Granting of Leases by the Former Minister of Lands Mr Paul Telukluk to Himself, Family Members and Wantoks [1999] VUOM 6; 1999.06 (22 April 1999)

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GRANTING OF LEASES BY THE FORMER MINISTER OF LANDS MR PAUL BARTHELEMY TELUKLUK TO HIMSELF, FAMILY MEMBERS AND WANTOKS

PUBLIC REPORT ON THE
GRANTINGOF LEASES BY THE FORMER MINISTER OF LANDS
MR PAUL BARTHELEMY TELUKLUK
TO HIMSELF, FAMILY MEMBERS AND WANTOK

'Thou hast greedily gained of thy neighbours by extortion and have forgotten me saith the Lord God...'

This yet again we are confronted by evidence of leaders conspiring to defraud not only private individuals but the public by carefully plotting to increase their own personal wealth and assets by systematically pursuing dishonest courses of action and by misusing their public official positions to break the law, enrich themselves and to defraud others of their rights.

Public Report is about how 15 land titles were improperly allocated by the Former Minister of Lands and now Minister of Ni-Vanuatu Business Mr. Paul Barthelemy Telukluk to himself, Members of his Family and wantoks (people of his island community). This report highlights the need for a proper policy governing the lease of Government Lands and Customary lands to ensure that they are done according to constitutional rights and Leadership Code obligations, and that actual market values are used.

The Ombudsman decided to investigate into this distribution of titles following several complaints lodged by members of the public. These complainants, having been allocated a block of land by the Department of Lands, had seen their land then given by Minister of Land Telukluk to members of his family or wantoks before the full process was finalised.

As Minister of Lands between 1992 and 1996, Mr. Telukluk had the legal power to sign land leases on behalf of the government, for public lands and lands under the management or control of the government. This also gave Mr. Telukluk the ultimate power to approve or determine the premium charged for leases.

During his term, Mr. Telukluk assigned 15 titles to himself, members of his family and wantoks:

∑ in 5 cases ignoring previous recommendations of these Committees or other legal interests in the title (one approved applicant had even paid a deposit on the title)

∑ in 8 cases without requiring negotiator’s certificates as required by s. 6 of the Land Reform Act

∑ in 7 cases granting negotiator’s certificates himself without the recommendation of the ULLSC or RLLSC

∑ in 5 cases, without requiring the premium to be paid before the leases were registered

∑ in 3 cases, having the documents prepared in Vila even though the land was in Luganville

∑ in 2 cases, signing the lease 2 days after he ceased to be the Minister of Lands with this power

The total of the lease premiums of the 15 properties was 6.608.960 Vatu, however only 5.125.800 Vatu was collected. The privately estimated market value of the 15 properties at the time the leases were granted, is approximately 27.818.100 Vatu. This shows a loss of over 22 million Vatu to the people of Vanuatu.

Mr. Telukluk assigned five (5) of these titles to himself. On four of the leases there was no premium on the lease. The premium of the fifth lease was 4.012.550 Vatu, however the privately estimated value is approximately 7.500.000 Vatu, almost double what was paid. The privately estimated market value of the entire 5 properties at the time the leases were granted, is approximately 15.647.650 Vatu, saving Mr. Telukluk over 11 million Vatu at the people’s expense.

The Ombudsman found that Mr. Telukluk’s conduct was unjust and contrary to Art. 5(1)(k) of the Constitution, because he gave himself and people close to him preferential treatment to obtain leases at cheap prices; other people of Vanuatu were not treated equally. With respect to 4 titles acquired for himself for free, the Ombudsman found this conduct to be misappropriation. The Ombudsman also found that Mr. Telukluk breached each and every section of the Leadership Code in the Constitution:

∑ Art 66(1)(a): Mr. Telukluk had a conflict of interest with respect to the 15 leases described in this report. Since he, or a member of his family or his wantok, would benefit from a decision to grant a lease, Mr. Telukluk should not have acted in regards to these leases. In the most obvious conflict, he signed 5 leases on behalf of both parties: on behalf of the government, and on behalf of himself personally.

∑ Art 66(1)(a): One of Mr. Telukluk’s official duties as Minister responsible for Lands was to execute leases on behalf of the Government of Vanuatu. Mr. Telukluk did not exercise this power fairly, and placed himself in a position in which the fair exercise of this official duty was compromised.

∑ Art 66(1)(b): The extent to which Mr. Telukluk ignored procedures and acted in favour of himself and those connected to him, in a clear conflict of interest, serves to lower the status of the position of Minister responsible for Lands. In this way, Mr. Telukluk demeaned his position.

