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In this paper I examine the genesis and progress of the Incorporated Land Group (ILG) in the Kutubu oil project area of Papua New Guinea (PNG). The ILG is a legal entity empowered by legislation passed in 1974 to give legal and formal recognition, protection and powers to customary landowning groups in PNG (see Fingleton, this volume). In the Kutubu oil project area, at the instigation of Chevron Niugini Ltd (CNGL), the previous managing partner of the Kutubu Joint Venture, the Foi, Fasu and Lower Kikori River clans became incorporated under PNG’s Land Groups Incorporation Act 1974 (LGIA) and now receive royalty payments from the sale of petroleum. The ILG mechanism was employed by the developers in the belief that it would ‘give powers to landowners so that they could manage their affairs in a businesslike way’ and ‘provide recognition of the land group [that would] enable the village landowners to act in a way that outside people and agencies must recognize’ (Power 2000: 29). The advocates of the ILG mechanism asserted that ‘the ILG constitution guarantees that decisions regarding clan resources are made by the correct authorities in the clan’ (ibid).
But since the original round of ILG registrations, there have been numerous applications for new ILG status from subgroups within these original ILGs incorporated in the early 1990s. In 1998, 13 new Fasu ILG applications were lodged, all of them by subgroups within already incorporated clans. This proliferation is in the context of the most common complaint concerning these ILGs: that the income is not being satisfactorily shared by those members of the executive committee designated by the ILG to distribute its income. These new ILGs wish to have their own passbooks and receive their income payments directly.
The previous project operator, CNGL, interpreted this trend in two ways: as a sign that local clan leaders are dishonest, and as a sign that local people themselves have not yet sufficiently understood the nature of contemporary managerial procedure. They stop short of admitting the possibility that the clans themselves are not ‘customarily’ either corporate or collective units that exist for the common interest of its members.
But the LGIA is based on a quite erroneous assumption of the communal nature of landholding and transmission within the Melanesian ‘clan’ and of its essentially ‘collective’ interest. As Evans-Pritchard reminded us — and this became a founding approach of the Manchester school of African social anthropology in the 1950s and 1960s — the whole concept of the segmentary lineage system around which the attributes of corporateness were first empirically examined was founded on the notion of enduring and regular structural relations of conflict and consequent group fission as the mode of societal reproduction. Acts of legislation such as the LGIA have not understood this aspect of social structural formation in PNG, resulting in problems such as those CNGL has encountered in applying the LGIA to customary ‘landholding’ units. The companies and government departments who have attempted to implement the LGIA have made an ethnographically indefensible apportionment of the ‘political’ to external relations among landholding units, and consequently see the resulting conflict and competition within them as adventitious and subversive of the ‘customary’ landholding units themselves. This arises from the tendency to assume that the internal affairs and composition of landowning social units are both practically and ontologically prior to their external relations.
In the early 1990s CNGL undertook a census of all villages with clans who owned land in its Petroleum Development Licence (PDL) area and incorporated the recognised landholding groups at the same time. A total of 54 Foi ILGs were registered as PDL landowners with the aid of CNGL’s Lands Department between 1992 and 1994.
In an unpublished paper circulated amongst CNGL and other petroleum industry and government personnel, Tony Power, one of leading architects of this process, stated:
The Land Groups Incorporation Act was the most significant outcome of the 1973 Commission of Inquiry into Land Matters (CILM). The Act embodied a constant refrain in the CILM reflecting the desire of the Commissioners that Papua New Guinean ways be employed to maintain the integrity of custom in the management of land. The Commissioners soundly rejected all forms of land tenure conversion. At the same time the same concepts were being developed by the founding fathers and found their way into the Constitution exhorting the use of Papua New Guinean ways. The mind of the legislator was clearly that modern management mechanisms can and should be applied by customary groups to manage their affairs in relation to land and related matters (2000: 52, emphasis added).
The administrators trying to come to terms with the task of protecting customary PNG landholding units today are engaged in the same epistemological exercise that their structural-functionalist predecessors were during Radcliffe-Brown’s time (Weiner and Glaskin 2006: 1–2).
