: He is asking ----
A: Well, I am asking the question.
Q: He is asking you can tell him if he is not or if he is.
A: He is not, he is not. 10
MR GELU: You have already told the Commission that your chairmanship as chairman of Kaimare were obtained by people living in Moresby who are members of Kaimare tribe who elected you. Is that true?
A: That is true.
Q: What about the Kaimare tribe members who live at Baimuru? Are they aware of this election of you becoming the chairman?
A: They are 100 percent. The 53 ILG chairmen are aware that I was elected chairman of the Association.
Q: How did they become aware?
A: There was a meeting in Mariki village, if you know where that is, where all 20
of them gathered to endorse me as their chairman. 2007.
Q: Where was the meeting took place?
A: In Mariki village.
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Q: Commissioner, witness, you have told the Commission that you were elected in Port Moresby. How would be that meeting took place in Baimuru in Mariki village?
A: Your questions are misleading counsel. You asked where did the meeting to endorse, where was the meeting for the tribe to endorse you as chairman taken, the place. And I said Mariki not where did they elect you as chairman. That is why I answered it Mariki.
[9.38 am] COMMISSIONER JEREWAI: Ask your questions counsel. Ask those questions first of all the election.
MR GELU: Yes. Witness, the election of your chairmanship is very important 10
before this Commission of Inquiry to, this is why I am asking these questions.
COMMISSIONER JEREWAI: Ask the question, where was your election held?
A: In Port Moresby.
Q: And where were you endorsed after you were elected?
A: In Mariki.
Q: What dates or if you can remember, when exactly or approximately when those events took place?
A: I can remember because I took my mother’s dead body home at that time so I cannot forget, towards the end of 2007.
Q: No, election first, election first. 20
A: Election was, sorry, I cannot think of the exact declared date of my – but I can give you the minutes of the meeting if I am given the time.
Q: You have it?
A: I have but here with me now but I can---
Q: All right, I suggest after you step down, you go and bring minutes of that meeting. And approximately when did you, were you endorsed at your village?
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A: After, towards the end of 2007. I have minutes of the meeting as well. I can furnish them to this Commission.
Q: Right. Go on Mr Gelu.
MR GELU: Mr Commissioner, another question. Kaimare tribe, is it not one of the tribes mentioned by Mr Evara? Kaimare, your tribe is not one of those nine tribes within Baimuru District?
A: It is.
Q: Witness, Kaimare tribe as indicated is affiliated to PDA who is the lease holder of this SPABL. What would you say to that?
A: Where is the documentation to show that? Present it and we will all say yes 10
or no because I am going to suggest that there is no such documentation, there is no such Kaimare tribe affiliated to PDA whatsoever.
Q: Witness, you have told the Commission that the SPABL may have been fraudulently obtained.
COMMISSIONER JEREWAI: It is an SABL.
MR GELU: SABL.
COMMISSIONER JEREWAI: There are two distinct types of leases in the Land Act; SPABL relates to State land which are defined as Special Purpose Agricultural Leases whereas SABL stands for Special Agricultural and Business Leases. So just in your questions, just be sure you are asking about the right kind 20
of lease.
MR GELU: Thank you Commissioner. Here, the lease that has been granted to Purari Development Association Incorporation, you have indicated to the Commission that it was obtained fraudulently. Are you sure that it was obtained fraudulently?
A: My wording Commissioner, will suggest. So whether there is an indication or not I am not sure but I am suggesting.
[9.41 am] That is for somebody has to confirm or not.
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COMMISSIONER JEREWAI: You are merely suggesting.
MR GELU: Witness, there are other two people mentioned here in this head of agreement; Dickson Aiwae. Are you aware that he has been a member of PDA since the inception of PDA? Are you aware of that - a member of your tribe?
A: I am not aware. If there is a receipt to show his membership to being paid or whatever then maybe he can show that but as far as I know, I am not aware that such a membership exist.
Q: The counsel assisting the Commission has spoke to you if this lease is to be granted, which entity do you like this lease to be granted to?
A: That decision is dependent on my tribe after they have been informed. 10
Maybe, you did not hear what I - how I replied to the counsel. That decision must be made by my tribe after they have been informed, they have been made aware of, why you are giving this lease or why we are getting this lease. At the moment they are not so I cannot say who he should give it to.
Q: Witness, the lease is given to a specific entity, in this case, that is Purari Development Association Inco and you have other associations involved. Which particular association do you ---
A: Sorry Commissioner, I answered that ---
[9.44 am] COMMISSIONER JEREWAI: I think the witness’s answer is fair because section 102(2)(b), let me just refer to it. It says; “Special Agricultural and Business Lease 20
shall be granted to a person or persons or to a land group, business group or other incorporated body to whom the customary landowners have agreed that such a lease should be granted.” The imperative words are, “the customary landowners have agreed that such a lease should be granted to.” I think the answer by the witness is fair. He is saying he cannot say but with the full participation, and I should go so far as saying, full and informed participation of the members of his tribe, they can choose the entity which they may agree to, to hold title to an SABL.
MR GELU: How long have you been to Baimuru? Have you been to Baimuru recently or sometimes ago?
A: Yes. 30
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Q: When? How long ago?
A: I was there in April.
Q: Do you live in Baimuru or you live in Port Moresby?
A: I am in Port Moresby.
Q: Witness, I put to you that you would not appreciate the aspirations of the Kaimare tribe members in Baimuru, would you?
A: You are not from Kaimare so you cannot ask that question. I think it should come from the leaders of the Kaimare – the ILG chairmen of the Kaimare tribe and you should not ask that question. You should ask my tribe, my 15 other chairmen and they shall answer the question. 10
COMMISSIONER JEREWAI: Witness, he has asked the question, do you, he is suggesting to you that you would not understand the aspirations of your people because you live in Port Moresby. You should answer to that.
A: I would understand the aspirations of my people and every aspiration, I understand.
MR GELU: Commissioner, I have no further questions. Before I sit down, I seek leave to excuse myself. I have a committal matter to attend to at half past nine. I will be back, Mr Commissioner.
COMMISSIONER JEREWAI: Very well, Mr Gelu.
MR GELU: Thank you. 20
COMMISSIONR JEREWAI: You are excused. You may come back later when you are done.
MR BOI: Thank you Commissioner. That, it was an oversight in my area. I wish to – the witness has already identified his submission to the Commission. I wish to have it formally tendered into the records of the Commission, it contains what is said in some of the supporting documents he has.
COMMISSIONER JEREWAI: Yes, for the purposes of findings and recommendation in respect of each, in respect of the Inquiry into individual
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SABLs, we will require to have all submissions tendered as exhibits so that they are in order for us to quickly revert to in our final report. Could you have it formally tendered?
MR BOI: Yes, I formally tender the submission by the chairman of the Kaimare Association which he has already identified as part of the record of the Commission.
COMMISSIONER JEREWAI: All right, what is the date of that?
MR BOI: It is dated 29 August 2011.
[9.48 am] COMMISSIONER JEREWAI: All right, that will be exhibit - that will be accepted as exhibit D. 10
[EXHIBIT D – PURARI DEVELOPMENT ASSOCIATION INCORPORATED, PORTION 8C, KARAMUI AND KIKORI, GULF PROVINCE]
MR BOI: Commissioner, that brings us to the end of this witness’s evidence. Could he be excused?
COMMISSIONER JEREWAI: All right, Mr Kenekao, you are excused. Thank you for your evidence.
A: Thank you.
THE WITNESS WITHDREW 20
MR BOI: Commissioner, the next witness is Mr Ali Avai Valili.
COMMISSIONER JEREWAI: Sorry?
MR BOI: The next witness is Mr Ali Avai Valili. He is the president of Baimuru District Resource Owners Association.
ALIAVAI VALILI, Sworn:
XN: MR BOI
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Q: Witness, can you for the record give your full name, status and association, organization you represent?
A: Thank you.
[9.51 am] My name is Ali Avai Valili. I am from Akoma village, Baimuru District of Gulf Province. Commissioner, I am the duly elected president of Baimuru District Resource Owners Association. This Association is the umbrella association mandated by the nine tribes of Baimuru District and my election was on 25th and 26th February 2010. The election took place in Baimuru Local Level Government chambers, conducted by Baimuru District, Baimuru Local Level Government, witnessed by all the members of the 10
LLG together with the president Honourable John Akairi.
Also in witness were the officials from the office of the Governor for Gulf and the Gulf Administration. Also in witness of that election were the nine tribes of Baimuru District and I represent the entire Baimuru District as the duly elected president of that district, in this case, Baimuru.
COMMISSIONER JEREWAI: Counsel count them quickly how many associations are there now, apart from the titleholder?
MR BOI: In the, you mean the - there are many ILGs.
COMMISSIONER JEREWAI: No, associations.
MR BOI: Associations, this is the --- 20
COMMISSIONER JEREWAI: Fourth or fifth?
MR BOI: Third one.
COMMISSIONER JEREWAI: Third?
MR BOI: Third one; PDA, Kaimare and this is the third one, which ---
COMMISSIONER JEREWAI: Yes, but Elk and Antelope?
MR BOI: Elk Antelope, yes. It is - that is four. That would be four, yes, sorry, Commissioner.
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COMMISSIONER JEREWAI: Go on, witness.
A: Commissioner, my grounds of ---
MR BOI: Mr Valili, you confirm that you have made a lengthy or a bulky submission or affidavit in relation to associations’ position on this SABL?
A: Yes, sir, I did.
Q: And that document is dated 9 August 2011?
A: Yes.
Q: Do you wish to get it briefly, for the record this document will be tendered at some stage but for the record and very briefly explain to the Commission of Inquiry the basis of your objection to this SABL’s granting or otherwise or 10
to PDA the basis of your objection – Association’s objection?
[9.55 am]A: Thank you counsel. Commissioner, the basis of my objections are basically in three major parts, three major rounds. (1) the title was awarded to an association which does not have the mandate of the people. (2) non-compliance of requirements or procedures in forces, in particular, landowner identification report, landowners’ consent and land investigation report, very sketchy. Number (3), would be ---
COMMISSIONER JEREWAI: Did you say sketchy, land investigation report that was sketchy? Sketchy or there was none done?
A: There was none done but the one that is before me which I have --- 20
Q: All right, it is in your affidavit.
A: That is why I said sketchy.
Q: That is the land investigation report?
A: It is not a land investigation report. It is a genealogy study.