∑ Art 66(1)(c)&(d): Mr. Telukluk’s conduct in obtaining government property for himself and others without following established procedures, such that over 27 million Vatu of property was granted for just over 5 million Vatu received, brings Mr. Telukluk’s integrity into question. This also endangers respect for and confidence in the integrity of the Government of Vanuatu, both internally and internationally.

∑ Art 66(2): Mr. Telukluk clearly used his ministerial position for his own personal gain. He acquired 4 properties for free (value over 8 million vatu), and 1 property at almost half its market value. He did not follow any of the established procedures to obtain these properties, and he signed these leases as both the lessee and the lessor!

The Ombudsman also found that the administrative practice and the law are defective, because there is no clear, mandatory policy to ensure that Government lands are leased fairly and at appropriate prices.

∑ Minister and Director-General of Lands to establish a comprehensive, mandatory policy ensuring the proper and fair lease of Government lands at real market value, which respects the Constitution and maximizes revenue to benefit the people of Vanuatu

∑ Minister of Lands to request the State Law Office to take all possible legal action to reverse the lease transactions made contrary to law

∑ Public Prosecutor and Commissioner of Police to consider prosecution of Mr. Telukluk for misappropriation of four land titles

∑ Removal of Mr. Telukluk from the Council of Ministers based on his conduct and violations of the Leadership Code.

1.1 The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and Leaders. This includes the former Minister of Lands, Mr. Paul Barthelemy Telukluk.

2.1 The purpose of this report is to present my findings as required by the Constitution and the Ombudsman Act.

2.2 The scope of this investigation is to establish the facts about the granting of leases by the former Minister of Lands, and to determine whether the conduct of Mr Telukluk was proper and whether there are defects in the administrative practice of the Department of Lands.

2.3 This Office collects information and documents by informal request, summons, letters, interviews and research. In this inquiry, because of a concern about under valuation of leases, this Office also obtained private valuations of all the relevant lease titles from three independent real estate agencies, who provided estimates of the values at the date of the lease.

66.(1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a) place himself in a position in which he has or could have conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

5. (1) The Republic of Vanuatu recognizes, that, subject to any restriction imposed by the law on non-citizens all persons are entitle to the following fundamental rights and freedom the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinion, language, or sex but subject to respect for the right and freedom of others and to the legitimate public interest in defiance, safety, public order, welfare and health-

(a) to pay the rent reserved by the lease at the times and in the manner specified there in;

6. (1) No alienator or other person may enter into negotiations with any custom owners concerning land unless he applies to the minister and receives a certificate from the minister that he is a registered negotiator.

The Department of Lands’ procedure has been in use since immediately after independence in 1980 after the establishment of the Department of Lands and the enactment of the relevant legislation in particular the Land Reform Act, the Alienated Land Act and the Land Leases Act.

The normal procedure to get a lease is simply to begin by identifying the land of your interest.

Then you have to apply to the Minister responsible for the land matters to be issued a Certificate of Registered Negotiators as stated in Section 6 of the Land Reform Act Cap. 123.

The Minister has established two advisory bodies, the Urban Land Lease Selection Committee ('ULLSC') and the Rural Land Lease Selection Committee and they are responsible for receiving and screening all applications for land leases in the urban sectors and rural area and to make recommendations to the Minister. These advisory bodies consist of: An officer from Attorney General’s office, an officer from Physical Planning Office, an officer from the Municipality and officers from Department of Lands.

The application does not go directly to the Minister as the Minister has created the committee to screen all applications.

Upon reviewing the ULLSC’s and RLLSC’s recommendations the Minister issues the negotiators certificate to the applicant to start negotiating for the land.

The certificate is basically a permit to allow the applicant to negotiate with the Custom Owners of the Custom Land, or the Minister of Lands who acts on behalf of disputing claimants or unidentified Custom Owners, or the Minister of Lands in the case of Public Land.

A survey plan of the site under negotiation is then requested to be prepared, which is an essential element for the creation and execution of a registrable land lease. A valuation is also requested by the Department of Lands before the lease is executed in order for the lessee to pay for the premium.

A lease instrument is prepared and subsequently executed by the lessee and the owner or the Minister in the case of Public or disputed land.

A lease is then registered in accordance with the Land Lease Act Cap 163 at Department of Land Records.

4.0 Mr Paul Telukluk became Minister of Lands in 1992 when the Union of Moderate Party came into power. According to Deputy Clerk of Parliament Emiliano Bouletare, Mr Telukluk lost this position on 20 February 1996, when Mr William Edgel was given the portfolio upon a change of Prime Minister. While Minister of Lands, Mr Telukluk had the legal power to sign land leases on behalf of the government. In 15 cases, Mr Telukluk used this power to sign land leases in favour of himself, members of his family and wantoks.

