Part 3 - DEVELOPMENT DENIED:  customary land management neglect & the creeping balkanization of Papua New Guinea

By:  A.P. Power, Managing Director, Sago Industries Ltd, Port Moresby, Papua New Guinea © 2000

continuing from PART 2... Some examples will illustrate the problem and what the state and land groups must do to facilitate the solution.

Table No.2 Land Groups and Development

The way forward:  proposed legislative amendments

Much of what follows is drawn from the year long government and industry consultation relating to the benefits section of the new Oil and Gas Act 1999. This was written up by the author at the time but is here modified and added to in response to more recent experience.

Experience of the Petroleum and Forestry industries indicates that the Land Groups Incorporation Act is not being implemented correctly by the State, the Forest Authority, developers and by the landowners themselves to such an extent that the Act is being undermined and is unable to achieve its purposes. Though the Registrar of Title has taken responsibility for registration of groups there is no mechanism in place to provide quality control during incorporation nor support after incorporation both of which are needed if the Act is to succeed. Landowners are not being educated to the important potential of the Act in empowering them to manage their affairs and they see incorporation merely as a means to access project derived cash benefits.

The constitutional imperative to seek economic development by use of Papua New Guinean ways is still a long way off. It is the firmly held view of the present author that commitment by government to the management of customary land will go a long way to achieving the goal. Primarily this will require full support for the implementation of the Land Disputes Settlement Act and consistent use of the Land Groups Incorporation Act.

Having recognized the total inability of the existing Department of Lands and Physical Planning to adequately address customary land issues the following provides guidance for

• possible policy directives
• possible issue of regulations for the LGIA and
• possible legislative amendments to LGIA.

Guiding principles

• The State must act as a State to ensure that its legislation is given proper effect to achieve the purposes of the legislation.

  This principle refers to the need for a full implementation procedure to ensure that the Land Groups Incorporation Act is implemented with statutory provisions, administrative procedures and budgetary support in place. The Provincial governments have a key role to play in the implementation of the Act. A proposal for development of an implementation mechanism is proposed in Table No.3, below.

• The Land Groups Incorporation Act will be recognized and embraced as empowering legislation to assist landowning groups to manage their affairs in the 21st Century.

  This principle relates to the basic purpose of the LGIA. The effect of this principle is to state that consistent with the Constitution of Papua New Guinea, Incorporated Land Groups should recognize that principles of democracy and gender equality govern the dealings between citizens both within and between customary groupings. The purpose of the Act is therefore much broader than positioning members to receive a project-derived benefit. Only by developing the skills to handle the broader issues will Incorporated Land Groups be able to deal successfully with their role as participants in projects and distributors of cash benefits.

• The impact of legal recognition on the customary group will be significant

  Incorporation will involve significant changes and evolution of custom. Land Groups will take quite some time to appreciate the significance of legal identity and this will need to be addressed by a process of education/extension. For example, the understanding of the land group as a body corporate owning an estate is a long way off the general mind-set of the villager. However senior national bureaucrats thought that changes so brought about are seen as inevitable and necessary for customary land management in the 21st Century.

Interpretation

Now that the LGIA has had several years of implementation, practitioners feel the need to clarify many aspects because the existing Act encourages ambiguity which leads to misuse.

1 Land Group

"A land group is that group of people:

• who by custom have the right and the responsibility by inheritance or any other customary means to control their customary land and
• who can make fundamental decisions about their land without reference to other groups".
• This definition addresses the necessity to define the group that represents the ground. A supplementary principle is that land is prior to people.
• In many highland situations large areas within the land group borders have been cultivated for many thousands of years. These land parcels for all intents and purposes must be analogous to private land in a Western sense. The owner can dispose of the lands within limits set by group requirements. The land is privately owned but not absolutely owned.
• One guiding principle is that if the ground cannot be divided then the Incorporated Land Group should not be divided. A supplementary principle is that where practicable the group should delineate its entire estate in order to register.
• Special purpose ILGs for participation in mining and petroleum projects do not follow this rule. Claimants of interest in project areas cannot base their claim on specific land parcels but on a complexity of customary parameters that are recognizable to the land controllers. As long as the sharing mechanism between the beneficiaries is agreed to before incorporation then this system should work. Such groupings have been incorporated for the Hides Gas Project.
• Groups of claimants in Mt Kare cannot demarcate specific lands that correspond to their interest in the project area. By agreement they developing two mechanisms to meet their requirements.
• Major clans can register an ILG but include within their constitution several sub-groups and segments as beneficiaries identified by a "Certificate of Recognition".