Q: It is a genealogy study.
A: Conducted in 1984.
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Q: Yes, that is your second ---
A: My third part, grounds of objection is false representation by – false claim of representation by PDA.
Q: Go on.
MR BOI: You can continue and elaborate on those objections.
A: Thank you. My first ground would be that this lease SABL was granted to Purari Development Association. As I have explained myself, my position is clear I was mandated. I have no idea whatsoever as and when PDA officials were mandated and where.
COMMISSIONER JEREWAI: Mr Valili, so far I note your appearance on the 10
witness stand as president of Baimuru Resource Association and I am not going to allow this Inquiry to go down that track in attempting to determine which association really has the mandate of the people. So can I have you indicate which tribe you belong to so as to give you a standing to tell me if your tribe participated in agreeing to the grant of the lease to PDA incorporated or not. So let us get to that.
A: Thank you.
MR BOI: Witness, Mr Valili, the Commissioner has asked you to the question which tribe are you from?---
A: Commissioner, I --- 20
Q: Are you from?
A: I am from Iare tribe.
[10.00 am] COMMISSIONER JEREWAI: This is the same tribe as Mr Roy Evara?
A: Yes.
MR BOI: Witness answered the question as to on the - you are from Iare tribe so the basis of this objection, is it as a member of the Iare tribe or as president of the Baimuru District Resource Owners Association which is the association comprising of members of the landowning group?
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A: Thank you counsel. I am the president of the Association. I will represent, present these cases, president of the associate and as an individual with vested interest in the land. I feel I have the right to present myself as a person and as member of a clan.
COMMISSIONER JEREWAI: Tribe and clan?
A: Yes, tribe and the clan.
Q: I think they come down in that order.
A: Yes.
MR BOI: Well then you could perhaps continue to explain the basis of your three objections, now that your position in the landowning, the --- 10
COMMISSIONER JEREWAI: Yes, if I may ask you. Which clan do you belong to within the Iare tribe?
A: I belong to Kairilavi clan.
Q: Sorry?
A: Kairilavi clan, one of the major clans in Iare tribe.
Q: Of Kairilavi?
A: Yes.
Q: Lavi clan. And do you know which clan Mr Roy Evara belongs to, is a member of?
A: He is from Airanairu clan. 20
Q: And you say Kairilavi clan is the major clan within the ---
A: Is one of the major clans in Iare tribe.
Q: Iare tribe.
A: Yes.
Q: And the Iare tribe is one of the nine tribes?
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A: Correct.
Q: Within Baimuru?
A: Yes, it is the major tribe.
MR BOI: The seven major, you say that your second, major second objection to the grant of this SABL is the non-compliance with the requirements, regulations, the land investigation report and so forth.
COMMISSIONER JEREWAI: Perhaps, counsel, if you can have his affidavit tendered and you refer him to the documents you will be taking him through.
MR BOI: Very well. Witness, can you – do you have your copy of your affidavit there? 10
A: No, I have only one, counsel. I have only one.
Q: That is all right. You have a look at it. See, is that the same one I have here?
A: Yes.
Q: That document is sworn on the 9th where it is entitled, “Affidavit of Submission to Revoke Lease Portion 8C, Fourmil Kikori from Baimuru, well, it has got your name there, Ali Avai Valili and Baimuru Resource Owners Association. That is the cover page. And it has got your, from page 2 to 9 is the affidavit and it has got your signature at the bottom. You identify that as your being your signature and duly sworn? 20
A: Yes.
Q: Commissioner, I formally tender this witness’s affidavit or submission, letters and affidavit.
[10.05 am] COMMISSIONER JEREWAI: All right. Mr Ali Vailili’s affidavit sworn on 12 August 2011, and this morning---
MR BOI: Sorry Commissioner, sworn on the 29th.
COMMISSIONER JEREWAI: Sorry, 29 August.
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MR BOI: 29 August.
COMMISSIONER JEREWAI: Rather sworn on 29 August 2011 is accepted into evidence and is being marked as exhibit E. Purari Development Association Incorporated, Karamui/Kikori, Gulf Province.
MR BOI: Thank you Commissioner.
COMMISSIONER JEREWAI: Sorry, before Karamui/Kikori is portion 8C, Karamui/Kikori, Gulf Province. [EXHIBIT E – MR ALI VAILILI’S AFFIDAVIT SWORN ON 29 AUGUST 2011, PURARI DEVELOPMENT ASSOCIATION INCORPORATED, 10
KARAMUI/KIKORI, GULF PROVINCE] Take him to the document you are referring to in the affidavit.
MR BOI: In your brief summary to the Commission, you said you had three basis for yours objections. The first was that it was not awarded to the appropriate association and then it was yours but which the Commissioner has indicated he was not going to go down that track. The second basis of your objection you say was non-compliance with requirements and regulations. Can you elaborate on the basis of that objection?
A: Thank you. Commissioner, upon learning of the SABL been granted to 20
PDA in February, there was an investigation which this association did with the Department of Lands together with the leaders and the tribal association representatives. We, this association, found out from Department of Lands, the officers responsible, there were three main officers; the responsible officers in this case, it is Lazarus Malisa, manager for Land acquisition, Sharon Kila, customary land lease and Andy Malo, director of that section.
COMMISSIONER JEREWAI: Andy Malo.
A: That is right. We had three separate meetings with them and these were on the 4th, 9th and 11 of March. All these meetings were attended by leaders of individual tribes of Baimuru District together with the association. These 30
meetings were held in Lands Department, these three meetings.
SABL52-‐JEREWAI 30/11/2011 21
[10.08 am] This association together with the other association; tribal associations lodged complain and the complain letter was dated 25 February, which I have it on my documents.
COMMISSIONER JEREWAI: In your affidavit?
A: In my affidavit, yes.
Q: Counsel, what annexure is that?
MR BOI: It is complaint letter dated - witness, 26 February, did you say?
A: 25 February.
COMMISSIONER JEREWAI: It is all right. It suffices that the date is given.
MR BOI: Yes. The letter is mentioned but the annexures is not marked. 10
COMMISSIONER JEREWAI: That is fine. Date of the letter is given, it is somewhere in there.
A: The letter was received and sighted by Lazarus Malisa. Commissioner ---
Q: In that letter you complained about the issue or rather the grant of the lease to Purari Development Association Incorporate?
A: Yes, we did complain on the basis that this particular lease, the land, the subject land is the customary land, communal to many, many clans within the nine tribes of Baimuru District who have overlapping interests of portions of land that is now in question. This Association received numerous complaints from the tribes that they were not consulted, they were 20
not aware of any application or anything that was submitted by Purari Development Association to obtain this lease. We also note that during that meeting, there were admittance by these three officers stating that they were at fault because they were constantly pressured by their boss, in this case, Romily Kila-Pat to have this title, documents executed expeditiously.
[10.12 am] After meetings with the three officers we were asked to immediately stop the title so we did apply for a caveat order. So the caveat order was put in place on 11 March on two main grounds and one of the main reasons to – one of
SABL52-‐JEREWAI 30/11/2011 22
those two were that PDA did not have the mandate to represent and have the title; two, non-compliance of requirements. Those grounds were as per advice by the three officers.
THE COMMSSIONER: Sorry, when was the caveat lodged?
A: Caveat was lodged on the 11th and immediately after that the caveat ---
Q: Sorry, 11th of ---
A: 11th of March.
Q: March, this year?
A: Yes. And so the caveat was put in place, the registrar and the deputy registrar signed for that caveat. Commissioner, we also noted that the title 10
was actually leased, awarded by the acting deputy registrar and not the registrar.
Q: Who was that at the time?
A: Taison Asiso.
Q: Did you say acting assistant?
A: Acting deputy registrar.
Q: Acting deputy registrar, pardon me.
A: On the same day we lodged a caveat order, application for a caveat order, a letter from the manager for land acquisition, Lazarus Malisa, a minute was done to the Registrar of Titles to immediately, urgently, immediately revoke 20
this particular SABL.
[10.15 am] Commissioner, the minute is dated 11 March this year.
Q: That is from Mr Malisa to ---
A: To the Registrar of Titles.
Q: Mr Henry Wasa?
SABL52-‐JEREWAI 30/11/2011 23
A: Correct.
Q: The Registrar?
A: Yes.
Q: Of Titles?
A: The letter is also attached too in my affidavits.
Q: Yes, we will look at it. Do you know if the title had since been cancelled?
A: Commissioner, that instruction is yet to be implemented. There were three main reasons why immediate revocation was requested and one of them is the due process to procedures not been complied with. That was stated in that minute; two, PDA being an Association representing only few minority; 10
three, the subject land contains LNG Project, which Lands Department should have done a proper investigation for the benefit of the project; and four, the whole area, so massive.
Q: Over 600,000 hectares?
A: Correct, yes. And it is almost half of the district. Commissioner, this particular letter contradicts the earlier letter which this same person; Mr Malisa did in recommending for this lease to be awarded to PDA.
Q: What is the date of the earlier letter by Mr Malisa?
A: 17 January 2011.
MR BOI: Can you very briefly, quickly read the contents of that letter? 20
A: Which one in particular, sir?
Q: The letter of 17 January 2011.
A: Thank you.
[10.19 am] Q: And then read later the letter of 11 March.
A: Commissioner, the letter is addressed to the acting secretary through acting deputy secretary, customary lands. And the subject is Approval of Lease-
SABL52-‐JEREWAI 30/11/2011 24
Lease Back Instrument Over Portion 8C, Milinch of Auri, Fourmil of Kikori and Karamui, Gulf Province. Purpose - due to imminent Elk and Antelope Gas Project Purari Development Association Inc has now pushed for the whole registration of the area indicated by Department of Mining and Petroleum for the project and others for integrated agriculture projects. The total area was later surveyed and shown on registered cat. plan number 37/123, being portion 8C and having a total land area of 656,034 hectares. It is more appropriate that portion 8C be registered under Purari Development Association Inc which is more transparent and has the support of the 20,000 plus population of the area to whom the company represents is an 10
association, but in this case it has stated company.