4.1.1 On 15 February, 1994, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to himself. (see appendix 1 and 2).

4.1.2 The block of land of 1225m2 is situated at the corner of Eluk road and Rue de Anjou at Nambatu District. On this land is a house with a surface of 162 m2, with a solid construction of concrete block comprising 3 bedroom, 1 toilet, covered terrace, and carport with laundry corner and Adjoining small studio.

∑ a lease premium of 4.041.250 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 6.960.000 Vatu by one agency and 8.000.000 Vatu by another ( see page 9)

4.1.4 Mr Telukluk obtained a mortgage loan from the Vanuatu National Provident Fund to pay the lease premium. The total amount of money that Mr Telukluk borrowed from VNPF was 4.873.713 vatu.

4.2.1 On 30 December, 1994, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to himself (see appendix 3 and 4).

4.2.2 This is a block of land 1336m/sq and is situated at Saint Louis Luganville Santo. There had been a registered alienator for this land, as Mr Telukluk had advised the Luganville Urban Land Office in 1992, yet apparently no lease was ever granted in favour of the alienator.

∑ a negotiator’s Certificate dated 12.12.97 signed by himself, Honourable Paul Barthelemy Telukluk

∑ a premium of 1.336.000 Vatu is valued by the Valuation Department however no premium was charged for the lease

∑ no premium charged for the lease, even though a private assessment of the value of this title at the same date was 868.400 Vatu ( see page 9).

∑ lease documents prepared in Vila even though the title was under the responsibility of the Luganville Urban lands office

4.3.1 On 22 February, 1996, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to himself. Mr Telukluk signed as Minister responsible for Lands even though his position as Minister was terminated on 20 February 1996 (see appendix 5 and 6).

4.3.2 It is a block of land of 908m/sq and is situated at D’Entrcasteaux Street, next to Awa Store at Luganville Santo.

∑ no premium charged for the lease, despite an initial premium of 1.362.000 Vatu which was crossed out on the Lease. A private assessment of the value of this title at the same date was 740.250 Vatu.

∑ lease documents prepared in Vila even though the title was under the responsibility of the Luganville Urban lands office.

4.3.4 The alienator of this title was late Mr Lopo, whose interest was legally represented by co-administrators Mrs Alice Lopo (widow) and Mr Andrew Lo (son). Mr Lo relinquished his father’s right to lease the land in favour of Mr Telukluk without the knowledge or consent of Mrs Alice, and at the same time Mr Telukluk granted Mr Lo another alienated property at no premium.

4.3.5 The yearly rent for this title is 27.240 Vatu. Mr Telukluk has not paid the rent to the government since the acquisition of this land, and the Department of Lands has not taken action to obtain these rents or return the lease to the government. Mr Telukluk thus owes over 80.000 Vatu in arrears of rent.

4.4.1 On 11 January, 1996, this lease of rural land under the management and control of the government was granted by Mr Telukluk, on behalf of the Government of Vanuatu, to himself (see appendix 7 and 8).

4.4.2 This is a block of land of 3106m/s and is situated at Emden Lagoon (2nd lagoon). The title was owned by the Société de la Mission Catholique des Nouvelle-Hebrides prior to Independence.

- no premium charged for the lease, even though a private assessment of the value of this title at the same date was 4.659.000 Vatu ( see page 9).

4.4.2 The yearly rent for this title is 6.200 Vatu. Mr Telukluk has not paid the rent to the government since the acquisition of this land, and the Department of Lands has not taken action to obtain these rents or return the lease to the government. Mr Telukluk owes over 18.000 Vatu in arrears of rent.

4.5.1 On 22 February, 1996, this lease of rural land under the management and control of the government was granted by Mr Telukluk, on behalf of the Government of Vanuatu, to himself. Mr Telukluk signed as Minister responsible for Lands even though his position as Minister was terminated on 20 February 1996 (see appendix 9 and 10).

4.5.2 This is a vacant block of land and is situated at Teouma Road on the road to the dump site. This is an Agricultural Lease for 75 years, part of the same property which was owned by the Societe de la Mission Catholique de Nouvelle Hebrides prior to independence.

∑ no premium charged for the lease, even though a private assessment of the value of this title at the same date was to be 1.900.000 ( see page 9).

4.5.4 The yearly rent for this lease is 3.200 Vatu. Mr Telukluk has not paid the rent to the government since the acquisition of this land, and the Department of Lands has not taken action to obtain these rents or return the lease to the government. Mr Telukluk owes over 9.000 Vatu in arrears of rent.

4.6.1 On 24 September, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mrs Celine Telukluk, his wife.

4.6.2 It is a block of land of 1759 m/s and is situated along the one way road from Tennis/Stade Street to Ministry of Education

∑ a lease premium of only 527.000 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 2.110.100 Vatu by one agency, and 1.583.100 Vatu by another (see page 9).