• Sub-clans or segments incorporate with a clear agreement with the major clan that they have an irrevocable percentage of the benefit accruing to the major clan land area. This situation is not the usual situation in PNG but given the types of claims and interests that have been established in Mt Kare since the gold rush it had to be addressed.

  Accommodation of segments under the ILG of the primary landowning clan is one of the issues occupying the primary landowners and the interest-claiming segments in Mt Kare at the moment. The following points may offer a solution:

• Having an ILG at Mt Kare means that the land group is an independent owner of land within the SML.
• Owning interests over the same land that is claimed by another ILG is not the grounds for an independent ILG.
• Primary landowning groups seem reluctant to have segments recorded in their ILG. This has sound reasoning as there is the fear that the groups will maximise this and indeed try to take over the control of the ILG since they may outnumber the primary owners.
• On the other hand the interest owning segments are insecure fearing that their interests may be denied or overlooked by the primary ILG. Perhaps this can be overcome in the following way:
• The ILG committee can be "stacked" in favour of the owner group by having the decision making committee drawn entirely from the land owning group with the leaders of segments classed as advisors only. This gives security to the primary land owning group but also points out their responsibility for managing the entailed interests of segments.
• The owner ILG must grant each interest-claiming segment a "Group Recognition Certificate" under an ILG MOU, as a beneficiary under the ILG. This certificate will outline:
  • The basis of recognition (relationship and custom history stories)
  • The leaders empowered to discuss and negotiate with the ILG Committee
  • The basis for sharing of any beneficial interest be it in the form of a once off payment or allocation of a percentage of all ILG income or whatever.
  • Identification of the sub-group leader empowered to handle and distribute this sharing to the sub-group. (Agents)
  • These certificates will form a part of the ILG constitution dealing with management of the ILG.
  • Depending on sharing formula sub-group can have own passbook for direct payment.
• The composition of the group will be determined primarily but not exclusively by descent whereby the rights to land are inherited and determined according to custom. In this context also residency or occupancy of the land is of prime importance as permissive occupancy or the principle of adverse possession qualify or determine rights.
• There is no need to incorporate land groups composed of incorporated land groups because it contradicts the definition and such a grouping of entities may be more appropriately accommodated under other legislation such as the Companies Act. (It is recommended that S.5(5) be deleted).

2 Land Group Member

• A land group member is a member of the controlling group by virtue of descent, inheritance, or other customary means and is recognized as such by all other members of the controlling group.

3 Land Group Beneficiary

• A land group beneficiary is an individual entitled to benefits derived from any land group within which his/her interests are recognized.

  The purpose of these definitions is to clarify the situation where individuals are claiming that having interests in more than one land group automatically makes them controllers and therefore members of more than one group.

S.5 Manner of recognition

It is recommended that in order to tighten up the Act and prevent registration of spurious groups S.5 be expanded to include further requirements, namely

• Genealogies where the controllers of the proposed land group are a descent group.
• At the time of incorporation a census must be conducted of the land groups in a given locality be it a village or parish or whatever collection of ILGs is appropriate.

  This recommendation is much more specific than the existing requirement under S.5 (2)c requiring a list of members. It has the added advantage that the Village Census Book to be used is the one produced by the Department of Provincial Affairs and this provides an official government record that can be checked against the ILG documentation.
  
  

• Role of Social Mapping

  Where possible Social Mapping exercise should be carried out to, amongst other things to determine, an appropriate level to incorporate land groups.