In other words, Purari Development Association Inc. is the umbrella landowner mouthpiece for people of Baimuru sub district of Gulf Province. There has been a press on a quick registration of a Special Agriculture and Business Lease over above land by one Mr Manua Karara, a suspended executive of PDA, to which the department should not entertain. Mr Karara lodged his application basically to entertain a Chinese firm and his intention is not in conjunction with the entire population that owns portion 8C. Purari Development Association is a legal entity that was set up to safeguard the interests of the landowners. PDA has representatives from every ILGs that 20
has their share of land within portion 8C. In its committee who indicates, who decides on issues to benefit each and every one. Therefore, any dealings with Mr Karara’s after 19 October 2000, should not be entertained as he is no longer representing the people. From representative associations and ILGs, sorry, yes, from representatives, associations and ILGs have unanimously signed resolutions authorizing PDA as their mouthpiece Association to which the Lease-lease Back title be registered under.
Secretary, the Lease-Lease Back Instrument and Direct Grant Notice are herein attached to the respective land file, land file number 02028/008C and now forwarded to your office for your perusal and approval. And the 30
recommendations, the registration of the Lease-Lease Back is a straight forward matter as it is the landowners’ choice to have the entire land known as Purari Portion 8C, milinch of Auri, fourmil of Kikori and Karamui be registered under Purari Development Association. The Association is a well
SABL52-‐JEREWAI 30/11/2011 25
established Association at Baimuru, that has been in operation since 1982 and has proved to be reliable in safeguarding the resources, rights and mostly importantly their mouthpiece in social, political and economic matters.” The letter was signed by Lazarus Malisa.
Q: Well, that is the first letter of 17 January 2011 urging for a quick issue of the SABL.
[10.23 am] And you said on 11 March you wrote another letter to the Registrar of Titles requesting for a revocation of the SABL. Can you read that letter of March 11 for balance purposes into the record?
A: Thank you counsel. Commissioner, it is a minute to the Registrar of Titles, 10
from manager, land acquisition, southern region and islands, dated 11th ---
COMMISSIONER JEREWAI: It is Mr Lazarus Malisa?
A: Correct, yes. The same person. The subject of this minute is, “Urgent Revocations, Special Agriculture, Agricultural and Business Lease Over Portion 8C, Milinch of Auri, fourmil of Gulf Province.” And the letter reads, “The landowners of the above said land are demanding the revocation of the above said lease which was issued to Purari Development Association, which is a group representing a minority of the landowners from Baimuru District. Sir, the title was registered and issued to president, Mr Roy Evara of the said group by your deputy Registrar of Titles, Mr 20
Taison Asiso recently. The title must be recalled and revoked immediately due to the following reasons; (1) due process and procedures in the Lease-Lease Back process was never complied with. There is no land investigation report was conducted; (2) Purari Development Association Inc. only represents few individuals and not the majority of the landowners of Baimuru; (3) the subject land contains the second LNG Project area which requires proper land acquisition procedures especially, the identification of the land genuine owners; and (4) the area of the subject land contains approximately 650,000 hectares which is almost the whole of Baimuru District. Due to the following reasons and demands from the majority of the 30
Baimuru landowners, I am urgently requesting your office to recall the title and revoke it immediately.
SABL52-‐JEREWAI 30/11/2011 26
Sir, the title was expeditiously executed without complying with the requirements and procedures of the Lease-lease Back process. Hence, it must be revoked accordingly. Your prompt action is highly recommended. Lazarus Malisa.”
Q: The other documents in the affidavit speak for themselves?
MR BOI: Yes, there are ---
COMMISSIONER JEREWAI: Did we go through them. I can read them later.
MR BOI: Commissioner, it is mostly receipts and letters from the representatives to Lands Department.
COMMISSIONER JEREWAI: I understand. 10
MR BOI: And copies of the caveat and that. So they speak for themselves.
[10.27 am] Unless you want to, although they have their submissions in, they have presented copies of them presented to Lands Department.
COMMISSIONER JEREWAI: Mr Evara was, I realized it is probably important to get from Mr Evara the list of members of the grantee, Purari Development Association Incorporate.
MR BOI: Yes. I asked for it and he said he was going to give it today, together with meeting minutes.
COMMISSIONER JEREWAI: Has he given it to you? Mr Evara is in the room.
MR BOI: He has given to--- 20
COMMISSIONER JEREWAI: Mr Evara is in the room.
MR ROY EVARA: Commissioner, if you so desire I will give it now. I got them here.
COMMISSIONER JEREWAI: All right, I ---
MR BOI: I will finish with ---
SABL52-‐JEREWAI 30/11/2011 27
COMMISSIONER JEREWAI: I do not want this witness to be stood down. If we can have him temporarily excused and Mr Evara come in and tender the list so that we can take this witness through the membership of that Association.
MR BOI: Yes.
COMMISSIONER JEREWAI: We have four associations now. We just want to get some clarity on who really represents or who really is the mandated association. Not that it is important with regard to the process that we will have to determine as to their regularity or otherwise in the granting of the title. But just for our understanding of the wider issues, I think we need to do that.
MR BOI: Very well, Commissioner, could this --- 10
COMMISSIONER JEREWAI: We can temporarily stand down this witness and have Mr Evara come in and tender the list of members.
MR BOI: Mr Valili ---
COMMISSIONER JEREWAI: Witness, can you stand down temporarily. THE WITNESS WITHDREW TEMPORARILY ROY EVARA, Recalled: 20
XN: MR BOI
COMMISSIONER JEREWAI: Mr Evara. You are still on oath so you can approach the witness stand and give us that list. Please, sit down. Have you that list of your members, list of names of the members of your Association? A: Commissioner, I have a bulky book with all the membership paid up. But
because I was asked to bring my election minutes, the time I was ordered---
Q: No, sir, I asked you specifically yesterday for a list of your members to be produced this morning. 30
SABL52-‐JEREWAI 30/11/2011 28
A: Maybe, I misunderstood. I was asked by counsel, I heard that ---
Q: You have not got that list?
A: I got it at home but I can produce by the afternoon.
Q: No, you stand back down and you bring that list this afternoon.
A: Okay. Yes, straight away. It is a big bulk thing. Thank you.
THE WITNESS WITHDREW
[10.30 am] COMMISSIONER JEREWAI: Recall our witness. Did you take him through any other documents? 10
MR BOI: No. ALIAVAI VALILI, Continuing:
XN: MR BOI COMMISSIONER JEREWAI: I can read them.
MR BOI: Just this to which goes to show the Lands Department’s inadvertence in issuing the SABL and subsequently calling for its revocation. But witness, you were elaborating on the basis of your objection on the non-compliance aspect and you have read the letter given to or written by Mr Malisa initially requesting for a 20
speedy grant of the SABL and then subsequently requesting the revocation of the lease on the basis that there was no proper consultation. Other than that, you have anything else on the non-compliance of requirements and regulations aspect you wish to tell the Commission?
A: Not directly to the non-compliance aspect of it but on the documentation that some documentation which were also used by PDA to gain, to speak as an umbrella entity. I am sure because these documents were the influential ---
COMMISSIONER JEREWAI: Umbrella or representing---
A: Sorry?
SABL52-‐JEREWAI 30/11/2011 29
Q: As a people’s representative?
A: As a people’s representative, if I may ask if I can be able to.
Q: Yes, what sort of a document is that?
A: One of the document will be the recognition letter from Department of Lands, sorry, Petroleum and Energy. The letter was ---
Q: That is that department recognizing Purari Development ---
A: Purari Development Association.
Q: Association Incorporated?
A: Yes.
Q: As the mouthpiece or a spokes --- 10
A: Yes.
Q: Entity for the people of ---
A: Correct.
Q: From the area?
A: Yes. I have a copy of that letter, the letter is, it was done by IPA, the Registrar of Licence.
Q: Alright do not read through that letter, we are running out of tapes for the transcripts too. Counsel, just have it tendered and we can read it and I doubt it.
MR BOI: I think it is included in his affidavit. 20
COMMISSIONER JEREWAI: Is it? Well, no need to read that letter, it is in the affidavit. I will read it.
A: Yes.
Q: Draw my attention to further documents that you believe they relied on, just very briefly.
SABL52-‐JEREWAI 30/11/2011 30
A: Yes, correct. The other one will be the letter of, purported letter of recognition from the current president, Baimuru Local Level Government.
Q: Well, witness, all those documents do not constitute any form of recognizable agency appointments.
[10.35 am] So I just want you to know that. It does not matter if Prime Minister of this country gives you a letter of recognition or the All Mighty Himself. Okay.
MR BOI: The third basis of your objection, there was false claims and representation by PDA which I suppose you want to refer to those various documents you were talking about.
A: Thank you, counsel. In this part of my grounds I have, if I may refer that to 10
the actual, the Deed, the Instruments that was signed by so-called agents representing the individual tribes or clans ---
Q: Are you referring to the Instrument of Lease?
A: Correct, yes.
Q: For customary land?
A: Yes.
Q: Dated 12 November 2010?
A: Correct, yes.
COMMISSIONER JEREWAI: Is that the signed one? Is that a copy that the State had signed? I am still interested to know how we are unable to access these 20
documents.
MR BOI: Commissioner, this is not a signed, well, it is not signed by the State agents and in the witnesses. It is the same one ---
COMMISSIONER JEREWAI: Similar to the one produced by Mr Evara.
MR BOI: Mr Evara, yes, copy of the same.
COMMISSIONER JEREWAI: Okay, we, take him to where his particular clansmen signed or tribesmen rather.
SABL52-‐JEREWAI 30/11/2011 31
MR BOI: You take issue with which of these people, which signatures you say is false or they are not representative or should not sign or did not sign?
A: Commissioner, first of all, this Deed Instrument, the rest of the documents were obtained from Lands Department.
COMMISSIONER JEREWAI: Were they?
A: I did after the registration, after the SABL was granted. So still there is no signatures of the responsible officers.
Q: All right counsel, just pause briefly with your question. I just want to – were you able to obtain copies of these documents during your meeting?
A: Yes. 10
Q: In March?
A: Yes.
Q: February and March?
A: Yes.
Q: With Mr Malisa?
A: Yes, it was, the documents, there was only one copy and it was handed over to me to do a copy on the 11th of March.
Q: By who?
A: By Lazarus Malisa.
Q: Lazarus Males and you have two other officers; Sharon Kila and Andy 20
Malo.
A: Andy Malo. But the documents were ---
Q: Where did they produce the document from? Did they have a file with them?
SABL52-‐JEREWAI 30/11/2011 32
A: Yes, the file was locked away in Tasion Asiso’s file. But he was out, overseas when Lazarus Malisa, upon us pursuing him, had to get this file out and give it to us.
Q: Mr Tasion Asiso. Do you know if he is still a Lands officer?