4.6.4 Mrs Telukluk has never paid the premium of 527.000 Vatu despite being advised by the Department of Lands that this was required before signing the lease. Nevertheless, the lease was signed and later registered, and in fact the unpaid premium was never recorded in or followed up by the Accounts Section of the Department of Lands.

4.6.5 The yearly rent for this lease is 6.270 Vatu. Mrs Telukluk has not paid the rent to the government since the acquisition of this land. The Department of Lands has not taken action to obtain these rents or the premium, nor have they taken action to return the lease to the government for non-payment.

4.6.6 Mrs Telukluk owes over 547.000 Vatu in unpaid premium and rents on this title.

4.7.1 On 10 May, 1994, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mrs Celine Telukluk, Gerard Tailemb, Mr Edmond Rory, Mr Charlot Rory and Mr Feriam Maleb acting as the Trustee for the community of Vao. Mr Telukluk is also a member of the community of Vao, his home island of Malekula.

4.7.2 This is a vacant block of land of 2322 ms and is situated along the main road of Fresh Water opposite the cemetery.

∑ a lease premium of only 417.960 as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 2.090.000 Vatu by one agency, and 2.089.800 Vatu by another (see page 9).

4.7.4 The premium of 417.960 Vatu was not fully paid as required. To date, only 20.000 Vatu has been paid towards the premium.

4.7.5 The yearly rent for this title is 6.960 Vatu. This trustee has not paid the rent to the government since 1996, and owes over 20.000 Vatu in arrears of rent. The Department of Lands has not taken action to obtain the outstanding rents or premium, nor have they taken action to return the lease to the government for non-payment.

4.8.1 On 31 May, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Victor Telukluk, his son.

4.8.2 This title is a vacant block of land of 775 ms and is situated at the top of Fresh Water new allotment.

∑ a Negotiators Certificate granted by Mr Telukluk to his son directly, without screening by his Committee.

∑ a lease premium of only 310.000 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 775.000 Vatu by one agency, and 697.500 Vatu by another (see page 9).

4.8.4 Victor Telukluk paid an amount of 232.000 Vatu for this lease in 1996 after a warning sent by the Department of Lands. Somehow the Accounts Section of the Department Lands recorded a premium of only 232.000 Vatu, so that it appears on the records as though Victor Telukluk has fully paid his premium. However, the lease requires Mr Victor Telukluk to pay 310.000, and he therefore continues to owe the government the amount of 78.000 Vatu on the premium. No action has been taken to obtain this outstanding amount, and the land was subsequently transferred by Victor Telukluk to his sister in 1997 for 300.000 Vatu.

4.9.1 On 31 May, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Marcelino Telukluk, his son.

4.9.2 This lease title is a vacant block of land of 387 ms and is situated at the top of Fresh Water new allotment, next to the title granted to his brother Victor.

∑ a Negotiators Certificate granted by Mr Telukluk to his son directly, without screening by his Committee.

∑ a lease premium of only 338.800 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 833.000 Vatu by one agency and 753.000 Vatu by another (see page 9).

4.9.4 Marcelino Telukluk paid a total of 251.000 Vatu for this lease in 1995 and 1996. Somehow the Accounts Section of the Department of Lands recorded a premium of only 251.000 Vatu, so that it appears on the records as though Marcelino Telukluk has fully paid his premium. However, the lease requires Mr Telukluk to pay 338.000 Vatu, and he therefore continues to owe the government the amount of 87.000 Vatu on the premium. No action has been taken to obtain this outstanding amount (page 9).

4.9.5 Marcelino Telukluk obtained this title even though others were interested in it. Using the proper departmental procedures, Mr Willie Harrison Charlie applied for this title before Marcelino Telukluk was issued a Negotiator Certificate. His application was approved by the committee (ULLSC) at their 27 and 28 July 1992 meeting, however he was never issued a certificate of registered negotiator as recommended by the committee. Despite this recommendation, Mr Telukluk issued a certificate of registered negotiator to Mr Reuben Tamata on 10 February 1995 without following the established procedure. Mr Telukluk went on to grant his son a negotiator’s certificate and lease in May 1995, even though Mr Charlie had been approved by the ULLSC, and Mr Tamata actually had a valid negotiator’s certificate.

4.10.1 On 22 June, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Telukluk dit Mahe Serge Alain ('Serge Mahe'), his son.

4.10.2 This lease title is a vacant block of land of 931 ms and is situated at the top of Fresh Water new allotment, next to the 2 titles previously discussed.

∑ a Negotiators Certificate granted by Mr Telukluk to his son directly, without screening by his Committee.

∑ a lease premium of only 372.400 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 930.000 Vatu by one agency, and 837.900 Vatu by another (see page 9).

