More than half a century has passed since Paul Hasluck, in his capacity as the Australian government minister responsible for the Territory of Papua and New Guinea, decided that its economic development would necessitate ‘a change in the basic native concepts of rights to use, occupy or cultivate land’ (Hasluck 1976: 126).^[8] A legal framework for the registration of ‘native’ land or ‘customary’ land had already been introduced in 1952, and the Land Tenure (Conversion) Act of 1963 provided a further opportunity for members of landowning communities to secure individual title by mutual agreement with their fellow members. But these measures did not have the effect of ‘liberating’ large areas of customary land from the constraints of custom, even if that was their intention (Simpson 1971: 7). Instead, many of the traditional owners of land which had been alienated for agricultural purposes during the early colonial period were agitating for its resumption, and their cause was espoused by the more vocal ‘native’ members of the House of Assembly during the 1960s. One of the first landmarks in the transition to Independence was the establishment, in 1972, of a Commission of Inquiry into Land Matters (CILM) whose membership was entirely indigenous, even though the support staff were all expatriates (Fingleton 1981; Ward 1983). The CILM’s reassertion of the primacy of customary title was confirmed by several provisions of the National Constitution, by the LGIA of 1974, which was intended to facilitate the resumption of alienated land, and by the Land Disputes Settlement Act of 1975, which established a system of Local and District Land Courts to resolve disputes over customary title (see Fingleton, this volume).

At the time when the CILM was making its deliberations, it was calculated that three per cent of PNG’s land area had been alienated, while 97 per cent remained under customary tenure. For the last 25 years, these figures have been repeated with such frequency, and circulated so widely, that they now count as ‘common knowledge’. If true, this would seem to indicate that the CILM was at least successful in defending customary land from any further acts of alienation, and might even be taken to indicate that the whole system of land tenure has been set in some kind of post-colonial concrete. By 1989, however, the 600,000 hectares of alienated land which could still be found in the records of the Lands Department was more like 1.3 per cent of the total surface area (Larmour 1991; Turtle 1991), which would suggest that a substantial proportion of land formerly alienated to the colonial plantation economy had already reverted to customary ownership or control. And this estimate was made before the plantations on Bougainville were effectively ‘resumed’ in the wake of the 1989 rebellion.

But the legal instruments established on the recommendations of the CILM seem to have been no more effective in facilitating this process of resumption than the legal instruments of the late colonial administration had been in facilitating the creation of a class of small freeholders. Fifteen years after the passage of the Land Tenure (Conversion) Act, less than 10,000 hectares of land had been subject to legal tenure conversion (Cooter 1989). Fifteen years after the passage of the LGIA, only eight land groups had been incorporated under the Act (Whimp 1995). In both cases, the demand for conversion or incorporation was much greater than the capacity of relevant government agencies to meet it. One might therefore speculate that the net ‘loss’ of alienated land was as much a function of the loss of record-keeping capacity in the Lands Department as it was a function of a more substantial social process.

This is not the only respect in which the noble goals of the CILM were subverted by the force of bureaucratic inertia. The LGIA placed particular emphasis on the constitution of customary groups, rather than the ownership of customary land, because the CILM had recommended a separate piece of legislation for the demarcation and registration of customary land (Taylor and Whimp 1997; Fingleton, this volume). This was intended to supplant the legal mandate of the Land Titles Commission, whose own attempts to demarcate and register customary titles during the late colonial period had not met with great success (Morawetz 1967; Hide 1973; Jessep 1980). The same recommendation was repeated, 10 years later, by a national government Task Force on Customary Land Issues, and the buck was then passed to the Land Mobilisation Programme, whose achievements included the counting of those 600,000 hectares of alienated land. But the only piece of legislation which ever reached the statute books was in the ‘pilot province’ of East Sepik, where the provincial government enacted a Customary Land Registration Act in 1987 (Fingleton 1991, this volume; Power 1991).

In retrospect, it is worth noting that much of the academic and public debate on the subject of customary land tenure during the first 15 years of national independence, from 1975 to 1990, was constructed around the assumption that agriculture was indeed the backbone of the national economy. A substantial part of the debate therefore concentrated on the ancient question of whether customary tenure was or was not an obstacle to the development of capitalist agriculture, and sought to assess the motives and capacities of those groups or classes — rich peasants and poor peasants, largeholders and smallholders, indigenous and foreign members of the bourgeoisie, or simply ‘capital’ and ‘households’ — who were trying to push the boundary between customary and alienated land in one direction or another (Hulme 1983; Donaldson and Good 1988; MacWilliam 1988). Even those commentators who eschewed the language of class struggle were primarily concerned with the question of what the State could or should do, by means of policy or legislation, to meet the material needs and aspirations of landowners whose main economic activity was farming or gardening (Cooter 1989; Ward 1991).