A: Sir, I do not know.
Q: Never mind. Go on. And so they produced these documents ---
A: They produced the rest of the documents.
Q: From that file kept in Mr Asiso’s ---
A: Yes.
Q: Office. 10
A: Yes. These were the only files according to Mr Malisa.
Q: And who obtained the file from Mr Asiso’s office?
A: Lazarus Malisa.
Q: Counsel, you better take note of that. And I want a summons for production to Mr Malisa and have him appear here this afternoon at 1.30.
A: Commissioner, I was in company with my tribe person when these things were obtained.
Q: Yes. Go on.
A: Commissioner, there are about 48 of the people who signed the actual Instrument as agents representing individual tribes or clans. And --- 20
Q: Are there any who represent their tribe?
A: Yes, there were ---
Q: Among the names of the people who signed?
A: There were 23 from the Iare tribe.
SABL52-‐JEREWAI 30/11/2011 33
Q: And are there any from your own clan?
[10.40 am] A: From my own clan there were five but they are not members of Kairilavi clan who reside in Baimuru. They are members, people who reside here in Moresby.
COMMISSIONER JEREWAI: Hold on. Are you saying that the names appearing against your clan as being signatories to the Instrument were actually not members of your clan? Are you saying that?
A: Yes. The people who signed representing or acting on my clan’s behalf.
Q: All right, call their names first.
A: There are five of them; Wesley Oakari, Elijah Iokave and they claim to be 10
chiefs, Lauji Oeka, Roy Kei Ito and Eddie Sarufa.
Q: And which clan do each of them are member of?
A: They claim to be members of Malalaua/Kairilavi.
Q: All of them; all five of them?
A: All five of them.
Q: And they are not---
A: These Kairilavi clan, they are people from Malalaua. And the major Kairilavi clan is in Baimuru, which I am the son of the chief of that clan.
MR BOI: There were other than those five? Other ---
A: Other than these five, there were 18 others on behalf of the Iare tribe. And 20
out of these 18, sorry, 13 of them, apart from these, the three of them who are village people representing the Iare tribe. Two are based in Kerema. These two are father and son. All in all it is only 23 people who signed the instrument and these 23 only represent 18 ILGs out of 120 ILGs of Iare tribe. So Commissioner, there is absolutely, absolute majority not having given their consent to have this land under SABL awarded to PDA. Commissioner, that is Iare tribe. For Korikis, we have six people who
SABL52-‐JEREWAI 30/11/2011 34
signed, Koriki tribe. We have six people who signed the instrument; that is the other tribe.
COMMISSIONER JEREWAI: Koriki?
A: Yes. Only six people. As far as I know as the president of the umbrella association, there is 52 ILGs in Koriki tribe and only six are permanent residents of Port Moresby.
[10:44am] We also have Kaimare tribe, there are only two members who have signed. They are also permanent resident of Port Moresby. Kaimare tribe has got 47 ILGs and so the list goes on. Varoi has got three.
Q: Hang on, what is the next one? 10
A: Varoi Tribe.
Q: How do you spell that?
A: V-a-r-o-i.
Q: And how many ILGS do they have?
A: Varois has 52 ILGS and out of this 52 only three have signed the instrument and out of this three, one is based in Port Moresby. I do not know if he did signed the instrument. One is based in Kerema and only one is from the village. Commissioner, we also have Pawai tribe.
Q: Sorry?
A: Pawai tribe, Pawai is part of Baimuru so we are Pawai tribe. Only three 20
people signed this instrument and out of this three – it is only two ILGs that acted for Pawai.
Q: And how may ILGs did Pawai have?
A: In Pawai it is about 15 or more but the records that I have at this moment is15. Two are based here in Port Moresby and one is based in the village.
SABL52-‐JEREWAI 30/11/2011 35
Commissioner, we also have the signatures from a tribe called Simbari. This tribe is not in anywhere in the LLG boundary of Baimuru district.
Q: What is the name again, Simbari?
A: Simbari tribe.
Q: Simbari?
[10:47am] A: Commissioner, I do not know how in the world they tried to fit themselves into becoming Baimuru people. So those were the only tribes who had signed the instrument there are other tribes who did not sign the instrument.
Q: Okay who are they? 10
A: We have Maipua tribe. Q: Hang on, go slowly. M-a-i-p-u-a?
A: M-a-i-p-u-a, correct, yes.
Q: Yes?
A: None of them signed the instrument.
Q: Yes, I heard the next two did not sign, next tribe?
A: We have Kairuu tribe. K-a-i-r-u-u.
Q: R-w or r-u?
A: R double u 20
Q: Double u, yes. Next one, which members did not sign at all?
A: Upiko tribe.
Q: Yes, next?
A: And we also have Kara tribe.
Q: Yes?
SABL52-‐JEREWAI 30/11/2011 36
A: I think those are the ones who have not signed the instruments.
Q: Four?
A: Yes.
Q: None of the members whatsoever signed the instrument?
A: No.
Q: And again you said there are nine tribes?
A: There are nine tribes.
Q: So almost half of them who did not sign?
A: Correct, yes.
Q: Go on? 10
A: Commissioner, the representation in this instrument seems very clear here that the majority of the landowners never gave their consent, it is just a minority. The classic example will be my own clan.
Q: From within Mr Evara’s own tribe?
A: Correct.
Q: All right, we have heard you on that you do not have to repeat?
A: Commissioner, there is also a claim made by Uang, who claims to represent Akoma village, Akoma village is within Kairuu tribe.
Q: Who claims to represent them?
A: This particular person is Joseph Kuripi. 20
Q: Who is he?
A: He is a Iare tribe member.
Q: Iare tribal man?
SABL52-‐JEREWAI 30/11/2011 37
[10:51 am] A: Correct. I have received complaints from this particular village or this tribe Kairu that they never gave any consent for this person to use their village or whatever.
Q: Or they never appointed him as their agent?
A: Not at all. He acted in the capacity as the Chairman of the Iare Purari Resources Owners Association which is an association of Iare tribe.
Q: Yes?
A: Commissioner, for that particular case I have the Chairman of that particular tribe in the room today if the Commission can allow for him to--- 10
Q: I am sure we will hear him and verify what you are saying.
A: I will continue?
Q: For your part, is that all you need to tender?
A: No, there is also a claim here, there is a false claim here saying that, ‘I receive complain from a Chief of Aikavalavi.
Q: Aikava?
A: Lavi.
Q: What was that complaint?
A: The complaint was that two of the Iare tribe members signed as the Chief of that village when they are not. 20
Q: No, first of all, is that - what is the name of the chief of Aikavalavi?
A: The chief of Aikavalavi is Tiare Kairi.
Q: Hang on. Sorry what is his name again?
A: Tiare Kairi
Q: Tiare Kairi? And he says two people who signed on behalf of his---
A: Correct, these two are actually brothers but they both claim to be both chiefs.
SABL52-‐JEREWAI 30/11/2011 38
Q: The Chief of Aikavalavi by the name of Tiare Kairi, he says two people who signed on behalf of his tribe?
A: On behalf of his village.
Q: Are not authorized to sign?
A: Because they are not chiefs because they acted as chiefs in here.
Q: But they are from that village?
A: They are from that village.
Q: One is his brother?
A: Both of them are brothers.
[10:54am] Q: Both of them are his brothers? 10
A: No, they are not.
Q: The two signed are both brothers?
A: Yes.
Q: But are they related to the chief?
A: Yes, somehow, the chief will explain that.
Q: He is here?
A: He is here.
Q: All right then, look we are going to have the chief in so do not labor on explaining these matters on his behalf, let him come and say them for himself. 20
A: Yes.
COMMISSIONER JEREWAI: Counsel, is he among the witnesses remaining to be called or is he going to be an addition?
MR BOI: No, he will have to be an addition.
SABL52-‐JEREWAI 30/11/2011 39
COMMISSIONER JEREWAI: Yes, well let it be an addition, take note then. Yes?
A: Yes, Commissioner, so those are the three main basis which I have lodged my objections against the granting of the SABL. So all in all the majority of the land owners never gave their consent as far as I am concerned.
Q: All right, that is your statement, you have your evidence in already. Have you anything else to offer in evidence?
A: I think Sir, no.
MR BOI: All right, Commissioner, just for completeness, during say 2009, 2010 before the grant of the SABL, were you in the village or where were you? In 10
Moresby or?
A: In 2010, I was here. I was here in the city trying to register that other association which I am the president of after my elections.
Q: In any event are you aware or have you been made aware of some kind of public inquiry or public consultation in relation to the granting of this SABL which may have been carried out in the SABL area in Baimuru? Are you aware of any public hearings, public consultations?
A: I was not aware, I was never one.
Q: Are you aware of any land investigations which may have taken place in relation to this SABL which may have been conducted in Baimuru? 20
A: I am not aware.
MR BOI: Commissioner, those are all the questions I have for this witness.
[10.58 a.m] Sorry, Commissioner just to tidy up, witness, you said there were two chiefs, one from Kauruu village and the other one from Aikavalavi village. Can you give the name of the Chief from Kairuu village whom you say will verify what you have said?
A: Counsel, sorry, corrections. He is not the chief, he is the chairman of the tribal association.
SABL52-‐JEREWAI 30/11/2011 40
Q: Chairman of the tribal association, yes. Okay, what is his name?
A: Kairuu tribe. Maikai Spencer Vai. Maikai.
Q: Maikai?
A: Spencer Vai.
Q: The other village chief from Aikavalavi village?
A: Tiare. T-i-a-r-e.
Q: Tiare Kairi?
A: Kairi, yes.
Q: Alright, thank you.
COMMISSIONER JEREWAI: Mr Gelu, Mr Andersen and Mr Ovia, have you 10
got any questions? Mr Ovia?
MR OVIA: Mr Commissioner, I have one question. Mr Valili, I am interested in your meeting with Mr Lazarus Malisa in March. The Inquiry has been handicapped by the fact that no Lands file was provided to assist in the Inquiry. You said that it was during that meeting that the instrument for lease was copied and given to you, is that correct?
A: Yes, I said that.
Q: So would it be correct to say that the SABL was granted based on the instrument for lease not been signed by the other parties to the agreement?
A: Sorry, can you come again? 20
Q: I will just refer you to an annexure to the affidavit. That is the instrument of lease for customary land. You were just taking the Inquiry through those who signed on behalf of their respective clans and tribes. I am trying to confirm with you that – would you agree with me that the SABL was granted on the basis of this instrument?