4.10.4 There is no record of whether the premium has been paid on this lease, as the documents were missing from the Department of Lands.

4.14.1 On 13 September, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mr Paniel Camillo and his wife Mrs Paniel Eliane. Mr Telukluk is related to Mr Paniel as a brother in law and Mrs Paniel’s mother is from Vao, the same island that Mr Telukluk comes from. Mr and Mrs Paniel are both members of the Union of the Moderate party.

4.11.2 This lease is a vacant block of land of 651 ms and is situated at Fresh Water new allotment.

∑ a Negotiators Certificate granted by Mr Telukluk on 10 May 1995 directly, without screening by the Committee.

∑ a lease premium of only 160.000 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 800.000 Vatu by one agency, and 720.000 Vatu by another (see page 9).

4.12.1 On 13 September, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mr Silvester Meltetake, his cousin. Mr Telukluk’s father is the brother of Mr Meltetake’s father.

4.12.2 This lease is a vacant block of land of 651 ms and is situated at Fresh Water new allotment. It is parcel of land on top of the main road with good breeze and small view of Vila harbour on the background.

∑ a Negotiators Certificate granted by Mr Telukluk to Mr Meltetake directly, without screening by the Committee.

∑ a lease premium of only 162.000 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 800.000 Vatu by one agency, and 585.900 Vatu by another (see page 9).

4.12.4 Mr Meltetake obtained this title even though there was another applicant. Using proper departmental procedures, Mr Willie Neman applied for this lease before Mr Meltetake was issued a certificate of registered negotiator. His application was approved by the committee (ULLSC) on 27 and 28 July 1992, but he was never issued a certificate of registered negotiator.

4.13.1 On 12 January, 1993, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mr Jean Paul Lamoureux, an uncle of Mr Telukluk’s wife.

4.13.2 This is a block of land of 1024 ms with a very old house upon it, and is situated opposite Chapuis Stadium, at Luganville Santo.

∑ no premium charged for the lease, even though a private assessment of the value of this title at the same date was 502.000 Vatu (see page 9).

∑ lease documents prepared in Vila even though the title was under the responsibility of the Luganville lands office

∑ lease document prepared in Vila even though the title was under the responsibility on the Urban Land Office

4.13.4 The Alienator of the said land is PECCARD Paul and his alienatorship was still recognised.

4.13.5 Mr Joseph Poindy having some relationship with the alienator was given the right to occupy the land, maintaining and paying all fees levied on this property since 1980. Mr Poindy showed strong interest in this property as a second round applicant sometime in 1992. The Urban Land Lease Selections Committee deferred Mr Poindy’s application on reasons that there are improvements on the property and also to find out whether there are other people whom the alienator may have given the right to this property. Furthermore a 30 day notice should be served on the alienator.

4.13.6 Mr Jean Paul Lamoureux also lodged an application, for the same and was granted approval in July 1992.

4.14.1 On 12 February, 1996, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mr Daniel Tamath, his wantok from Malekula.

4.14.2 This Lease title is a vacant block of land of 650 ms and is situated at the top of Fresh Water new allotment.

∑ a Negotiators Certificate granted by Mr Telukluk to Mr Tamath directly, without screening by his Committee.

∑ a lease premium of only 129.000 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 800.000 Vatu by one agency, and 585.000 Vatu by another (see page 9).

4.14.4 Mr Tamath obtained this title even though there was another applicant. Using proper procedures, Mr Eric Festa applied for this lease before Mr Tamath was issued a certificate of registered negotiator. His application was approved by the committee (ULLSC) on 27 and 28 July 1992, but he was never issued a certificate of registered negotiator. Mr Festa deposited an amount of 42.740 Vatu for the above title, however the Department of Lands has still not refunded his money since the title was allocated to Mr Tamath.

4.15.1 On 3 May, 1995, this lease of public land was granted by Mr Telukluk on behalf of the Government of Vanuatu, to Mr Jules Maltock and Mrs Josiane Maltock. Mrs Maltock is Mr Telukluk’s niece. Both Mr and Mrs Maltock worked for Mr Telukluk at this time (Mrs Maltock as a house girl and Mr Maltock as his driver).

4.15.2 This is a block of land of 635 ms and is situated at the new allotment of Fresh Water on top of Champagne Estate.

∑ a Negotiators Certificate granted by Mr Telukluk to Mr and Mrs Maltock directly, without screening by the Committee.

∑ a lease premium of only 159.250 Vatu as valued by the Valuation Department, whereas private assessment of the value of this title at the same date was 850.000 Vatu by one agency, and 573.300 Vatu by another (see page 9).

