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A variety of agencies engaged in the business of developing (or even conserving) the natural resources which are located on, in, or underneath the huge swathe of customary land in Papua New Guinea (PNG) must also deal with the absence of any systematic record of the social or territorial boundaries of the ‘land groups’ which are generally thought to be the collective owners of such land. The strategies which they adopt to make amends for this deficiency are shaped, not only by those national laws and policies which apply to the ownership of customary land, but also by those which regulate the distribution of compensation payments and community benefits to customary landowners within specific resource sectors. At the same time, the past experience and future prospect of such deals and dispensations has its own effect on the way that ‘land groups’, ‘land boundaries’, and ‘group boundaries’ are represented in the mental landscape of the actors who negotiate them, whether at the level of the village or the level of the state.
In this chapter, I propose to examine the interaction of law, policy and ideology in the social construction of ‘land groups’, ‘land boundaries’, and ‘group boundaries’ with reference to specific moments in the recent history of ‘resource development’ in PNG. Here we find a long debate about the significance of ‘customary land law’ which reveals the existence of at least two distinct forms of agrarian populism opposed to the resource-dependent form of capitalist development which has come to dominate the nation’s formal economy. Here we also find that institutional mechanisms originally established to facilitate the growth of an indigenous peasant economy have since been applied to an entirely different business, which is the validation of ‘landowner consent’, the accountability of ‘landowner companies’, and the distribution of ‘landowner benefits’, first in the petroleum and forestry sectors, and much more recently (and only partially) in the mining and agricultural sectors, of this resource-dependent economy.
It was in the petroleum sector that I first encountered the concept of ‘land group maintenance’, when I was part of a formal policy process whose remit was to rationalise the distribution of landowner benefits to an increasingly disorganised array of beneficiaries. I have added the word ‘boundary’ to the title of my chapter, because the relationship between land boundaries, group boundaries and benefit distribution was the fundamental point at issue in this process. The art or practice of land group boundary maintenance also counts as an example of the management, manipulation or negotiation of a thing called ‘custom’ in the name of another thing called ‘development’. This, it might be said, is nothing but the art of the impossible, because there is no way of reconciling custom with development, either in theory or in practice. But I would argue that this opposition or antithesis is broken down and reconstructed in those practices of management and resistance which belong to real and specific social relations. It is not a gulf which exists outside of these relations, and which can therefore cause them to vanish in that world of wishful thinking where ‘custom’ is the light by which ‘development’ is shown to be a false god not worth worshipping.
When anthropologists reflect on the topic of customary land tenure in Melanesia, their reflections are often configured in terms of the triangular relationship between ‘land’, ‘groups’, and ‘boundaries’, or the tripartite relationship between landowning groups, land boundaries, and group boundaries. The sort of question which arises from this configuration is whether it makes more sense to say that land belongs to groups or groups belong to land. This question can be rephrased by asking whether land boundaries are more or less substantial, flexible, or porous than group boundaries. Should we say that the central feature of the customary ‘system’ of land (or resource) tenure is the division of the physical landscape into named parts, to which human beings are attached by various means, or through which they move by various routes? Or should we say that the central feature of the system is the division of the social landscape into named social groups, which exercise various kinds of rights over pieces of land or other physical resources? Some anthropologists may think of these as purely ethnographic questions about the variable nature of ‘local custom’, but they are also questions posed and partially resolved in the realm of public policy, where ‘local custom’ is incorporated into the regulation of a modern economy.
If anthropologists turn their attention to the Land Groups Incorporation Act (LGIA), enacted by PNG’s House of Assembly in 1974, they find that the Act is configured in terms of the triangular relationship between ‘land’, ‘groups’, and ‘custom’, in the sense that it provides an avenue for the legal recognition of customary land groups by means of their ‘incorporation’. But the Act makes no mention of ‘boundaries’. It makes no provision for the demarcation of land boundaries, and is as vague as any law could be about the nature of the ‘custom’ which determines the membership, and therefore the boundaries, of the land groups which can be incorporated. In other words, the Act underlines the significance of the questions which anthropologists would normally want to ask about customary land tenure, but carefully refrains from giving any kind of answer.