A: Yes, because that is one of the ---
SABL52-‐JEREWAI 30/11/2011 41
Q: Okay, Mr Valili, so this was copied and made available to you after the SABL was granted.
A: Correct.
Q: So you would agree that it was granted despite the other parties to the agreement, for instance the Secretary for Lands and Physical Planning not signing the instrument.
A: Correct.
Q: Despite that it was granted.
A: It was granted, yes.
[11.02a.m] MR OVIA: Mr Commissioner, I have no further questions. 10
COMMISSIONER JEREWAI: Thank you Mr Ovia. Mr Gelu, you have any questions?
MR GELU: Yes, just three questions though I was not in the earlier part of the – Mr Ali, are you a member of the Iare tribe?
A: I am.
Q: What would you say to the Commission, are you or is Mr Roy Evara one of the member of the Iare tribe and a leader of the Iare tribe?
A: Mr Roy Evara is a member of the Iare tribe. Mr Roy Evara at this point in time has acted without any capacity---
Q: I am asking about whether he is the leader of the Iare tribe? 20
A: He is. To some degree anyway.
Q: Mr Ali, when you had your meeting with Lazarus, an officer with the Department of Lands, was the file of the Department of Lands there when this document was photocopied to you?
COMMISSIONER JEREWAI: He has already answered that during your absence. He said the file was locked in Mr Tasion Asisi’s office, from where it was procured and the documents were copied and made available to him.
SABL52-‐JEREWAI 30/11/2011 42
MR GELU: Okay, sorry Mr Commissioner.
COMMISSIONER JEREWAI: The result of which the answer was, “I had directed a summons to Mr Tasion Assisi to appear, (b) prepared and served on him so that he appears here at 1.30 in the afternoon. In the absence of which I am going to exercise my powers under section 11 of the Commission of Inquiry Act. Because I am just about fed up of, particularly the Department of Lands and Physical Planning giving this Commission of Inquiry all sorts of excuses as to the failure to produce altogether 13 files, two of which are or this one and for Portion 323 also Gulf, 323C. Please proceed.
MR GELU: Commissioner, no further questions on the witness. 10
COMMISSIONER JEREWAI: If there are no further questions to be directed to the witness, I will have the witness excused.
MR BOI: I have no further questions, can the witness be excused?
COMMISSIONER JEREWAI: Right, Mr Valili, the Inquiry into this particular lease is going to continue for several more hours, possibly even all of the rest of today. I ask that you remain within the precincts of the Commission of Inquiry in the event that we may require you to be recalled. Thank you. You may step down down.
A: Commissioner, sorry---
Q: Yes. 20
A: Before I step down, I have for the benefit of this Commission of Inquiry, particularly for this SABL, I have further information to give to the Commission some details of this SABL. The folio and the volume number.
COMMISSIONER JEREWAI: Counsel, take note.
A: The registration details are that---
Q: Yes, the folio?
A: The folio number is 106 in the Registry book and the volume number is 43.
Q: Yes.
SABL52-‐JEREWAI 30/11/2011 43
A: It was registered on 15 of February 2011, Tuesday 25th gazetted, July and with gazette number G19. These were all information obtained from Department of Lands under guidance of Lazarus Malisa.
Q: 25th July. Counsel, was that about five days after the establishment of this Inquiry?
MR BOI: Yes. It was 21st , the Commission was established on the 21st.
COMMISSIONER JEREWAI: Right.
A: Thank you.
Q: Are you done?
A: Yes. 10
Q: Thank you very much. You may step down.
THE WITNESS WITHDREW
MR GELU: Mr Commissioner, just to clarify, all those information contained in Mr Evara’s secretariat, is Annexure “M(x)” in that affidavit.
COMMISSIONER JEREWAI: Alright, thank you.
MR GELU: And the dates are conflicting to what the witness is saying. Thank you Mr Commissioner.
COMMISSIONER JEREWAI: Yes, we will soon find out when we have Mr Asisi in. 20
MR BOI: Commissioner, I think the other two intervening witnesses that have to be called just to clear out the – however, I need some directions, guidance here.
COMMISSIONER JEREWAI: Yes, call the Chief.
MR BOI: Mr Tiare Kairi? TIARE KAIRI, Sworn:
SABL52-‐JEREWAI 30/11/2011 44
XN: MR BOI Q: Chief, you will give your full name and your village and status to the
Commission of Inquiry for the records.
[11.10 a.m] A: Mi chief long ples long Mapai Kalalavi.
COMMISSIONER JEREWAI: Translator?
MR BOI: You are going to speak in Pidgin?
A: Yes.
MR BOI: Translator? 10
COMMISSIONER JEREWAI: We will have to have the translator sworn. We do not have a sworn translator here have we?
Counsel?
MR BOI: Sorry.
COMMISSIONER JEREWAI: Confer with Mr Valili that can we arrange for a translator. We still have got one good hour to go. Let us deal with these matters.
MR BOI: Yes.
COMMISSIONER JEREWAI: Do we have a standing sworn in translator in the Secretariat?
MR BOI: Not as far as I know. 20
COMMISSIONER JEREWAI: Perhaps we can deal with the other witness while one is arranged. I see Ms Peipul walking back into the secretariat.
MR BOI: Okay, bai you wait na – sorry, excuse me can I ---
COMMISSIONER JEREWAI: Please, it is a national language.
MR BOI: Bai yu wait liklik na mipela bai sinautim yu behain ken. That also goes for the other witness, the other ILG chief.
SABL52-‐JEREWAI 30/11/2011 45
COMMISSIONER JEREWAI: We will have to have them rescheduled then.
MR BOI: Yes.
COMMISSIONER JEREWAI: Which means also this hearing. We have Perpetual Shipping after we have Mr Assisi.
MR BOI: Yes.
COMMISSIONER JEREWAI: But who are the other witnesses here?
MR BOI: The other witnesses --- COMMISSIONER JEREWAI: We have a translator.
MR BOI: Chief. 10
COMMISSIONER JEREWAI: You first. Have you been sworn in Mr Sarufa?
MR SARUFA: No.
COMMISSIONER JEREWAI: Alright you stand up and have you sworn in first.
KAKO SARUFA (INTERPRETER), Sworn in:
MR BOI: Okay,---
COMMISSIONER JEREWAI: Has the witness been sworn in?
MR BOI: Yes.
COMMISSIONER JEREWAI: I understood that part. 20
XN: MR BOI
Q: Can you for the record give your name, village and status?
SABL52-‐JEREWAI 30/11/2011 46
A: My name is Charlie Kairi. I am from Mapaio village, Mapaio Kalari, Baimuru, Gulf Province.
[11.14a.m] Q: Is it true you are the chief of that village – Mapaio village?
A: That is true.
COMMISSIONER JEREWAI: Mapaio or Maipua?
A: Mapaio.
MR BOI: Evidence has been given to the Commission that two people who are not from your village – evidence has been given to the Commission that a person by the ---
COMMISSIONER JEREWAI: Perhaps Counsel, you through the translator show 10
him the instrument of the lease back.
MR BOI: I am going to show you a document which is a State lease document in relation to land which leases the customary land to the State.
COMMISSIONER JEREWAI: Show it to him Associate.
MR BOI: And that document---
COMMISSIONER JEREWAI: Lead him to the names of the particular file referred to by Mr Valili.
MR BOI: In that document it is alleged that two fellows from your village signed on your behalf and – sorry, I just do not have the copy which was marked.
[11.18a.m] It is alleged that a fellow by the name of Joseph Kuripi, sorry not Joseph sorry, 20
Joshua Akia Koivi signed on behalf of the Aikalalavi clan of Mapaio village. Are you able to confirm that? Is Joshua Akia Koivi a member of your clan and village?
A: We are from the same village, we are brothers, one clan. Roy and this person they are two brothers they are two brothers from the same clan.
COMMISSIONER JEREWAI: Roy Evara?
Q: Is he referring to Roy Evara?
SABL52-‐JEREWAI 30/11/2011 47
A: This man Joshua and the other they are all in one clan.
Q: One clan with who?
A: Roy.
Q: Roy who?
A: Roy Evara.
MR BOI: Is this Joshua Akia Koivi from Aikalalavi clan, a land group in Mapaio village?
A: Yes.
Q: The other person is Mailau Aukiri. Is he from Aikalalavi clan in Mapaio village? 10
A: Yes, he is from Aikalalavi clan but they are from Mapaio village.
Q: Are they chiefs? It says down here that their status as chiefs. Are they chiefs?
A: They have a status in the clan. Q: What is the name of their clan? Joshua Akia Koivi’s clan? A: Bai Inaru. Q: I see. And how about Mailau Aukiri, what is his clan? 20
A: Awari Aia Nairu. Q: And your clan name is? A: Pairi Mailau Kauvelavi Ikera Nairu.
[11.22a.m]Q: These fellows are not from your clan?
SABL52-‐JEREWAI 30/11/2011 48
COMMISSIONER JEREWAI: Which tribe do you all belong? A: The other tribe. Q: What is the name of your tribe? A: Iare. Q: Iare Tribe? 10
A: Iare Tribe. Q: And their clan also belong to Iare tribe? A: Yes. MR BOI: It seems to be we are on a futile – because he has not confirmed that this people--- COMMISSIONER JEREWAI: It does not matter. It does not matter for our 20
findings. Get it out of him. Is he here? MR BOI: You are chief of your own clan? A: I am chief of the clan and I am chief of the village. COMMISSIONER JEREWAI: It is not a futile exercise Counsel. Someone else has said he was from another tribe. He is merely confirming or either way. MR BOI: And Mr Joshua Akia Koivi is a chief of his clan? 30
A: Yes. Q: Which is the Bainai clan?
SABL52-‐JEREWAI 30/11/2011 49
A: Bai Inaru clan. Q: Bai Inaru, okay. And Mailo Aukiri is chief of Koari – what is the name of
the clan? A: Awari Aia Nairu. MR BOI: Thank you, I have no further questions. COMMISSIONER JEREWAI: Yes. Other counsels, have you any questions for 10
this witness? MR GELU: Yes, Commissioner, just one question. Witness, all the clans that you have mentioned before this Commission, they are all under Iare Tribe, is that correct? A: They are all from Iare clan. One clan. MR GELU: No further questions. 20
COMMISSIONER JEREWAI: Can the witness be excused? MR BOI: Yes. COMMISSIONER JEREWAI: Alright, Mr Kaivi. Is that right, Mr Kaivi? MR BOI: Yes. A: Yes. 30
COMMISSIONER JEREWAI: Your evidence is completed and you can step down and you are excused. A: I have a last say.
