There is thus a fundamental conflict at the heart of the ILG mechanism which crops up constantly. This conflict can be stated as follows: the LGIA was purportedly designed to enshrine the traditional landowning group as a legal landowning corporation. The purpose of this was to give legislative protection to the traditional landowning units in any given area of PNG. Take the following list prepared by Power under the heading of ‘Measurable Indicators of Incorporated Land Group Effectiveness’:
The most important deliverable of the land group incorporation process is the identification and training of a cadre of village land workers, being villagers, old and young, keen to become involved in the learning process in the transition from an oral to a written society. These are the contacts in the villages that can relate to government and developer extension officers in developing management for the ILGs. Answers to the following questions will illustrate the degree of progress made.
Does the ILG have a recognized ‘custom expert’?
Does the ILG recognize a ‘custom expert’ from another clan in the village?
Does the ILG have a literate facilitator?
Does the ILG have access to a literate facilitator within the village?
Have any of these ILG functionaries ever attended a training workshop to help them develop their skills?
How many outstanding land disputes over either ownership or use rights between resident clans are in the village?
How many outstanding land disputes over either ownership or use rights are there with outside clans?
Does the village recognize a Dispute Settlement Authority (DSA) empowered under the Land Groups Incorporation Act?
How many times has the DSA met since the formation of the village ILGs?
Does the ILG have a Minute book?
Does the ILG have a corporate seal?
How many formal decisions have been made by a given ILG in the last 12 months?
Were these decisions recorded in a minute book, signed off by the Committee and kept for future reference?
Does the Village Development Committee take an active interest in ILG functions, activities and responsibilities?
Is there a formal member of the VDC responsible for ILG matters?
Enumerate any ILG related activities pursued in the village.
Does the ILG have any customary obligations to outside clans that should be addressed by the ILG Committee or are these obligations more on a family basis?
Does the village have any permanent residents from other villages?
Which ILG(s) has responsibility for managing these people?
What land rights do these guest residents have?
When did the guest residents first come to the village?
What is the status of guest residents in regard to land management? (Power 2000: 99).
These questions invoke the Western terms of corporation. A corporation is a group that is legally treated as a single individual. The LGIA assumes that the landowning unit acts collectively in its collective interest. It assumes that the decisions that a landowning unit makes are similar to the decisions a corporation makes.
This is not the case, at least not among the Foi. It is not demonstrable that the local clan acts collectively to further the interests of the clan as a collective unit. What anthropologists such as Roy Wagner (1974), Marilyn Strathern (1985), Simon Harrison (1993) and myself have described as the ‘givenness’ of connection and obligation in PNG sociality has been mistaken by the architects of the LGIA as evidence of communal, corporatist ownership and decision making. If this is so, then the act of incorporation cannot protect the customary status of the local Foi clan — it can only force it into new forms which can take on the functions that the LGIA assumes such units will undertake.
The conclusion we must face is that traditional custom cannot be protected by an act of legislation. The legislation is composed and empowered by a cultural and legal system very much at odds with the way local ‘traditional custom’ arises and is implemented. To again quote from Power:
The [LGIA] actually spells out this relationship between land and group in the opening words: ‘Being an Act —
to recognize the corporate nature of customary groups; and
to allow them to hold, manage and deal with land in their customary names and for related purposes.’ [Original emphasis] …
Thus the purpose of the Act is to empower groups owning land communally to manage their land. NB The Act does not narrowly confine itself to the aspect of managing benefits coming to the owners, though it clearly accommodates this.[7]
In their judgment on the Gobe dispute, the Land Titles Commissioners said that:
Where claims arise in that [sic] a certificate is issued under the provisions of the Land Groups Incorporation Act amount to title in land, such claims are not valid on the basis that [sic] the characteristics of the ‘title’ referred to in the provisions of Section 1 of the Land Groups Incorporation Act is [sic] not the same title to land ownership in that it [sic] relates to ‘title to name’ of the customary land owning group ... (Kanawi et al. 1998: 31).
And again:
Sowolo clan members by their own admissions have allied with the Haporopakes and have formed a common clan unit sharing social values, protecting and using various common land marks. This traditionally binds the persons as a clan unit and therefore one cannot retract from [sic] those customary obligations for the sake of some monetary benefits derived from the land at this time (ibid: 64).
Thus, insofar as the ILG is acknowledged by the Commissioners to have been utilised primarily as a unit receiving petroleum benefits, it must constantly work against what they perceive to be the interests of the traditional customary landowning group.