While the territorial expansion of small-scale commercial agriculture has almost certainly been one of the main forces behind the apparent resumption of alienated land, this has not made any impact on the territorial expansion of the four branches of heavy industry. Their occupation of customary land does not entail the liquidation of customary title, but depends on various forms of partial and temporary ‘alienation’ which are allowed by the laws pertaining to each sector. The mining companies get Exploration and Mining Leases, the oil companies get Petroleum Prospecting and Development Licences, the logging companies get Timber Permits, and the oil palm companies have come to rely on the so-called the ‘lease-leaseback’ clause in the Land Act which was originally meant to facilitate the establishment of 20-hectare coffee blocks in the central highlands (McKillop 1991). Once we escape the blinkers imposed by the technicalities of land law, we can see that the social dynamics of the ‘customary’ landscape are not determined by the capacity of customary landowners to resist or roll back the process of alienation, but rather by their capacity to enter into, and benefit from, the social relations of compensation which reflect and condition the process of resource development.

If the CILM did not intend the LGIA to function as a surrogate for the demarcation and registration of customary land titles, its members also failed to imagine the use which the State and the Developers would eventually make of this law in their efforts to manage ‘community relations’ in the sphere of heavy industry (Sinaka Goava, personal communication, September 1998). While their report did envisage the possibility that Incorporated Land Groups (ILGs) might serve as a vehicle for landowner participation in the development of forestry projects, it expressed grave reservations about the degree of freedom which was apparently granted to landowners by the Forestry (Private Dealings) Act of 1971. This law allowed customary landowners to bypass the provisions of the Forestry Act by selling timber rights to a landowner company under the terms of a Dealings Agreement, which only required the assent of the Forests Minister, and allowed the landowner company to enter into a Logging and Marketing Agreement with a logging contractor, who was then able to extract and sell the logs with minimal government supervision.

To the best of my knowledge, no land groups were ever incorporated for this purpose.^[9] In 1989, a Commission of Inquiry into Aspects of the Forest Industry (the Barnett Inquiry) found that the Forestry (Private Dealings) Act had simply enabled logging companies to cheat local landowners of the benefits promised in the Logging and Marketing Agreements, and recommended that the law should be repealed (Barnett 1992). And so it was, with the passage of a new Forestry Act in 1991. The closure of this ‘loophole’ is significant because it underlines one of the main points of convergence in the social relations of resource development on customary land, which is not so much the conflict of interest between Developers and Landowners, but the manner in which a steadily disintegrating State continues to interpose itself as a sort of ‘middle-man’ in the legal form of their relationship. The forest industry was thus restored to its ‘rightful place’ as one of the four branches of heavy industry which are firmly attached to the trunk of resource compensation.

The new Forestry Act also gave a new lease of life to the LGIA. However, the forest industry was not the first branch of heavy industry to accomplish this feat, and the process of land group incorporation does not have the same history or significance in each of the four branches. The common point of departure was the criticism levelled, by some individuals associated with some branches of industry, against the provision of the Land Act which allowed (and still allows) the Land Titles Commission or a Local Land Court to appoint ‘agents’ to act on behalf of undefined and unincorporated groups of customary landowners. Once appointed, these agents had (and still have) the power to transfer all manner of rights to the State, and to ‘accept any rent, purchase money, compensation or other moneys [sic] or things, and distribute that money or those things to the persons entitled’, whoever they might be. The law has assumed that these agents should be ‘customary leaders’ of some sort, but has never sought to specify the customs which create or regulate their leadership, nor even the type of customary group which they should be taken to represent (Taylor and Whimp 1997). The advocates of land group incorporation regard the process of incorporation as a way of saving custom from abuse by self-appointed leaders whose pursuit of ‘rent, purchase money, compensation or other moneys’ has no customary sanction. But how has this argument actually made its way through the four branches of heavy industry, why has it made more progress in some branches than in others, and what have been the practical effects of its partial success?