4.15.4 Mr and Mrs Maltock obtained this title even though there was another applicant. Using proper procedures, Mr Charlie Johnson applied for this lease and was approved by the committee (ULLSC) on 6 November 1991. He was issued a certificate of registered negotiator by former Minister of Lands Mr Daniel Nato on 15 November 1991. Mr Johnson was told by an officer at the Department of Lands not to make any payment until the electricity and the water were installed in that area. Mr Johnson did not get any reply from the Department to confirm that the work was completed, until 1995 when he found out that the land was allocated to Mr and Mrs Maltock.

4.16.1 As shown by the summary below, Mr Telukluk’s favouritism toward family and wantoks and his failure to obtain market value for government lands resulted in a loss to the people of Vanuatu of approximately 22.692.300 Vatu. The benefit to Mr Telukluk personally is approximately 11.635.100 Vatu, money that rightfully belongs to the government.

LEASE HOLDER	PREMIUM on Lease	PREMIUM actually paid	MARKET VALUE (Average where 2 valuations done)
Paul Telukluk	4.012.550	4.012.550	7.480.000
Paul Telukluk	Nil	Nil	868.400
Paul Telukluk	Nil	Nil	740.250
Paul Telukluk	Nil	Nil	4.659.000
Paul Telukluk	Nil	Nil	1.900.000
SUB-TOTAL	4.012.550	4.012.550	15.647.650
Celine Telukluk	527.000	Nil	1.846.550
Trustees for Vao	417.960	20.000	2.089.900
Victor Telukluk	330.000	232.000	764.000
Marcelino Telukluk	338.800	251.000	791.500
Serge Mahe	372.400	unknown	883.950
Mr & Mrs Paniel	160.000	160.000	760.000
Sylvester Meltetake	162.000	162.000	692.950
Jean Paul Lamoureux	Nil	Nil	502.000
Daniel Tamath	129.000	129.000	692.500
Mr & Mrs Maltock	159.250	159.250	711.650
TOTAL	6.608.960	5.125.800	27.818.100

5.1 Before starting this enquiry, the Ombudsman notified Mr Telukluk of the complaint against him and gave him the right to reply. Also a working paper was provided prior to this public report to give another opportunity to respond. However, no response was received from him. He never answered any of these allegations. He chose to remain totally silent.

5.2 A working paper was also provided to all the people affected by this report and gave them the opportunity to respond. Only two of these people responded. Replies received are attached as appendices to this report.

5.3 Mr Jules Maltock was the first to respond (refer to appendix 11). Mr Jules reconfirmed that he never applied for this title but was approached the former Minister of Lands Mr Paul Barthelemy Telukluk to get a land for himself. Mr Maltock blames the Department of Lands for not valuing the land at the right Market Value however he indicates that he is prepared to pay for the other part of the premium that was not included.

5.4 Mr Edmond Rory was the next to respond to our working paper. He confirmed that he signed the lease on behalf of the people of Vao living in Vila with the knowledge that Mr Telukluk will be responsible for the payment. He stated that in 1996 Mr Telukluk the former Minister of Lands told them that he will give the community of Vao a block of land and he will be responsible for the payment. He also mentioned that he signed the lease because he was a chief representatives for the Vao community in Vila (see appendix 12).

5.5 The other people who have been given the working paper such as the immediate members of Telukluk's family never responded.

6.1 Finding 1: FORMER MINISTER OF LANDS PAUL TELUKLUK’S USE OF HIS MINISTERIAL POWER TO GRANT LEASES TO HIMSELF, HIS FAMILY AND WANTOKS OUTSIDE OF THE USUAL PROCEDURES AND AT BELOW-MARKET PRICES WAS UNJUST

6.1.1 Mr Telukluk did not follow the established procedures within the Ministry of Lands. He granted leases to himself, his family members and his wantoks:

∑ in 5 cases ignoring previous recommendations of these Committees or other legal interests in the title

∑ in 8 cases without requiring negotiator’s certificates as required by s. 6 of the Land Reform Act

∑ in 7 cases granting negotiator’s certificates himself without the recommendation of the ULLSC or RLLSC

∑ in 5 cases, without requiring the premium to be paid before the leases were registered

∑ in 3 cases, having the documents prepared in Vila even though the land was in Luganville

∑ in 2 cases, signing the lease 2 days after he ceased to be the Minister of Lands with this power

6.1.2 Mr Telukluk went around the usual procedures to grant leases of public land and land under government control in order to benefit himself and people close to him. These people received preferential treatment, obtaining leases at cheap prices based on their connections to the Minister of Lands and not based on any reasonable assessment of an application for land. None of the other people of Vanuatu who might be interested in government land were given this special treatment. Mr Telukluk’s conduct was unfair and unjust.