The more emphatically the investigators insisted on the importance of definitions, rationality, and their own conceptions of law and property, the more substantial and strictly bounded the groups became. They became, in short, much more like the consciously organized, planned, and structured groups of Western society in spite of a lack of any kind of evidence that natives actually thought of them in that way. ‘Groups’ were a function of our understanding of what the people were doing rather than of what they made of things (Wagner 1994: 97).
Anthropologically, it might seem ironic that just as global industry is (re-) discovering the wisdom of Colonial Codification, anthropology has focused its attention away from the normative, the collective and the bounded in social life. In more recent years, a variety of theoretical developments have caused the pendulum to swing away from an acceptance of the collectiveness and corporateness of indigenous landholding units, and towards an understanding of the unstable, porous, nomadic, centripetal and fluid characteristics of such groups.[1] Yet the increasing contemporary struggle over control of land and resources has produced a movement in the opposite direction: towards some evolution of universal principles for the protection of property rights, and the codification and legal protection of indigenous customary law around the world. The present panoply of laws (increasingly subject to international codification and recognition, most notably through the United Nations and other international agencies) that define a wide range of indigenous customary institutions is consequential for the future of indigenous custom, practice and self-understanding. Although aspects of this have received relatively recent public exposure,[2] Australian anthropologist Kenneth Maddock put the matter succinctly somewhat earlier:
It is important to distinguish, in principle, between rights originating in modern statute law and rights having some other origin. Otherwise, anthropologists will smuggle into their accounts a legal view that, intended to express a traditional reality, has been shaped in its original formulation and subsequent development by the exigencies of legal policy and reasoning (Maddock 1989: 173, emphasis added).
The first problem in PNG law is that nowhere does it contain a definitive definition of what a ‘landowner’ is. As Filer has convincingly argued in the PNG context, the issue of ‘landownership’ as such is largely an artifact of the recent mineral exploitation in PNG:
There is a sense in which Papua New Guineans have only become landowners over the course of the last 10 years … the question of whether ‘clans’ exist as ‘landowners’ in the fabric of national identity is the question of how ‘clans’ have actually become groups of landowners claiming compensation from development of their own resources (Filer 1997: 162, 168).
The genesis of the concept of the landowner can partly be traced to the various preambles and explanatory addenda to the LGIA:
Developers of resources in PNG must by necessity involve the owners of land because all land where resources are located is privately and communally owned. Developers are concerned that the landowners in the project area fully support their project. In order for this to happen landowners must manage the physical, social and economic impact of the resource development. A critical element of impact management is the distribution of direct cash benefits arising from land use, royalties, and equity. If the impact of the project is so great as to destroy the social fabric then the security of the project will be greatly eroded. The ILG system is not just [an] exercise to distribute cash benefits. The ability to fairly distribute cash benefits, though important, is only one outcome of a successful ILG system (Power n.d.(a): 1).
This points to the second problem: there is a critical ambiguity in the above statement. Is, or is not, the chief function of the ILG system to distribute benefits from commercial developments such as petroleum extraction, mining and logging, or should it have some wider and more synergistic function with the traditional social units in PNG, specifically with respect to the protection of land rights and their customary form of transmission? Having worked with the Foi, both before and since the advent of the oil project, there seems no doubt in either my mind or theirs: the ILG is perceived solely as a petroleum benefit-receiving body, and all of the uses to which it has been put by the Foi (and other people within the petroleum project area) have been exclusively related to this function. It has not yet been put to use to attend to matters pertaining to ownership of land per se, as it was originally designed to do. PNG's Land Titles Commissioners made this same point in one of their judgments on a dispute about landownership in one petroleum project area:
The issues contested in the hearing is [sic] not only limited to customary landownership. There are arguments on public policy considerations, application of the Land Act and the Petroleum Act for purposes of settling claims of rights of parties owning land affected by the petroleum project (Kanawi et al. 1998: 11).
Rather than the ILG mechanism serving to legally ‘modernise’ the existing system of land proprietorship, the Foi and other oil project area peoples have employed it as the unit of political struggle over petroleum benefit sharing, much to the consternation of CNGL’s External Affairs Office, the PNG Department of Petroleum and Energy and the PNG Department of Lands, which deal with landowner relations in petroleum licence areas.