SABL52-‐JEREWAI 30/11/2011 50
COMMISSIONER JEREWAI: Please, this is your opportunity, go ahead. A: I am not happy with what has happened and all of us in the village do not
know what is going on. That is all. Q: Tell the witness, can you be a bit more detailed, tell us what is it that you are
not happy about? A: When this thing came about, there was no proper awareness. 10
Q: He must tell us what thing? A: They never came down to the village level to advise us. Q: Yes, but you must tell us what is it that he was supposed to tell you? A: What I am not happy about is it is only one clan that signed, not the whole of
Baimuru District.
[11.28a.m]Q: What did they sign? 20
A: The land title. That is the thing I am not happy about. Q: Would that be the title to Portion 8C which is a Special Agriculture and
Business Lease granted to Purari Development Association Incorporated? A: Yes. Q: Is that all you have to say? A: Yes. 30
COMMISSIONER JEREWAI: Mr Boi? MR BOI: No, Commissioner. COMMISSIONER JEREWAI: Alright, you are now excused. Thank you very much for coming. You can step down. THE WITNESS WITHDREW 10
MR BOI: The other person whom the Commission indicated, wishes to seek confirmation from is Mr Maikai Spencer Vai. Makai Spencer Vai? MAKAI SPENCER VAII, Sworn: XN: MR BOI Q: Witness, can you for the record give your full name, village, tribe and status
to the Commission? 20
A: Thank you, my name is Makai Spencer Vaii. Makai first name is spent M-a-i-k-a-i. Second name is Spencer, S-p-e-n-c-e-r, the last name is Vai, V-a-i-i.
Q: And you are from?
A: I am from Ukialavikari clan. The clan is spelt U-k-i-a-l-a-v-i-k-a-r-i. Can I mention the village first?
Q: Yes.
A: Village is Ikinu. I-k-i-n-u and the tribe is Kairuu. K-a-i-r-u-u.
Q: You are also chairman of the land group or are you---
A: I am the chairman of my own clan which is the Ukialavikari clan and the 30
chairman of the Tribal Association known as the Kairuu Resource Development Association.
SABL52-‐JEREWAI 30/11/2011 52
[11.32a.m]Q: And chairman of your own clan, Ukialavikari clan?
A: Yes.
COMMISSIONER JEREWAI: The Kairuu Development Association incorporated?
A: Yes.
Q: Can you remember when it was incorporated?
A: On 11 November 2007.
Q: Thank. That is now five associations.
MR BOI: Yes. Now, do you know a person named Joseph Kuripi?
A: Yes, I do. 10
Q: Where is he, can you ---
A: Joseph Kuripi is not fully of Kairuu tribe.
COMMISSIONER JEREWAI: Explain.
A: Although he grew up in Akoma, may I go back and just identify which villages I represent as a tribe?
Q: No, you just answer the question first.
A: Good, thank you. But he grew up in?
Q: Where did he grow up in Mr Joseph Kuripi?
A: He grew up in Akoma but he is not of Kairuu original, he is of Iare origin.
Q: And Akoma is a village? 20
A: It is a village within my tribe.
Q: With your tribe, okay.
A: Yes.
SABL52-‐JEREWAI 30/11/2011 53
Q: But he is not of your tribe of origin?
A: No.
Q: And what is his tribe of origin?
A: Iare.
Q: When you said he grew up, was he adopted or what were the circumstances leading to which he ended up residing in Akoma village?
A: I do not know very well about those in Kuripi.
[11.32 a.m.] Q: Are his parents from Iare tribe or from Kairuu tribe?
A: The village that we are referring to as Akoma is a mixture of Iare and the other big tribe called Kairuu. There are a mixture of people living there. So 10
he is one of those people of mixed origins.
Q: Mixed origins?
A: Yes.
Q: Both of Iare and Kairuu?
A: That is right, yes.
MR BOI: They are living in Akoma village?
COMMISSIONER JEREWAI: Yes, we have many villages like that.
MR BOI: But Joseph Kuriki is the chairman of Purari Resource Owners Association Incorporated?
A: That is correct, that is the tribal association for Iare tribe. 20
MR BOI: He is also chief of Awari Aia Nairu clan?
A: He may be. That clan Awari Aia Nairu clan is of Iare origin, not of Kairuu.
Q: I see. The fact that the Iare tribe and Kairuu, they are all mixed and living in Akoma village, would explain why his name appears in the list as from Iare Tribe but from Akoma village?
SABL52-‐JEREWAI 30/11/2011 54
A: That is correct.
Q: Thank you. I have no further questions.
COMMISSIONER JEREWAI: Any questions from other counsels? Mr Gelu?
MR GELU: No questions.
COMMISSIONER JEREWAI: Mr Anderson?
MR ANDERSON: No questions.
COMMISSIONER JEREWAI: Witness can be excused.
MR BOI: If there are no other further questions then.
COMMISSIONER JEREWAI: Thank you very much, you are excused. 10
THE WITNESS WITHDREW
MR BOI: Commissioner, I was advised by Ms Peipul that Mr Malisa would be available to give evidence this afternoon. COMMISSIONER JEREWAI: What about Mr Asisi, Tasion Asisi? MR BOI: There is no indication from Asisi. COMMISSIONER JEREWAI: Can we get some confirmation as to whether he is 20
still an employer of the Department of Lands and Physical Planning? Because he is the official or rather he was the officer in whose office this particular file was locked away. While you are taking stock of yourself Counsel, I want to just address the audience and the counsels at the Bar. Inquiry into this SABL is beginning to shape up as we are having contending associations formed variously throughout this SABL area, using this forum to promote themselves as if they are the legitimate mouthpiece or representative of the people of the area and I will not have that. We are not interested in that. With the announcement of gas and oil deposits similar to any 30
SABL52-‐JEREWAI 30/11/2011 55
other natural resources and we speculation on the kind of development that may take place commercially, everyone are rushing to position themselves to control benefits which may arise from this.
[11.41a.m] And I must inform you all that under the Oil and Gas Act, there are specific provisions to deal with benefit sharing and you should not use this forum to jostle for positions to control this because you will not. It will be determined under that Act. Special Agriculture and Business Leases are for large scale agricultural development or if it is to be used in other businesses, it does not need associations; it does not, I repeat, it does not need associations incorporated to represent the 10
individual or groupings of landowners to engage in these businesses. And do not think for one minute this is a forum you can come in and jostle for positions; positions of control particularly. It is shameful the way we have been conducting ourselves throughout Papua New Guinea; jostling for control over what should be accepted as, through our traditional norms and forms to share these benefits, be they commercial or traditional. I would be amiss if I do not say this here now. I will not allow the Commission of Inquiry to be the forum for you to engage in this jostling. What is before this Commission of Inquiry will be matters pertaining to the issue or rather the grant of the particular lease and whether these steps taken had been legitimate or otherwise. And essentially they must comprise of 20
landowner concerns. While the provisions of the Land Act, particularly under sections 11 and 102 does not specify the procedures to eventually grant these leases, the procedures for acquisitions of customary land pursuant to section 10 and also pursuant to Part 10 of the Land Act have been adapted to try facilitate this process to bring customary landowners into the market economy. The whole concept was a noble one until people began wrestling like you are right now for control. This Commission of Inquiry will determine if the limited process under those provisions that are available had been regularly followed or had been irregular and 30
will make recommendations based on those findings. And as I have stated in the opening of this particular SABL Inquiry hearing that we are here to determine the integrity of the official processes and to also look at the increase in the standard, lifting up of the business ethics involved in the grant of Special Agriculture and Business Leases.
SABL52-‐JEREWAI 30/11/2011 56
With Portion 8C so far, there had been clear evidence of the most primary requirements may not have been complied with so far and I will tell you this now. This is an Inquiry. I am not a court of law and I am not bound by the rules of the judiciary. This is an Inquiry and I will tell you now. The lack and observation of some of the most rudimentary processes is probably a very big question as to the integrity of the process in relation to this one. And that is why I am having the Lands officials coming in now rather than wait until later. Hopefully we will have them in this afternoon. But I want to warn you all who are interested in this particular lease not to use this venue as a venue for you to jostle between your 10
different associations. And so far we have counted five associations. Whether the guarantee is a representative association will be a matter to be ultimately determined as a matter of fact by this Commission of Inquiry and an appropriate recommendation will be made. Counsel, have you – where are we? MR BOI: Thank you Commissioner. I intended to actually summon the Secretary of the Town Council of Gas Project landowners associations, one of the associations are involved who had made submission--- 20
COMMISSIONER JEREWAI: Is this the same witness since yesterday who had been mentioned but who was not here? MR BOI: That is correct, Mr Ovia’s client. COMMISSIONER JEREWAI: Mr Ovia, you have been present throughout and where is your client? MR OVIA: Mr Commissioner, after the conclusion of yesterday’s proceedings, I have attempted to get in touch with him. Unfortunately, I was unable to. Just a 30
while ago I went to make a phone call to the office to find out if the office people have finally made contact but unfortunately that is not so. COMMISSIONER JEREWAI: Mr Ovia, you have heard my comments about these associations including your client. Our Terms of Reference, I assume you
SABL52-‐JEREWAI 30/11/2011 57
are well acquainted with them before appearing in this particular matter. Our Terms of Reference are very clear as to what we are inquiring and without the benefit of his evidence, I think this Inquiry is poised to make some factual findings. MR OVIA: Yes. Mr Commissioner will note from the affidavit filed on behalf of our client that they are not contesting, that they should be the recognized association. Basically he has set out that there was no land investigation conducted in his area, specifically the Paiawa tribe. 10
COMMISSIONER JEREWAI: And beside Mr Evara clearly stated and I think he is the principal executive of the grantee who admitted in evidence that they based the grant of this particular lease on a investigation carried out in 1994, well before the enactment of the current Land Act in 1996. And evidence before us is that the investigation that Mr Evara referred to really was a genealogical survey. Even if it was a land investigation, the fact of the matter remains that after the enactment of the Land Act of 1996, the procedures to be followed prior to the grant of Special Agriculture and Business Leases must be followed. You will not depend on any so-called investigations carried out prior to that. That is the position. 20
[11.50a.m]And if indeed by Mr Evara’s own admission, that is the state of the matters, that will render that the land investigation report that we have been looking for and that may be non-existence is not imperative. Mr Ovia, that is it. So you can consider whether you need to bring your client forward to give evidence or not. In my view it is not really necessary. MR OVIA: Yes. Mr Commissioner, by the way things are going, it has come to light that what I am familiar with in these processes there has to be land investigation, that has to be submitted to the custodian of Trust Land--- 30
COMMISSIONER JEREWAI: Trust land, that is a separate issue. I am not even decided yet on whether we need that. But the process, similar to permanent acquisition of customary land is that, although slightly different in character, is that after the land investigation a report is presented to the provincial administrator of the province in which the proposed lease is located, and if every matters pertaining
SABL52-‐JEREWAI 30/11/2011 58
to the landowner consent particularly are in order, he then recommends to the Department of Lands and Physical Planning to adopt the processes leading to the grant by the Minister and those are really the only matters we should be looking at. But here in this particular lease, in relation to this particular lease, Mr Evara has stated very clearly they relied on the 1994 investigation. He says there was a land investigation, others say it was a genealogical survey. MR OVIA: Mr Commissioner, I am quite satisfied that there was no land investigation. That is basically what my clients would be--- 10
COMMISSIONER JEREWAI: Well that is a matter that I will be satisfied of, not necessarily you Mr Ovia. That is the practical fact that I as the tribunal hearing this matter will have to be satisfied of. MR OVIA: Thank you Mr Commissioner. COMMISSIONER JEREWAI: Thank you Mr Ovia.