While the LGIA has nothing to say about the demarcation of customary land boundaries or the registration of customary land titles, it does seem to assume that the process of legal ‘incorporation’ will help customary land groups to ‘develop’ their land. So if the Act fails to answer questions about customary land tenure, it does raise other questions about the triangular relationship between ‘custom’, ‘law’ and ‘development’. These are also questions of interest to anthropologists. But when anthropologists try to interpret the significance of a law like this by finding answers to such questions, they often seem to arrive at a dead end, which is a portrait of ‘custom’ as a distinctly Melanesian way of reflecting on a generic process of modernisation, commercialisation or globalisation (Keesing and Tonkinson 1982; Errington and Gewertz 1995; Foster 1995). Speakers of the Neo-Melanesian language may talk about ‘custom’ (kastom or kastam) in ways that sound quite exotic to Western ears, but that does not prevent customary law from being part of a national discourse of development in which Western voices also participate — and these are not just the voices of ethnographers. The LGIA was one of a number of laws enacted around the time of Independence which purported to make a contribution to the fifth goal of the National Constitution, which was ‘to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organisation’ (see Fingleton, this volume). Many anthropologists would argue that any attempt to insert or transform Melanesian custom into state law is doomed to failure, precisely because the state itself is a European imposition on Melanesian custom, and not an indigenous form of political organisation. Some lawyers might agree with them, but lawyers are also adept at the art of making fine distinctions. Robert Cooter, for example, would agree that the State of PNG is not in a position to make effective use of national laws which aim to incorporate customary land groups or register customary land titles, but if local and district court magistrates make sensible judgements when customary land rights are disputed, then Melanesian custom will slowly turn into a Melanesian form of common law, in the same way that ancient English custom evolved into English common law (Cooter 1989).
The point at issue here is not the flexibility of custom, but the form of its relationship to law. My argument would be 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. This is not to deny the possibility of reconstructing the form of social practice which preceded the colonial intrusion, but rather to assert that the concept of ‘custom’, as an object of contemporary thought and practice, as a ‘road’ which is distinct from other roads, is something which only makes its appearance at the end of the colonial period, and which could only make its appearance when ‘truly traditional’ or pre-colonial forms of social practice had already been consigned to the far horizon of the late colonial imagination (Filer 1990, 2006a). In other words, custom needs here to be conceived as something which develops out of law, not something which develops into it. And this is simply one aspect of the wider form of ‘development’ through which colonial capitalism develops into something else — whatever that might be.
We can put this point about custom in another way, if we say that the ‘vertical’ relationship between landowners and developers has long since subsumed the ‘horizontal’ relationship between ‘traditional’ political communities, and then go on to observe that the internal constitution of the ‘landowning community’, which now reflects this vertical relationship, has likewise overwritten the ‘traditional’ networks of social reciprocity which once dissected and shaped these local political boundaries.[1] So custom is not the starting point for a journey along the road, or down the river, which is called ‘development’. Custom is a diversion from that road, or an island situated in the middle of that river, a subordinate feature of a more general set of social relations. To go further down this road or river, we may think about the construction or negotiation of ‘custom’ as something which takes place within the several forms of ‘development’ which exist at the intersection of different branches of production (or economic sectors), social formations (which might be construed in either political or cultural terms), and stages or periods in the history of the global capitalist system.
As for customary land tenure, we need to recognise that ‘land’, ‘groups’, and ‘boundaries’ are things which were initially removed, abstracted or alienated from the traditional social landscape by the policy and practice of colonial administration (MacWilliam 1988). The shape of their triangular relationship then became part of the further removal, abstraction or alienation of custom from law in the subsequent process of ‘national development’. Instead of thinking about the tripartite social construction of ‘land groups’, ‘land boundaries’, and ‘group boundaries’ as a recoverable form of ‘custom’, or as a sort of bridge between ‘custom’ and ‘development’, I propose to think of it as a pattern which exists inside that form of development which is commonly called ‘resource development’, and thus reflects that tripartite social relationship between Developers, Landowners and the State which I call ‘resource compensation’ (Filer 1997).