Table of Contents
Recently, there has been renewed interest in the subject of customary land reform in Papua New Guinea (PNG). Although it was never really off the agenda, the protests, riots and police killings in Port Moresby which accompanied the World Bank’s attempt to promote customary land registration in 2001 meant that land tenure reform moved to the margins of the political debate. But the subject is too important for it to remain marginal for long, and customary land registration was placed on the agenda for a high-level ‘land summit’ held in PNG in August 2005. In preparation for that meeting, I wrote four articles on customary land registration that were published in the PNG Post-Courier during March 2005,[2] leading to lively debate there over the desirability of land tenure reform.
Meanwhile, another debate was running in Australia, over the direction of aid policy in PNG and the Pacific Islands generally, and on the use of development aid to promote land tenure reform. On one side, the economist Helen Hughes from the libertarian Sydney-based Centre for Independent Studies called for aid to be tied to the privatisation of customary tenures (Hughes 2004), while others with extensive practical experience in PNG and elsewhere defended customary land tenures as a viable basis for development (Fingleton 2004, 2005). Again, the question was raised whether customary land tenures are an impassable barrier to growth and sustainable development. For those who take the view that they are not, the challenge is to show how development strategies based on customary land tenures would work in practice. In responding to that challenge, attention must be given to the role of customary groups in the ownership and management of their customary land.
As other contributors to this volume have pointed out, attempts to identify indigenous groups and give them legal recognition are part of a two-way process, whereby ‘laws, practices and customs of both the Western nation state and indigenous people embedded in it, are developing and evolving out of each other’ (Sahlins 1976). In this chapter I present information on a ‘scheme of legislation’[3] for customary land registration introduced almost two decades ago in the East Sepik, one of the provinces of PNG. The main components of that scheme of legislation were: the East Sepik Land Act of 1987, which set out the law applying generally to land in the province, and the regulation of dealings in land; the East Sepik Customary Land Registration Act of 1987, which set out a process for the selective registration of group titles in customary land in the province and provided for the legal effects of such registrations; and PNG’s Land Groups Incorporation Act (LGIA) of 1974, [4] which is a national law providing for the legal recognition of customary landowning groups and their operations with regard to land.
A study of that scheme of legislation — its origins, aims, processes and results — can provide useful information on what is involved in issuing titles to customary groups in their customary land, and where the problems lie. I lived in PNG and worked as a government lawyer specialising in land matters from 1970 to 1978, and returned in 1987 to draft the East Sepik land legislation, so I can comment personally on the origins, aims and processes of the legislation being studied here. As for their results, while I have some personal experience I must rely mainly on the accounts of others.
In what follows, each law will be outlined first, before examination of their results. My personal involvement in the preparation of the above laws means that, while I cannot claim complete impartiality, at the same time I do have an insight into the legislation and can document what the laws were attempting, and how they were intended to operate.[5] This is not well understood today, and that detracts from the important lessons which can be learnt from the experience under that scheme of legislation.
The three Acts mentioned above were designed to work together as a ‘scheme’, interacting with each other. I will first examine the East Sepik land legislation of 1987, and then the national law for the legal recognition of customary landowning groups. That law came into operation in 1974, and was invoked by the East Sepik legislation to provide for the bodies that would be issued with land titles and authorised to carry out dealings in registered customary land. The period under consideration for present purposes mainly relates to PNG’s post-Independence period after 1975, but a brief account of previous developments in land legislation and customary group recognition will be given as necessary background to what followed.
The East Sepik land legislation was an exceptional body of law, but it was not unprecedented. When writing about the legislation in 1991, I said:
Those Acts, with their supporting Regulations, represent the most significant breakthrough in the field of customary land tenure reform, not only in PNG but in the South West Pacific generally, since the current period of independent nationhood began (Fingleton 1991: 147).