MR OVIA: It is just going to be reinstating.
COMMISSIONER JEREWAI: You have an affidavit from your client?
MR OVIA: Yes, Mr Commissioner. 20
COMMISSIONER JEREWAI: I am sure we can accept that affidavit without him having to tender it. We are not guided by the strict rules of evidence here. MR OVIA: Yes, Mr Commissioner. COMMISSIONER JEREWAI: For whatever it is worth, we will take that affidavit. Is that right Mr Boi? MR BOI: Yes, Commissioner, we have the affidavit. That is the affidavit of --- 30
COMMISSIONER JEREWAI: Alright, let us have it. Hand it up. It will be accepted in evidence.
SABL52-‐JEREWAI 30/11/2011 59
[11.54a.m]Alright, the affidavit of Mr Jomu Koari sworn on 28 August and filed with the
Commission of Inquiry on 31 August 2011 is accepted into evidence and will be marked as exhibit F, Purari Development Association Incorporated, Portion 8C, Karimui, Kikori, Gulf Province.
[EXHIBIT F – SWORN AFFIDAVIT OF MR JOMU KOARI DATED 31 AUGUST 2011 - PURARI DEVELOPMENT ASSOCIATION INCORPORATED, PORTION 8C, KARIMUI, KIKORI, GULF PROVINCE] 10
COMMISSIONER JEREWAI: Alright Mr Boi? MR BOI: Commissioner, I have summonsed – well, that actually brings us to the end of the witnesses who have been summonsed based on their submissions and objections, representations. I have summonsed Mr Malisa but he was previously treated as one of those institutional people who are going to give evidence later but because of the Commissioner’s directions, we will attempt to have him before the Commission at 1.30 this afternoon together with Mr Asisi. I am advised by Ms Peipul that Mr Malisa has been contacted and he has indicated that he might be 20
able to come in before lunch and he might not be available after lunch. That is a matter which the Commissioner --- COMMISSIONER JEREWAI: Did he say why he will not be available after lunch? MR BOI: Ms Peipul did not say but--- COMMISSIONER JEREWAI: I can see Ms Peipul nodding, he did not indicate. Ms Peipul, inform Mr Malisa, he better come in and if he can come in too with Mr 30
Asisi. They have led us around in circles long enough. MR BOI: That brings us to the material I have for the Commission up until now so I request that the hearing be adjourned to 1.30 this afternoon for the Inquiry to deal with Mr Malisa and Mr Asisi
SABL52-‐JEREWAI 30/11/2011 60
COMMISSIONER JEREWAI: Alright for the benefit of other counsels, Mr Gelu, Mr Anderson and Mr Ovia, at the conclusion of the Inquiry into this particular lease, if you wish, I invite you to make short extracts or submission in writing and submit them to me, if you wish, based on the evidence that have been presented. The remaining witnesses are really matters I am taking up on behalf of the Commission of Inquiry in totality as to the conduct of the officials of the Department of Lands and Physical Planning and may not really affect your respective client’s interests. (…inaudible….) Saturday 3 November. As you will note we have been starting at 8.30 or approximately 8.30 every morning because 10
we are really pressed for time. Yes, counsel? MR ANDERSON: Commissioner, briefly the reason why I sought leave to appear was to address in essence the very matters that you have addressed to the audience just recently. In the circumstances I propose to just file a brief written submission essentially parroting what you have said to the effect that the SABL is a device which has its proper uses, it is not the appropriate device for determining benefits under the Oil and Gas Act which has its own processes and I will certainly 20
get it to the Commission for making that clear to this audience. COMMISSIONER JEREWAI: Thank you Mr Anderson. Yes, Mr Gelu? MR GELU: If I may Mr Commissioner, there are certain affidavits been tendered for the Commission. We do not have copies of those. If the Commission can make copies for us so that will assist us in preparing our pre-facts or submissions. COMMISSIONER JEREWAI: Mr Gelu, I will ask Mr Boi to ensure, provided you provide him a list of the affidavits or Mr Boi can undertake generally to 30
compare with you. You two can meet and compare which affidavits you do not have copies of and he will make copies available too. MR GELU: Thank you.
SABL52-‐JEREWAI 30/11/2011 61
MR BOI: Yes, Commissioner. I will endeavour to that and I ask for adjournment, for the hearings to be adjourned to 1.30. COMMISSIONER JEREWAI: I will just better make a formal ruling on directions for summonses to be issued. I direct that summons for the appearance and production of documents be prepared and served on the following officials of the Department of Lands and Physical Planning:
(1) Mr Lazarus Malisa (2) Mr Taison Asisi 10
And that on their appearance they be prepared to produce the Department o Lands and Physical Planning file in respect of portion 8C Karimui and Kikori Milinch Fourmil Kerema, Gulf Province at 1.30 this afternoon. Failing which they both will be held in contempt of this Commission of Inquiry. Right Associate, adjourn the Inquiry. LUNCHEON ADJOURNMENT
[3.05p.m.] COMMISSIONER JEREWAI: Yes, Ms Peipul. 20
MS PEIPUL: Yes Commissioner, good afternoon. I am stepping in for Mr Boi at this time with respect to the matter Purari Development Association Incorporated. I believe Mr Malisa, Lazarus Malisa of the Department of Lands and Physical Planning have been asked to appear this afternoon before the Commission. I believe Mr Malisa is now available to be examined and he is present in the room this afternoon. COMMISSIONER JEREWAI: That is Mr Lazarus Malisa? 30
MS PEIPUL: Yes, Lazarus Paul Malisa. COMMISSIONER JEREWAI: If we can have him up please. Thank you. LAZARUS MALISA, Sworn:
SABL52-‐JEREWAI 30/11/2011 62
XN: MS PEIPUL COMMISSIONER JEREWAI: Ms Peipul, I understand because Mr Boi had been taken ill this afternoon you are standing in and I want to indicate that I can assist you to continue with the questions we have in mind when we requested for Mr Malisa to appear this afternoon. Before we do that I had directed the end of the morning session for summonses to be issued not only for Mr Malisa to appear but also Mr Tasion Asisi. 10
MS PEIPUL: Yes, Commissioner, I have actually spoken with Mr Asiso, unfortunately he is attending to a police mediation this afternoon. He has indicated his availability for 9.30 tomorrow morning Commissioner. COMMISSIONER JEREWAI: You will convey to him that we start at 8.30, not 9.30. MS PEIPUL: 8.30, I can do so Commissioner. COMMISSIONER JEREWAI: In the meantime we can deal with Mr Lazarus Malisa. 20
XN: MS PEIPUL Q: Mr Malisa, thank you for attending this afternoon. Can you indicate to us
your current position with the Department of Lands and Physical Planning please?
A: Yes, sure. My current position in the Lands Department is I am the
manager, Land Acquisition for Southern Region and New Guinea Islands. 30
Q: Mr Malisa, you have been called in this afternoon to respond to several
questions regarding the Purari Development Association SABL granted on 25 January of this year 2011 and I believe there are some correspondence which you have written or are involved with that you are being questioned in
SABL52-‐JEREWAI 30/11/2011 63
relation to I believe it was mentioned this morning when another witness was examined.
COMMISSIONER JEREWAI: Sorry Ms Peipul, is Mr Malisa on oath still from previous?
MS PEIPUL: I do not know whether he has provided evidence previously.
COMMISSIONER JEREWAI: Can we have him sworn in please?
MS PEIPUL: I think he has been sworn in by the Associate.
COMMISSIONER JEREWAI: I beg your pardon. Alright proceed, beg your pardon. 10
MS PEIPUL: Yes, thank you Commissioner. Perhaps Commissioner can assist me in this regard. I think in the morning there was a witness was called who actually – perhaps your name was mentioned with respect to certain material that was referred to by the witness and that is why you have been called this afternoon. Perhaps Commissioner you could assist me in that regard?
COMMISSIONER JEREWAI: Yes, the particular witness is Mr Ali Avai Valili. Do you remember the person, Mr Malisa?
[3.10p.m] A: Yes, I do.
Q: Mr Valili said that on or about the 25th of February 2011 he met you and Ms Sharon Kila as well as Mr Andy Malo with regard to Portion 8C Karimui 20
and Kikori, that is the Milinch, fourmil of Kerema, Gulf Province. Do you recall that meeting?
A: Yes, that is true.
Q: He also said that in that meeting they raised objections to the grant of the title to Purari Development Association Incorporated. You recall that?
A: That is true.
Q: And you confirm that that was the objection raised?
SABL52-‐JEREWAI 30/11/2011 64
A: Yes.
Q: Also in that meeting this witness, Mr Valili said that you admitted that the title may have been wrongly issued to Purari Development Association Incorporated. Do you recall that?
A: Yes, I do.
Q: As a result, you caused the minute – I do not have the date here - but you caused the minute---
MS PEIPUL: It would have been 11 March 2011.