  There is a tendency for village people to want to have their incorporated land group as small as even family members. This is a result of greed or mistrust but it cannot be tolerated as the land is held by the group and not the family members even where they have prior management or usufructory rights.
  
  

• Demarcation of the estate of the proposed land group

  In an ideal world, demarcation of all land group boundaries would be accomplished and mapped before incorporation. For practical reasons this will not be possible. However, it is the view of the Lands Department that there is an ultimate need for demarcation and mapping of group land parcel boundaries. Demarcation is seen as an important part of the land group incorporation process during incorporation and a major role of the Incorporated Land Group.

  It is therefore recommended that amendments be drafted

  • to require that the land group undergo preliminary demarcation by detailed land investigations and construction of property lists that describe land parcels in detail and are recognized by the appointed Dispute Settlement Authority acting as a vetting authority.
  • To assist this process, incorporation will be systematic as is done for most projects), rather than sporadic. (This will ensure the use of standard land investigation techniques by requiring neighbours to become involved in land descriptions. cf. role of DSA as vetting authority)
  • That once incorporated the ILG be required to complete the demarcation of its land properties within an agreed time frame. Use of GPS technology can greatly expedite this exercise replacing costly Class 3 Rural Survey by chain and compass. (Properties under dispute can be recorded as "under dispute".)

S.8 Contents of the constitution

Guidelines for the development of ILG constitution will be expanded to emphasize that the constitution provides power to the group but also imposes obligations, e.g.

• Fiduciary clauses such as in Draft Constitution S.10 give immediate effect to subjecting the group to PNG courts to redress matters relating to financial mismanagement. These clauses could fit into other Sections equally well.

10 ACTS OF LAND GROUP BINDING ON ALL MEMBERS

(1) Any acts taken by the land group in accordance with this constitution are binding on all members of the land group.

(2) Any loss damage or deprivation of any money or property or the use thereof caused by or arising from the actions of any individual member or members acting invalidly shall be actionable by such members suffering such loss, damage or deprivation against the perpetrators of such invalid action in any statutory court of law in Papua New Guinea.

(3) It is expressly provided that by the adoption of this constitution by the clan members of the ............... clan, that all members of the clan agree to subject themselves to the full jurisdiction of all statutory courts of law of Papua new Guinea, and without limiting the generality of the foregoing, in particular it shall not be necessary for any statutory court of law of Papua New Guinea to enquire as to whether any clan member appearing before it shall have consented to the jurisdiction of the Court; notwithstanding any provisions of the Land Group Incorporation Act to the contrary.

• Accepting a Dispute Settlement Authority including members from other groups, and even from the Local Level Government, subjects the group to a mediation process which is prior to but analogous to the LDSA access to any courts.
• The constitution must make an effort to outline the basic customary principles that will be used to guide the ILG Committee in management of ILG resources including the distribution of cash benefits or cash income. In this way non-member owners of interests in ILG lands (beneficiaries) will be confident that the incorporation process will not deprive them of interests. At the same time the ILG members (controllers) will be protected against unwarranted interference in the running of their ILG by outside interest holders.
• A "Certificate of Recognition" mentioned above fits into the constitution in this context.

  A basic principle here is that the state has no competence in the administration of custom so should leave it to the experts, the customary groups themselves. At the same time the state must not allow its laws to be used to distort custom to the disadvantage of some citizens. (This is what has happened in the Foi ILGs)

  Reference here can be made to the definition of members (title holders) compared to beneficiaries who have interests (usufructory right holders) in the clan land but are not members of the land controllers by descent group or by other customary means.

S.13 Powers of Incorporated Land Groups

• Dealings in Land
• S.132 of the Lands Act must support the powers of ILGs, envisaged under the LGIA, enabling the ILG to lease certain categories of land to anyone. The concept of private ILG land must be distinguished from public ILG land.
• Private ILG land: that land the land group would not want to be settled on by non-ILG members.
• Public ILG land: that land that the group can lease for business purposes without restriction as to who can use the land.
• A third category of land is private property held by individuals particularly so in many parts of the highlands.