6.2 Finding 2: MR TELUKLUK’S USE OF HIS MINISTERIAL POWER TO GRANT LEASES TO HIMSELF, HIS FAMILY MEMBERS AND WANTOKS WAS ALSO CONTRARY TO ARTICLE 5 OF THE CONSTITUTION

6.2.1 Mr Telukluk breached Article 5(1)(k) of the Constitution which gives all persons the fundamental right to equal treatment under administrative action. The Minister of Lands’ power to lease government lands is 'administrative action' and he therefore must exercise this power fairly, using equal treatment.

6.2.2 Mr Telukluk used his ministerial power to grant leases to himself, his family members and people of his home island. Mr. Telukluk did not treat these favoured people equally to other applicants, who are required to follow different procedures. In this way, Mr Telukluk violated the right to equal treatment established in the Constitution.

6.3 Finding3: MR TELUKLUK BREACHED EACH AND EVERY SECTION OF THE LEADERSHIP CODE IN THE CONSTITUTION: CONFLICT OF INTEREST, UNFAIR EXERCISE OF OFFICIAL DUTIES, DEMEANING POSITION, LACK OF INTEGRITY, USE OF OFFICE FOR PERSONAL GAIN

6.3.1 Mr Telukluk had a conflict of interest with respect to the 15 leases described in this report. Since he, or a member of his family or his wantok, would benefit from a decision to grant a lease, Mr Telukluk should not have acted in regards to these leases. In the most obvious conflict, he signed 5 leases on behalf of both parties: on behalf of the government, and on behalf of himself personally. Mr Telukluk violated Article 66(1)(a) by repeatedly placing himself in a position in which he had a conflict of interest.

6.3.2 One of Mr Telukluk’s official duties as Minister responsible for Lands was to execute leases on behalf of the Government of Vanuatu. Mr Telukluk did not exercise this power fairly, as discussed in Finding 1 above. As such, Mr Telukluk further violated Article 66(1)(a) by placing himself in a position in which the fair exercise of this official duty was compromised.

6.3.3 The extent to which Mr Telukluk ignored procedures and acted in favour of himself and those connected to him, in a clear conflict of interest, serves to lower the status of the position of Minister responsible for Lands. In this way, Mr Telukluk demeaned his position and violated Article 66(1)(b) of the Leadership Code.

6.3.4 Mr Telukluk’s conduct in obtaining government property for himself and others without following established procedures, such that over 27 million Vatu of property was granted for just over 5 million Vatu received, brings Mr Telukluk’s integrity into question. This also endangers respect for and confidence in the integrity of the Government of Vanuatu, both internally and internationally. In this way, Mr Telukluk violated Articles 66(1)(c) and 66(1)(d) of the Leadership Code.

6.3.5 Mr Telukluk clearly used his position as Minister responsible for Lands for his own personal gain. He acquired 4 properties for free (value over 8 million vatu), and 1 property at almost half its market value. He did not follow any of the established procedures to obtain these properties, and he signed these leases as both the lessee and the lessor! Mr Telukluk violated Article 66(2) of the Leadership Code which states that 'in particular, a leader shall not use his office for personal gain'.

6.4 Finding 4: MR TELUKLUK MISAPPROPRIATED 4 LEASE TITLES BY GRANTING THEM TO HIMSELF AT NO CHARGE AND WITHOUT FOLLOWING PROPER PROCEDURES

6.4.1 Responsibility for leasing of public lands and lands under the control or management of government is entrusted to the Minister responsible for Lands, by virtue of the Land Reform Act and the Land Leases Act.

6.4.2 The lease titles 03/OH72/012, 03/OI74/028, 12/0912/104 and 12/0921/104 were taken and converted to Mr Telukluk’s personal use without following established procedures, without charging a premium, and in violation of the Constitution as detailed above. Two of these titled (03/OI74/028 and 12/0921/104) were signed when Mr Telukluk was apparently no longer Minister of Lands and had no lawful authority to do so. The market value of these four titles is approximately 8.167.650 Vatu. This conduct may also amount to criminal misappropriation as defined in s.123 of the Penal Code, and as prohibited by s.125(b) of the Penal Code.

6.5 Finding 5: THE ADMINISTRATIVE PRACTICE AND THE LAW ARE DEFECTIVE: THERE IS NO CLEAR, MANDATORY POLICY TO ENSURE THAT GOVERNMENT LANDS ARE LEASED FAIRLY AND AT APPROPRIATE PRICES

6.5.1 There is no policy or mandatory procedure in place for the sale of Government land. As a result, those who are in the system are able to misuse their power by allocating land titles to their relatives and wantoks, discriminating against the rest of the population. The ULLSC and RLLSC are only advisory bodies, which allows the Minister to grant negotiator’s certificates and leases legally without any screening by anyone else. Even when the Committees are used, there are no clear and consistent criteria used to define who can apply and be considered for a government lease and who cannot.

