This land is our land

27/02/1994

This land is our land OF PAPUA New Guinea's land area of 45.3 million ha, the state owns only 600,000 ha, a colonial legacy known, with inevitable irony, as "alienated land". Forests cover about 78 per cent of the country: this is "customary land", neither documented nor registered but held nevertheless by 700 clans and sub-clans as community property. Although the government can legally take over land, it is politically too weak to exercise that power.

Under Melanesian land tenure, groups own land but families use them. Rights have traditionally existed for agriculture, hunting, fishing, house-building, collecting material (for instance, to construct houses), burial and resources for descendants.

Tenure is decided strictly by clan rules; membership to clans is mainly through descent -- either patrilineal or matrilineal -- and carries with it the right to use land. No individual can dispose of land. Lawyer Allan Marat explains that Papua New Guineans believe they own the land because they consider it their beginning and end.

When purchasing customary land, landowners in PNG ardently believe in the maxim, "Let the buyer beware." The purchaser can be certain that the land is his only when he deals with a bona fide, "true" owner, not otherwise. "All these cultural realities," says Marat, "provide a fertile arena for politics."

This politics can at times be volatile. The fact that trees and vines (coconut palms, breadfruit trees, pandanus palms, betel-nut palms, pepper vines), and coffee, cocoa and coconut plantations, are distinct from land and are virtually always individual property, can occasionally lead to intra-clan tiffs over access.

Intense debate All this makes for intense debate in PNG. There are two major issues: first, should the state "alienate" land from customary groups for the public good? Second, what legal framework can encourage customary landowners to use their land for their own and the country's development? What could convince clans to relax their grip and use their land as collateral for bank loans and for entering into deals with resource developers like miners, loggers and housing construction agencies?

Developers -- the government, companies and aid agencies -- argue that the uncertainty in pinpointing land titles is a big obstacle to investment (See box). PNG public services minister, Sir Albert Kipalan, informed Parliament in March 1993 that over K500 million worth of World Bank projects were held up for several years because of excessive compensation demands arising out of contested land ownership. The minister said, "Our people must understand that you can have either compensation or development. You cannot have both."

But compensation is a key issue. The former customary owners of land sold to mining interests are demanding a share of the profits. In fact, the secessionist movement in Bougainville erupted in the late 1980s out of popular anger at inadequate compensation.

There were several unsuccessful pre-Independence attempts to legislate customary ownership rights, the dubious primary motive of which was to help expatriate colonisers acquire tenurial security. In the 1950s, the emphasis shifted to individualising land ownership, but these legislations too failed to work.

Widespread dissatisfaction with colonial land laws prompted a "Commission of Inquiry into Land Matters' to be constituted in 1973. The commission's report led to several land and land-related laws being enacted after Independence. But observers like Marat argue that even today, the government is "embarked on a systematic strategy to circumscribe, and in some instances usurp, the customary rights to natural resources."

'Super law'
As James Fingleton, an expert of PNG's land laws, points out, the government overrides even the general law set out in the Mining Act, and the environment-related acts pertaining to special development projects. "This 'super-law' approach," he explains, "reflects the major contributions such projects make to the national economy." However, state intervention in customary land is minimised by a Constitution that provides PNG citizens with protection against unjust deprivation of land.

Anybody who wants access to customary land in PNG must deal with primary landowners, who in turn are reined in by the Land Act enacted 30 years ago during the colonial period. The Act provides that "a native has no power to sell, lease or dispose of native land, otherwise than to natives in accordance with native custom." This has so far meant a very conservative use of land, but modernisation, urbanisation and resource exploitation are creating fresh, and inescapable, demands.

The "protection" provided to customary land is in truth double-edged: while assuring ownership to customary landowners, it discriminates against them; because unlike owners of alienated land, they cannot use their land as collateral and take loans. There is, therefore, a demand to set up a system to identify and register landowning groups.

Two laws -- the Land Groups Incorporation Act and the Business Groups Incorporation Act -- allow landowners to organise themselves to manage land for business and other economic purposes. "The importance of (these) laws," Fingleton says, "cannot be overstated, for it means that the legal system of PNG recognises the corporate nature of that social unit which exists at the intermediate level between the state and the individual." These rights allow landowners to play a key role in the management of their environment -- from pollution control and logging to the imposition of plant quarantine regulations and nature conservation regimes.

The 1980s saw numerous techniques to increase economic opportunities for landowners. But the fear of losing land to debt has consistently led to limits being placed on their freedom to mortgage or sell land. But then banks have limited rights to take over land on default of loans. In the space between, the land's traditional customary character has persisted.

An alternative to registration
This robust tradition raises a question: how necessary is land registration? At a seminar organised by the Institute of Applied Social and Economic Research, Robert Cooter argued that a radically decentralised alternative to registration is possible, indeed necessary, because of the state's inability to take on a massive registration exercise. Since a geographically well-dispersed system of land courts and mediators already exists, the state should encourage the emergence of an indigenous common law from the separate decisions of magistrates.

This litigation process has led to the creation of Melanesian legal principles, says Cooter. A common law process is being formed as the courts work custom into formal law. Legislation, argues Cooter, cannot do better than this.

Cooter's thesis effectively answers numerous critics -- including the World Bank -- who say that customary land relations are breaking down in the face of modernisation and that the ability of communities to self-regulate resource use is diminishing. "Customs for regulating land arise in PNG from practical interactions of kinsmen," he argues. "A kinship group, in which people are in intimate contact on a daily basis, does not require a set of formal procedures in order to adjust its rules."

PNG is undeniably a global anomaly. Nevertheless, the situation begs a question: Can it become a global paradigm? The problem of marking turf between tradition and modernity in PNG is producing a rich experience in resource management by community groups.

To be fair, the state does appear to be recognising the growing resentment of the landowners over development projects. Since the Bougainville rebellion, the state has introduced two mining initiatives: one is the Development Forum, which involves tripartite negotiations between the national government, the provincial government and landowners regarding projects, mutual rights and the obligations of each party. In 1990, the government also placed emphasis on social impact assessments of major projects.

NGOs, social workers and government agencies in PNG have a unique social and legal base to work on. PNG's customary groups have much more sovereignty over their resources than citizens' groups in almost any other country -- almost to the point that the groups resemble miniature "nations". Gandhi, who advocated the concept of "village republics" for India's 560,000-odd villages, would have been proud to see the unique Papua New Guinean way.

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