No due process and no informed consent
The SABL Commission of Inquiry found a widespread failure by public servants to follow the law and proper process in issuing the SABL leases. Most importantly, bureaucrats did not ensure the informed of consent customary landholders.
The complete absence of informed consent was one of the primary findings of the SABL Commission of Inquiry and has been confirmed in a number of court cases.
In Papua New Guinea virtually all land is owned by local people. This 'customary ownership' is recognised and protected in the constitution.
According to the law, any lease or other use of customary land can only happen if all the customary landowners give their free, prior informed consent.
This is how Justice Canning has explained the issue [Mahuru v Dekena, 2013]
"To lawfully grant a Special Agricultural and Business Lease over customary land the Minister must comply with all of the requirements of Sections 10, 11 and 102”.
“The elaborate procedures in Sections 10, 11 and 102 of the Land Act have been inserted for a reason: to ensure that leases over customary land are granted only after a thorough identification and investigation of the land and the customary landowners and their agreement to what is proposed. In PNG land is a critical natural resource required by National Goal Number 4 to be conserved and used for the benefit of the present generation and for the benefit of future generations”
“Decisions about the transfer of interests in customary land must be made carefully and thoughtfully and in strict accordance with procedures prescribed by law."
Lack of due process
The Commission of Inquiry found many steps in the lease allocation process were either overlooked, rushed or incomplete. In some cases documents were falsely completed and signatures forged.
According to the Commission of Inquiry throughout the course of their investigations serious allegations were levelled against officials and senior government bureaucrats involved in the management of SABL. With bribes and inducements being offered by project developers and representatives of landowner companies to procure SABL titles.
The inquiry also received evidence of undue political pressures being put on government officials by senior Ministers and politicians to fast-track SABL applications and issue titles. Incidences of political interference were numerous and were reported in respective individual SABL reports.
The Commissioners found there was corruption and mismanagement, and lack of coordination by key agencies including departments of Lands and Physical Planning, Environment and Conservation, Agriculture and Livestock, Provincial Affairs and Local Level Government, Investment Promotion Authority, and the PNG Forest Authority.