  Once a land group is incorporated it is empowered to deal in land and related matters. Apart from the restriction imposed by S132 of the Land Act mentioned above the following amendment to the LGIA is suggested:

  • S.13(3) of the Land Groups Incorporation Act restricts the registering of an interest in land by a group member. It is recommended that when a group issues a Clan Land Usage Agreement to one of its members, this lease should be able to be registered.

    This clause is to give certainty to group members who wish to pursue individual businesses on group property. In particular it gives some security to the lesser members of groups (e.g. non-title holding members) against discrimination in years to come once their business initiatives are successful.

S.21 Dispute settlement authority

It is recommended that amendments to the Act shall provide guidance to land groups in defining their Dispute Settlement Authority in order to

• ensure that the DSA is a multi-group entity composed of nominees from each of the relevant involved land groups;
• ensure that the DSA is required to be convened and activated during the process of incorporation.(see vetting function below)
• empower the DSA to perform the vetting authority function for group properties and genealogies during incorporation.
• empower the DSA to mediate disputes both within a group and between groups in such a way that the LGIA now extends the mediation function to the Incorporated Land Group analogous to the Land Dispute Settlement Act. In this regard agreements mediated by the Dispute Settlement Authority are required to be registered with the Local Court for certification analogous with the Land Dispute Settlement Act mediated agreements. To be consistent with this require legal recognition by any courts having jurisdiction over land of the DSA mediation function where agreements are legally made and recorded.
• empower the DSA to give guidance to its ILGs in regard to constitutional changes to the group especially those related to membership and group properties.
• Recommend that outside members sit on the DSA, for example a member of the Local Level Government.
• Recommend that the Act be amended to define that only the ILG Committee and not individual group members can pursue a dispute between the group and others.

  Who has standing to say whether there is a dispute or not? It is suggested that the ILG Committee has standing and not a disgruntled individual i.e. if the Committee do not recognize a dispute then there is no dispute.
  
  

• Recommend that the Act be amended to empower non-ILG members to register the existence of a dispute with the Local Land Court once it has been brought to their attention. Lands Officers, Secretary of DPE acting on advice, or Local Level Government DSA member could qualify.

  The non-ILG representative could be empowered to trigger action under the Land Disputes Settlement Act even when the disputing land groups are deliberately stalling for their own purposes by saying no disputes exist when a dispute clearly does exist. This situation happened in Mananda and Moran oil fields and has led to distortion of custom.

• Consequent amendment needs to be made to the Petroleum Act S.84 to require that any claim to benefits by hitherto non-recognized claimants shall be deemed to be a dispute under the LDSA and that the dispute be automatically registered with the Local Land Court by the Secretary of DPE.
• Amendments to the Act or regulations will be recommended to strengthen the ties between the Local Level Government and the Incorporated Land Groups. Having an LLG Representative on the DSA is one such link.

Some examples will illustrate the problem and what the state and land groups must do to facilitate the solution.
..... continued in PART 4 ..... RETURN TO top of page

Reference

ARTICLE ABSTRACT

This paper examines the performance of governments over the last 25 years in relation to customary land and argues that there is a direct relation between this neglect and the negative development in the rural areas of the entire country. Furthermore there is a connection between neglect of customary land and the present tendency towards fragmentation or Balkanization of Papua New Guinea. The paper makes a plea once again for government to formally address management of customary land. We have the laws. We know what to do. We need to develop the political will to include all the population in development not just those in the modern sector.

The paper begins with a brief history of high points in development of the philosophy of customary land management in the last 30 years. The next section deals with the track record of successive governments and then goes on to make some practical suggestions as to the way forward towards involvement of all the land groups in the country in development.

By:  A. P. Power,
e-mail author A.P. Tony Power:  powerap@daltron.com.pg
Tony Power, Managing Director, Sago Industries Limited, PO Box 1907 Port Moresby, Papua New Guinea © 2000

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- Part 1 - article

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