COMMISSIONER JEREWAI: 11 March 2011. You caused the minute to be sent to the Registrar of Titles. 10
A: That is right.
Q: Forthwith cancelled the grant of that lease to Purari Development Association Incorporated?
A: Yes.
Q: But before your meeting with Mr Valili and his people, you had caused the letter dated 17 January 2011 to be written to I believe Mr Romily Kila Pat who was the divisional head in respect of land acquisitions, Customary Land division in which you recommended very strongly that title be issued in favour of Purari Development Association Incorporated. You recall that?
A: That is true. 20
[3.13 p.m] Q: Now having heard the representations made by Mr Valili, you changed your mind. Can you elaborate why you changed your mind there and recommended for the lease to be immediately revoked?
A: Thank you. The Purari registration is, the requirements involved in the registration of the land, there are some irregularities in there. Why I am saying this is that there are certain requirements needed to register a particular land. First and foremost is the land investigation report. The current land investigation report was not in place, land group certificates
SABL52-‐JEREWAI 30/11/2011 65
were not provided with the exception that the land is about almost 700,000 hectares. I did raise the issue to the Deputy Secretary for Customary Land Services, Mr Romily Kila Pat, that I cannot do anything to proceed, to issue a title over Portion 8C. So that is what actually happened but it was through “verbal directions”, through the Deputy Secretary, Customary Land Services, I went on to produce or prepare the direct grant notices with the lease instruments which they have been signed by the executives of Purari Development Association headed by Mr Roy Evara. So upon signing of the lease – lease back agreement instrument, the file was referred to Deputy Secretary, Customary Lands Services through the Director. 10
COMMISSIONER JEREWAI: That would be Mr Romily Kila Pat?
A: That is right, Mr Romily Kila Pat and he then approved those two instruments, the direct grant notice and the lease – lease back agreement instrument. So after the approval, the direct grant notices were gazetted and then the file was referred to Mr Asiso who registered the title and issued the title to Purari Development Association.
[3.15p.m.]Q: We have heard from Mr Valili this morning that you did express that you were in a meeting you held with him and his people in February that you did express that you were under immense pressure from Mr Romily Kila Pat, the Deputy Secretary, Customary Lands Acquisition division to proceed and 20
process the necessary documents for the grant of this particular lease. Was that the correct position stated by Mr Valili?
A: That is true. Knowing that – sorry Commissioner. I have done a lot of registrations on customary land using the lease – lease back approach and one thing on the Portion 8 one, I actually had documents which are not actually required in our possession. The lease – lease back process requires the land investigation report, current land investigation report done by the provincial or district Lands officers. The reason why I hesitated at the first place when the Deputy Secretary Mr Romily Kila Pat asked me to proceed, to prepare the direct grant notice and the lease – lease back agreement 30
instrument because those requirements were not in place, especially the current land investigation report.
SABL52-‐JEREWAI 30/11/2011 66
Q: You did not sight a land investigation report at that time?
A: There was not any land investigation report. What was furnished to us by the applicant, that is the Purari Development Association, was a genealogy report, a well compiled and comprehensive report including boundaries demarcated and surveyed. Also there are certain customary landowners who witnessed in that particular submission.
[3.18 p.m.]Q: And you did not sight therefore any document from the Provincial Administrator of the Gulf Provincial Administration who would have normally been the one who would recommend if the lease should be granted or not? 10
A: That is right. There was not any recommendations from the Provincial Administrator recommending for the alienation of the land through the lease – lease back approach over Portion 8C.
Q: It was stated by Mr Valili in his evidence this morning that he was able to make copies of a number of documents including the instrument of the lease – lease back which was signed by a number of landowners but not signed by the officials of the Department of Lands and Physical Planning as well as the Minister. And he produced that which was similar to the – similar document produced by Mr Evara in his affidavit. And Mr Valili indicated that he was able to obtain a copy because you accessed the file in Mr Asisi’s office. 20
A: That is right.
Q: Mr Malisa, we have not been able to secure this particular file together with one other in the Gulf Province for this Inquiry. The response had always been that the file had been misplaced but yet you were able to obtain the file from Mr Asisi’s office. Do you believe that the file is actually still with Mr Asisi?
A: The file is I think it is within the Land administration area in the Customary Land division which we are trying our best to locate.
Q: And in particular Mr Asisi? If you were able to access the file from his office in February this year, should it not be still there? 30
SABL52-‐JEREWAI 30/11/2011 67
A: I do not think it is in Mr Asisi’s possession right now.
Q: Where do you think it is?
A: It should be with the Customary Land Services division.
Q: And the person in charge is Mr Romily Kila Pat?
A: That is right.
[3.21p.m] Q: And you yourself do not have any more knowledge about the whereabouts of this particular file?
A: I did have all the copies previously but then the files could have been misplaced.
Q: Hang on, you are not going to give me a simple one just like that. Could 10
have been misplaced? You had all the copies previously. What happened with those that had been in your possession? I have had enough of this misplacement business. Your copies, what happened to them?
A: I provided certain copies including the – there are about two bounded copies, that is the landownership and the genealogy submission done by Purari Development Association. There are about I think there are about three copies altogether; all thoroughly done, investigations and ownership, tribal boundaries, that I have provided them to the Commission. There are certain copies including the minute that was referred to the Deputy Secretary, Customary Lands Services, and the lease – lease back agreement instrument 20
with the direct grant notices. I was unable to locate those documents.
Q: What happened to your copies of these documents you stated earlier on before the most recent answer you have given me? What happened to them?
A: The copies that I had were with me.
Q: And what happened?
A: Because we were shifting our sitting arrangements, the files were put in different locations that I was unable to locate.
SABL52-‐JEREWAI 30/11/2011 68
Q: You have to be more specific as to your sitting arrangements. What sitting arrangements? If you had to exchange with an officer, you have to give me more detail than that. The reason I am being very precise, Mr Malisa, is this Commission of Inquiry had been held up by almost 13 files which have not been provided. I am not going to accept an answer that is evasive. You shifted; who did you shift with; what was happening; was there a restructuring; you have to be more detailed than that.
A: That is right. When the restructure came on, there were certain files that had been placed – we were placed on the second floor and we had to move from the other side of the building to the floor to the other location where now the 10
Customary Land Services division is located or situated. And whilst moving there, we have to move documents from one place to another. Bearing in mind that our filing system in the Department is not that efficient and effective where we can easily retrieve information and furnish to whoever that requested for those information.
Q: Indefeasibility of title, as a principle upon which everyone who own properties in this country are secured, their title to their respective properties. It is so important, a legal rule, that we have had this answer before from Mr Malo and others. Did you people, you officials not consider the importance of indefeasibility of title to such an extent that you should be very careful 20
even while moving office, even while shifting desks or floors. In this particular case, you yourself before moving hosted a very major complaint in relation to a lease, namely Portion 8C. Did you not consider that it was very important you make sure you do not lose sight of those files?
A: Yes, I did.
Q: You did not lose sight of them or you did? You lost sight of them?
A: At least I tried my best to have those documents with me. Unfortunately, there has been a change from me being a customary lands officer to manager, Land Acquisition. We now have a new division that takes care of registration of customary land that is customary leases division. Now the 30
Land Acquisition division is different from the land customary leases. And most customary leases files have been shifted from my area to the customary
SABL52-‐JEREWAI 30/11/2011 69
leases division at the moment. So whilst doing the shifting of those documents or files from our area, because we no longer deal with customary leases or customary land registration, those files have been shifted to the Director, Customary Leases, Mr Andy Malo. And whilst doing that the file was not taken care of properly, that is why some documents went missing from the file that we have right now with us.
[3.28p.m]Q: Mr Malisa, the strange thing about the unavailability of your Department’s file on this particular SABL is that together with Portion 323 Kukipi, which is Malalaua, in relation to which Koaru Resources is the titleholder, are the two controversial or hotly contested grants and it so happened and I cannot 10
accept that it is just sheer coincidence that their files should not be available from the Department of Lands and Physical Planning. You need not have to say anything with regard to that Mr Malisa. You did say however that if anyone should have this file, it should be Mr Romily Kila Pat.
A: I believe so, yes.
Q: Counsel, you have anything to go on from there?
MS PEIPUL: No Commissioner. Just with respect to, Mr Malisa, you referred to “verbal directions” been given to you, when were those “verbal directions” given by Mr Kila Pat? I assume they were from Mr Kila Pat with respect to your second brief? 20
A: I could not recall but the “verbal directions” were given prior to the direct grant notice and the lease – lease back agreements were been prepared.
Q: But when you mean “verbal direction”, there was essentially to go ahead and prepare---
COMMISSIONER JEREWAI: Was it a persistent “verbal direction”? Direction with force orally?
A: I do not think so. It was not persistent but since he was my boss I had to do it.
MS PEIPUL: And that is despite your initial, I am pointing out in your earlier minute of the irregularities with the--- 30
SABL52-‐JEREWAI 30/11/2011 70
A: That is right.
[3.31p.m] COMMISSIONER JEREWAI: Mr Malisa, thank you very much. You have done the best you can this afternoon to assist us. The questions have been hard for you but those are the circumstances. But I cannot promise you that you are out of trouble, together with other officials, you have a lot to answer for. But for coming this afternoon I want to thank you very much. You are excused in the meantime.
A: Thank you Commissioner, thank you Counsel.
THE WITNESS WITHDREW
10
MS PEIPUL: Commissioner, there are no other matters for this afternoon. I believe there was to be Perpetual Shipping. I understand that has been deferred to tomorrow morning.
COMMISSIONER JEREWAI: Deferred to tomorrow 8.30 after we have dealt with Mr Asisi with regard to Purari Development Association Incorporated. So we can adjourn to 8.30 tomorrow morning.
MS PEIPUL: Thank you Commissioner.
COMMISSIONER JEREWAI: Associate adjourn the Inquiry.
20
AT 3.32 P.M. THE INQUIRY INTO SABL WAS ADJOURNED TO THURSDAY 1 DECEMBER AT 8.30 A.M.
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INDEX PAGE NO
JOSEPH KENAKAO, Sworn:………………………………………….. 02 XN: MR BOI……………………………………………………… 02
THE WITNESS WITHDREW………………………………………….. 14 ALI AVAI VALILI, Sworn:……………………………………………… 15
XN: MR BOI……………………………………………………… 15
THE WITNESS WITHDREW TEMPORARILY…………………………… 27 ROY EVARA; recalled…………………………………………………… 27 10
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