6.5.2 The lack of policy has also resulted in the lease of government land at cheap prices, which is a significant financial loss. This is unfair to the people of Vanuatu as the money collected by the Government from land values and rents should be used to fund essential services to the people. Their assets are being improperly managed and undervalued for the benefit of just a few. The only social institution for land which exists is the National Housing Corporation which subdivides and sells land for low-income housing projects. The rate applied by NHC since 1994 is VT 1,375 per square metre, much higher than the rates applied by Government Valuation Section on all Government lands, and these blocks are to be allocated to ni-Vanuatu with low income. There is no acceptable reason for other government lands to continue to be leased at below-market prices; this simply encourages misuse of the system and allows people with connections to get cheap land while the rest of the people cannot.

RECOMMENDATION NO.1: MINISTER of lands mr silas hakwa AND DIRECTOR-GENERAL OF LANDS Mr Stanley Temakon TO ESTABLISH a comprehensive, mandatory policy ensuring the proper and fair lease of Government lands at REAL market value

7.1.1 This would ideally be in the form of binding Rules under the Land Leases Act to govern the lease of Government land. The policy and procedure must respect the Constitution (particularly equal treatment in s. 5 and the Leadership Code in s. 66), and must maximize the revenue (both lump sum and ongoing lease payments) for the benefit of the people of Vanuatu. As such, the policy and procedure must be designed to ensure that:

∑ Individual applicants are treated equally and without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex

∑ Favourable status may only be given in accordance with a program designed to benefit women, children, young persons, members of under-privileged groups or inhabitants of less developed areas

∑ The discretion available to the Minister or other person or Committee to pick and choose among applicants is either eliminated entirely (for example, leased to occupant or by lottery) or kept to a minimum by utilizing strict criteria

∑ The Minister or other persons empowered to approve applicants may not make such decisions where they have a personal connection to the applicant or property, where there is or appears to be a conflict of interest, or where there may be personal gain

∑ Valuation of government land leases must be based on actual market value, as assessed by qualified Valuation Officers, and in any event no less than the value attained by applying the National Housing Corporation rate

∑ Lands Officers are authorized to suspend the processing of a lease if it is not in accordance with the policy, Rules, Constitution or other laws of Vanuatu

RECOMMENDATION NO. 2: MINISTER OF LANDS TO REQUEST THE STATE LAW OFFICE TO TAKE ALL POSSIBLE LEGAL ACTION TO REVERSE THE LEASE TRANSACTIONS MADE CONTRARY TO LAW

7.2.1 It is noted that all 15 land transactions were dealt with in a manner contrary to the Constitution. In addition, 2 land leases (03/OI74/028 and 12/0921/104) were apparently signed by Mr Telukluk two days after he ceased to be Minister and ceased to have the legal power to sign on behalf of the Government.

RECOMMENDATION NO.3: THE PUBLIC PROSECUTOR AND THE COMMISSIONER OF POLICE TO DETERMINE WHETHER THE CONDUCT OF MR TELUKLUK IN CONVERTING 4 LAND TITLES TO HIS PERSONAL USE MAY BE SUCCESSFULLY PROSECUTED AS CRIMINAL MISAPPROPRIATION

7.3.1 The commencement of criminal proceedings against Mr Telukluk is accordingly referred to the Commissioner of Police and the Public Prosecutor in accordance with s.31(1)(b) of the Ombudsman Act (refer to Finding 4).

RECOMMENDATION NO. 4: THE PRIME MINISTER TO REMOVE MR TELUKLUK FROM THE COUNCIL OF MINISTERS; MR TELUKLUK NOT TO HOLD ANY MINISTERIAL PORTFOLIO OR OTHER LEADERSHIP POSITION IN THE GOVERNMENT OF VANUATU IN FUTURE

7.4.1 The conduct of Mr Telukluk outlined in this report occurred between 1993 and 1996. He cannot be prosecuted under the Leadership Code Act of 1998, which applies only to leadership conduct after 1 July 1998. It is therefore up to the Prime Minister and others who appoint and elect leaders to note Mr Telukluk’s unjust and unconstitutional conduct and act accordingly. As former Minister of Lands, Mr Telukluk breached each and every section of the Leadership Code of the Constitution of Vanuatu, benefiting himself and his family, and losing money for the people of Vanuatu.

RECOMMENDATION NO. 5: THE DIRECTOR OF LANDS TO ENSURE THAT MR ERIC FESTA’S DEPOSIT ON TITLE 11/OF33/076 IS IMMEDIATELY REFUNDED TO HIM

Vanuatu Ombudsman's Reports

Granting of Leases by the Former Minister of Lands Mr Paul Telukluk to Himself, Family Members and Wantoks [1999] VUOM 6; 1999.06 (22 April 1999)