The inability of governments in the Pacific to pass legislative reforms affecting land tenure means that my comment still holds true today, over a decade later. Most Pacific Island nations are still operating under land legislation from their colonial period. In PNG, this means that the land registration laws comprise remnants of a scheme of legislation introduced by the Australian Administration in the mid-1960s.
One of those laws was the Land Registration (Communally Owned Land) Ordinance 1962.[6] This law, based on Fijian precedents,[7] provided for the registration of customary land in declared areas as either individually owned or communally owned.[8] A Register of Communally Owned Land was established, in which those persons or groups found to be the owners of land would be registered. Land entered in the Register remained subject to custom, but an entry in the Register was conclusive evidence of the stated ownership, as at the date of the finding. The law made no provision, however, for dealings in the registered land, or for the legal recognition and operation of the landowning groups.
The other main land law introduced by the Australian Administration in the mid-1960s was the Land (Tenure Conversion) Ordinance of 1963. In contrast to the previous law, this legislation expressly provided that the individual freehold titles in customary land registered under its provisions would thereafter be free from custom, and all customary interests in the land and controls over it would be extinguished. Both this law and the previous one were administered by a special body, the Land Titles Commission, made up mainly of experienced senior field officers from the Administration.
In the early 1970s the Australian Administration proposed another major scheme of land legislation, but introduction of such reforms on the eve of Independence was controversial, and in the face of strong opposition the proposed laws were withdrawn. After the 1972 national election, the coalition government led by Michael Somare set up a Commission of Inquiry to make recommendations for reform of land policies, laws and administration in preparation for Independence. The Commission of Inquiry into Land Matters (CILM) made comprehensive recommendations for reform in its 1973 report, its guiding principle being that land policy ‘should be an evolution from a customary base not a sweeping agrarian revolution; collective and individualistic extremes should be avoided’ (GoPNG 1973: 15). The CILM based this principle on the Government’s ‘Eight Point Programme’, the forerunner of the National Goals and Directive Principles of the PNG Constitution, one of which (Section 5) calls for development to be achieved ‘primarily through the use of Papua New Guinean forms of social, political and economic organisation’.
Recommendations were made by the CILM for a new system of land dispute settlement, for dealing with problems over alienated lands (such as plantations), for land resettlement and other land matters. With respect to customary land, the CILM’s main views were that:
the previous emphasis on individualisation of titles was not appropriate;
new legislation for customary land registration should be introduced, but that it should be used sparingly, and only where there was a clear demand from the landowners concerned and a real need to replace customary tenures;
the ‘basic pattern’ should be to register group titles, and provide for the group to grant registrable occupation rights (to group members) or leases (to non-members);
the landowning groups should be incorporated, with a constitution defining their membership, powers and decision-making processes;
the system of using ‘representatives’ to make decisions on a group’s behalf should be abandoned;
the main controls on dealings in registered land should be through restrictions on the titles themselves — titles would not be fully negotiable, and limits would apply to grants of occupation rights and leases, while mortgages would only be available to secure loans from approved lending bodies (GoPNG 1973: 17–44).
The CILM Report became the basis for land policy making and legislative reform during the 1970s, including notably for present purposes passage of the Land Groups Act (later renamed the Land Groups Incorporation Act) of 1974, and the Land Disputes Settlement Act of 1975. By the end of the 1970s, however, the Somare-led coalition government was experiencing political instability. In 1978 the National Executive Council approved policy submissions that would have implemented reform in the main outstanding areas of the CILM report, including for the registration of group titles in customary land. But bureaucratic delays during 1979 and a change of government following a no-confidence vote in 1980 meant that no laws to implement the National Executive Council decisions were ever drafted. There has been no important change in PNG’s land legislation at the national level since then.
