As mentioned above, only the LGIA was implemented, so only the problems in implementing that legislation can be considered. It is worth repeating that the great majority of ILGs were incorporated for the purposes of forestry and petroleum projects, not for the vesting of land titles. Indeed, the anthropologist Colin Filer, who was much involved in developing the methodology for improving landowner participation in resource projects, describes how the LGIA was captured by the ‘heavy’ industries — oil and gas, mining, timber and palm oil — for their purposes (Filer, this volume). Another much-involved anthropologist, James Weiner, makes a similar point about CNGL’s ‘managerial approach’ to the landholding groups in the Kutubu oil project area (Weiner, this volume).

A very good account is given by Samuel Koyama, an officer of the PNG Department of Petroleum and Energy, of problems which have arisen in the petroleum sector, in using ILGs as a mechanism for the distribution of royalties and other benefits. He discusses the main problems under the following headings:

Koyama concludes that these are ‘mostly principal-agent problems arising from the poor design and lack of oversight of the ILGs — effectively, a failure of the government after it approved of these new institutions through legislation’ (ibid: 20).^[34] Taylor and Whimp made a similar finding in their report on land issues for PNG’s Department of Mining and Petroleum. Although they had their reservations about aspects of the LGIA, they noted that ‘there are almost no government facilities for the proper management of ILG incorporation processes, and little support for ongoing maintenance outside that offered by developers’ (Taylor and Whimp 1997: 12).

The academic David Lea, in his recent study of the forest industry and the role of incorporated entities, concludes that ‘ILGs have been less than successful in resolving problems besetting the forestry industry’ (2005: 169). Having mentioned the requirement under the new Forestry Act for landowners to form ILGs for logging projects, he continues:

Although Lea does make some important criticisms of the ILG concept, the problems he refers to are mainly caused by inadequate administration of the legislation — indeed, in this case, not just the LGIA but also the Companies Act.

The criticism of the scheme of legislation in PNG for recognition of customary groups and registration of titles in their customary land generally takes the approach that what was being attempted was misconceived. Some critics take the view that ILGs are inappropriate entities to be involved in benefit sharing, while others challenge the legitimacy of attempts by ‘Western‘ legislation to reconcile ‘traditional’ custom with development. Anthropologists in particular are concerned by what they see as attempts to ‘reify’ or ‘entify’ custom (Ernst 1999)^[35] and perpetuate an ‘ideology’ of landownership (Filer 1997).

For David Lea, ILGs have been unsuccessful actors in forestry operations because they are based on social relationships rather than on trust, and because they are essentially ‘wealth-distributing’ rather than ‘wealth-creating’ bodies (Lea 2005: 171–3). For him, the solution lies in abandoning ILGs and installing in their place companies created on a voluntary basis (ibid: 173).

James Weiner (this volume) asserts that the whole purpose of the LGIA is misconceived.

Weiner seems to be making two different points here — the LGIA has wrongly understood the nature of Melanesian customary tenures, and in any case, legislation cannot be used to protect custom — but his fundamental criticism is that Western-style legislation cannot faithfully capture customary institutions, values and processes. Colin Filer (this volume) represents this as an argument that there is ‘no way of reconciling custom with development, either in theory or in practice’. His own argument is that ‘Melanesian custom does not really exist in a form which would allow us to ask how it could or should be recognised in modern national law, because it was actually born out of the armpit of Australian colonial law’.

There is no doubt that the scheme of legislation for land group recognition and the registration of group titles has been dogged by problems of implementation. In many cases it is clear that the breakdown in ILG operations can be attributed to failure to follow the Act’s requirements in setting up ILGs and supervising their operations, not to the Act itself. In commenting elsewhere on Koyama’s list of problems above, I have made the further point that it ‘is no coincidence that these are precisely the problems facing the PNG State, in its grappling with the new responsibilities of nationhood’ (Fingleton 2004: 101). One can hardly blame the ILG concept for ‘leadership struggles’ and lack of leadership responsibility, misuse of funds, political alliances being formed to maximise benefits, bribery and corruption, and the failure of ‘spin-off’ business enterprises.

To the extent that malfunctions are due to poor administration, the way forward lies in putting in place a suitable administrative structure, with adequate staff, trained to carry out their functions and provided with the funds and facilities to do so. Without the necessary capacity for a law to be properly implemented, it cannot be given a fair trial. Only when a law has been properly implemented can a true impression be gained of how well the law is suited to achieve its purposes. As with any new legislation, it is important to keep its operations under review, and be prepared to make amendments and other adjustments where the need arises. Acts usually require implementing regulations, to carry them more fully and effectively into operation. There is a basic Land Groups Incorporation Regulation providing the forms and procedures for incorporation, but no provision has been made for distribution of benefits, for example — an obvious area for better regulation when the Act was being mainly used for that purpose.

As for the arguments that the legislation is fundamentally misconceived, I would first of all point out that the views of some commentators seem to be based on some basic misunderstandings. It is not the purpose of the legislation to codify custom. The LGIA is a measure which is based on custom and which applies custom, but it does not seek to set out custom. Nor, as some people seem to think, was the Act intended to record land boundaries and the ownership of land. That is the function of a customary land registration system — the missing element in implementing the reforms based on the CILM report of 1973. Unfortunately, many commentators seem to base their views of the legislation on how it has been applied — or, too often, misapplied. One main purpose of this paper is to provide a better information base, so that the legislation can be more constructively analysed.

The biggest concern is the view that to legislate for the legal recognition of customary landowning groups was attempting the impossible. Taken to its full extent, this would mean that the legislatures of countries which have adopted constitutional democracies and the rule of law can never bring that law to the aid of their traditional systems of social, political and economic organisation. Such a result approaches the prescriptions of critics like Helen Hughes (see Weiner and Glaskin, this volume), who see no ongoing role for customary tenures, but only their replacement by Western-style freeholds. The same sort of dismissal of custom lay behind the objections of the colonial judges and legal officers, which delayed the introduction of Village Courts in PNG for three decades (Oram 1979: 58–64). Such was emphatically not the view of the framers of PNG’s National Constitution, which makes custom part of the nation’s underlying law, which lays down as a National Goal that development should be achieved ‘primarily through the use of Papua New Guinean forms of social, political and economic organisation’ (Section 5), and which requires all governmental bodies (including the National Parliament) to apply and give effect to such National Goals (Section 25(2)).