Meanwhile, a number of provincial governments were becoming frustrated by the failure at the national level to provide new legislation for customary land registration. The existing legislation, providing for conversion of customary land tenures to individual freehold titles, had been discredited by the CILM report, and the Land Titles Commission was in the process of being replaced by the new land dispute settlement machinery. The East Sepik leadership was firmly committed to basing economic development on customary tenures and Melanesian forms of organisation as called for by the PNG Constitution. When a World Bank consultant’s criticism of Port Moresby’s latest proposals for land law reform led to their being shelved, the East Sepik Provincial Government decided to invoke its legislative powers under the Organic Law on Provincial Government and proceed with its own land legislation.[9] In 1987, this resulted in passage by the East Sepik Provincial Assembly of the East Sepik Land Act and Customary Land Registration Act. The two laws were prepared on the basis of the CILM’s recommendations.[10]
The East Sepik Land Act sets out the general principles of land tenure in the province, providing in particular, that all land is either held under the State (alienated from customary ownership) or owned by customary groups under customary tenure.[11] Custom applies to all land in the province, except to the extent that it has been removed or modified by legislation. Land can only be removed from customary tenure by government acquisition. The Act also made provision for three kinds of dealing with customary land — sales, leases and charges.[12]
With respect to sales, the Act provides that customary land could only be sold to the National or Provincial Government, or to another customary group. Leases of customary land could be granted to a wide list of persons and bodies, including incorporated land groups and business groups, local and registered foreign enterprises, citizens and non-citizens resident in the province. Both sales of customary land to customary groups and leases of customary land are ‘controlled dealings’, requiring approval from either the Provincial Land Management Committee (for all sales and some leases) or the Local Land Management Committee for the area concerned, depending on the nature of the parties. Charges over customary land could only be made to secure a debt to prescribed lending bodies, and restrictions were imposed on the lender’s ability to foreclose and exercise a power of sale.
The East Sepik Customary Land Registration Act provides for registration of customary land at two levels: registration of full ownership, and registration of interests which are less than full ownership.
The other basic dichotomy drawn by the Act is between registration in declared Customary Land Registration Areas (CLRAs), and registration outside such areas. CLRAs were those parts of the East Sepik Province officially identified as having a priority for registration — based on criteria of local need and demand, and the availability of administrative resources necessary to carry out and maintain the registration of land titles. In CLRAs, the group ownership of land would be systematically investigated and registered. In addition, subordinate rights (for leases and so forth) granted by landowning groups to individual members or others could — subject to the requirements of the East Sepik Land Act outlined above — also be registered upon application. Within CLRAs, a registration was conclusive evidence of title.
Outside CLRAs, people could also apply for registration of their rights in customary land, either in full group ownership or as subordinate right holders. Because they would not be preceded by systematic investigations, the effect of these registrations was to confer only prima facie evidence of title. In effect, this was not much more than an official recording service, providing documentation of interests in land but no statutory protection for them.
The legislation specified that customary land registered under its provisions would remain subject to custom, although a claim based on custom could not defeat a registered title in a CLRA. Landowning groups were required to incorporate under the Land Groups Incorporation Act before they could be issued with a certificate of title and start entering into dealings with their land.
Key features of the East Sepik land legislation are:
All land in the province is either owned by the State, or is owned by customary groups under customary tenure (that is, customary land cannot be held in absolute individual ownership).
Custom applies to all land in the province, except to the extent that its application has been excluded or modified by legislation.
Subject to specified controls, three kinds of dealings could be entered into over customary land — sales, leases and charges (for mortgages and such).
Registration of titles in customary land would be introduced selectively, in CLRAs identified by reference to the criteria of: general support from the local landowners; genuine need for registration of titles; and availability of administrative resources.
In CLRAs, the group ownership of all land would be systematically investigated and registered.
Group titles issued in CLRAs would be indefeasible — that is, given statutory protection from competing claims.
Groups could enter into dealings with their titles, but first they had to incorporate under the LGIA.
Outside CLRAs, a service was available for recording interests in customary land, but such interests would be given no statutory protection.
Transfers (to other customary groups), leases and mortgages entered into by incorporated land groups (ILGs) could also be registered, and in CLRAs the titles so gained would also be indefeasible.
Registered customary land would remain subject to custom, but a claim based on custom could not defeat a registered title in a CLRA.
The East Sepik land legislation was an attempt to balance the economic need for greater certainty of interests in land with the desire, for social and cultural reasons, to retain customary tenures. The East Sepik Provincial Government of the day was committed to village-based development and the retention of traditional communities, and the legislation was designed to cause minimal interference with customary tenures. Registration would only be introduced selectively, where customary tenures were unable by themselves to adapt to changing circumstances. Even in such cases, the application of custom would only be removed to the extent necessary to meet the changing circumstances. Customary groups would remain the key actors under the province’s land reform, holding ownership of the registered land and having the power to enter into dealings with the land. The legislation was a statement of belief in the continued viability of customary groups.
What was the result of this vote of confidence in customary groups? As with so many of PNG’s attempts at land tenure reform, the tangible results were negligible. The East Sepik Provincial Assembly passed the two Acts by early March 1987, and they were brought into force on 19 May 1987. Later in that year I returned to East Sepik Province to draft the implementing regulations — the Land Regulation and Customary Land Registration Regulation, both of which were approved by the Provincial Executive Council in November 1988.[13] They prescribed the forms and procedures to be used in application of the two Acts. I also prepared a detailed Manual of Laws and Procedures, to assist officials in performing their land administration duties under the land legislation. Many anthropologists, linguists, geographers and other social scientists have conducted fieldwork in the East Sepik Province, and I prepared a Background Paper explaining the new legislation and a Land Tenure Questionnaire, which was sent to them seeking data for use in applying the new laws. Information Papers on the new regime were prepared for banks, financial bodies and others.
Meanwhile, at the national level, the World Bank was becoming increasingly involved in land affairs. In 1986 a World Bank Project Identification Mission visited PNG, following which the PNG Government approved preparation of the Land Evaluation and Demarcation (LEAD) Project. The Australian Government agreed to fund a feasibility study for the proposed project, the main objective of which was to create more favourable conditions for the implementation of agricultural and forest development projects (GoPNG 1988: 8). The Project Preparation Report proposed a project with a number of components, one of which was for a two-year trial of East Sepik’s Customary Land Registration Act. Based on this trial, consideration would be given to national legislation for customary land registration.
But this was too tardy progress for some provinces whose governments, encouraged by East Sepik’s example, also decided to go ahead with their own provincial land legislation. My assistance was sought, but the national authorities, worried about losing the initiative, arranged in 1988 for the World Bank to fund me to prepare Drafting Instructions for national ‘framework’ legislation for customary land registration. This approach would have allowed provinces to have their own legislation like that of the East Sepik, but within the ‘framework’ of a national law which would lay down the basic requirements to be met by provincial laws. In this way, it was hoped to ensure consistency and coordination across the country on this important subject.
In 1989, a World Bank loan to PNG was approved for the Land Mobilisation Project (LMP), based on the LEAD Project feasibility study. Under the LMP there was some support given to the East Sepik legislation, but not enough to produce any registrations. A land titles consultant was engaged in 1989 to review the legislation. His report (Levy 1989) supported its general thrust,[14] and made recommendations on the form and contents of the Customary Land Register under the new law. Despite this endorsement, the Department of Lands and Physical Planning delayed putting in train the necessary legislative, administrative and financial arrangements to allow the East Sepik legislation to come into operation. In 1995, when the provincial government system was substantially re-organised, the legislative powers of provincial governments were greatly reduced. The East Sepik land legislation never came into effective operation, and as it was not ‘re-enacted’ under the new provincial government arrangements it has now lost its legal status.[15]
One of the requirements of the East Sepik legislation was that, before a customary group could be issued with a registered title in its land, it had to be incorporated under the LGIA. The rationale for this requirement was the need for customary groups to be set up for effective decision making before being issued with a title and entering into dealings. The requirement provided protection both for the landowning group and persons dealing with the group. As it was a major component of the East Sepik’s scheme of legislation, that law will now be examined.