Development denied - Anthony Power - Papua New Guinea 2000

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

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.

Introduction

In the 25 years since Independence successive governments have denied development to the vast majority of the population who own and live on 97% of the landmass of Papua New Guinea. Neglect of customary land tenure in spite of excellent investigations, reports and advice to government after government, has put a brake on development. This is so bad now that it threatens the very existence of the state. The crisis in Bougainville is the result of conditions that are not unique to the Island. Centralization of power followed by neglect and non-performance has resulted in loss of confidence in government bordering on contempt, all over the country. Many of the forces towards fragmentation are present in several other provinces besides Bougainville. Unlike Fiji and the Solomons we are not so much in danger of a coup but are already seeing the creeping Balkanization of the country. Bougainville is just the beginning. The fault lies fairly and squarely in Waigani with our elected leaders and the bureaucrats and party members and business cronies that serve them.

The Commission of Inquiry into Land Matters (CILM) (GOPNG 1973)

Good intentions abounded on the eve of Independence. In 1973 there were still no Papua New Guineans, no citizens, no nation, nor constitution, just village people who were members of their own customary groups. Under self-government, colonial forms of representative government were put in place from above, with Local Government Councils, Area Authorities and a partially elected and partially appointed House of Assembly. In the eight months before presentation of the CILM report in August 1973 to Administrator Leslie Johnson, the Commissioners visited all 19 Districts visiting 135 places, addressed 22,000 people at public hearings witnessed by 1050 witnesses, held 70 private hearings (only 7 of whom were nationals) and received 256 written submissions.

The overwhelming concern of the local people participating in the CILM (as distinct from the expatriate plantation and business sector) was for the greater participation of local people in economic participation in the about-to-be new nation.

The government response to the 130 recommendations of the CILM was

"The Department (Lands Surveys and Mines) has created a new Division responsible for Policy and Research to ensure implementation of the recommendations and to review lands policy in the light of changing circumstances. Land tenure systems are important not only in the obvious economic sense but also socially in Papua New Guinea. The Department controls all land registration but is trying to replace the existing highly complex and legalistic systems with simplified administrative procedures and to ensure greater decision-making authority at the local level"

"The Department exercises its powers over the granting of land and the sale of land to ensure a greater role for Papua New Guinean people in the economy . . ."(GOPNG 1974)

There were some positive responses to this Inquiry, the enactment of the Land Dispute Settlement Act and the Land Groups Incorporation Act, took place BEFORE Independence. The independent governments promptly forgot the Land Groups Incorporation Act and have neglected it to this day. The Land Dispute Settlement Act functioned well for a time but there was never a full commitment by government to give it support.

The rhetoric was there but the reality was far different. "The road to hell is paved with good intentions". The harsh reality has been that the Lands Department has never developed ANY capacity to facilitate customary tenure and thereby cut itself off from carrying out its mandate over 97% of the country. Why did this catastrophic deficiency never impinge on the thinking of the policy makers charged with implementing the CILM recommendations? Some action was taken on about 50 of the 130 recommendations but there was never any commitment. The focus was on the 3% of land and that is the end of it. That's where the money was!

The plantation acquisition scheme bought back many plantations in several provinces. How is it that in Bougainville at the time of the "Crisis" there were still 57 plantations, 49 of them expatriate owned comprising 22,000 hectares of prime land and coastline? After the first bout of purchasing the initiative lost momentum as the government found it hard to find the money. The lack of ability to see policies through to successful conclusions has been a recurrent pattern of PNG administration, nowhere more so than in relation to customary land. At the time of writing these are run down and in the hands of the banks. Redistribution is a sine qua non of any peace settlement on the island. So much for the Eight Aims!

Strategies for Nationhood (GOPNG 1974)

Within a year of the presentation of the CILM, in September 1974, the Cabinet Committee on Planning (Somare, Chan, Kavali, Guise) presented the "Strategies for Nationhood" spelling out for all, Papua New Guinea's Eight Aims. At this stage there was only one Provincial Government, Bougainville, declared in July 1974. The Eight Aims were:

A rapid increase in the proportion of the economy under the control of Papua New Guinean individuals and groups and in the proportion of personal and property income that goes to Papua New Guineans.
More equal distribution of economic benefits, including movement toward equalization of incomes among people and toward equalization of services among different areas of the country.
Decentralization of economic activity, planning and government spending, with emphasis on agricultural development, village industry, better internal trade, and more spending channeled to local area bodies.
An emphasis on small- scale artisan, service and business activity, relying where possible on typically Papua New Guinean forms of business activity.
A more self-reliant economy, less dependent for its needs on imported goods and services and better able to meet the needs of its people through local production.
An increasing capacity for meeting government spending needs from locally raised revenue.
A rapid increase in the equal and active participation of women in all forms of economic and social activity.
Government control and involvement in those sectors of the economy where control is necessary to achieve the desired kind of development.

The Papua New Guinea Constitution (GOPNG 1975)

Within one more year the Strategies for nationhood fed into the Goals and Directive Principles of the Papua New Guinea Constitution.

Equality and Participation: We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.
National Resources and Environment: We declare our fourth goal for Papua New Guinea's natural resources and environment to be conserved and used for the collective benefit of us all, and be replenished for the benefit of future generations.
Papua New Guinea Ways: We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinea forms of social, political and economic development.

To be fair, the newly independent government had a lot to contend with. However much was achieved in the decade after Independence but there has been a steady decline in performance in all of the above goals in the last fifteen years.

The Land Task Force Report of 1983 (GOPNG 1983)

Just 10 years after the CILM the lack of progress in customary land administration led to the establishment of a Land Task Force chaired by Kere Moi. The Task Force delivered a report to Lands Minister, Bebes Korowaro, in April 1983. After stating that the Task Force was very much in agreement with recommendations of the CILM the Report's proposals concerned the following issues:

registration of customary land
the formalization of direct dealings in customary land and
the establishment of a Rural Development Agency.

Methods used to accomplish these measures included protection against outright alienation, focus on communal title and lack of compulsion. There was an emphasis on land registration, use of the Land Groups Incorporation Act and the Land Disputes Settlement Act. There was recognition that the Lands Department was a total failure in terms of customary land and several alternatives were promoted.

One interesting thing is that the Task Force even drew attention to the need for action on customary land and food security. A very important topic today some 18 years later.

"The problems of inadequate domestic food production and declining productivity in cash crop production must be tackled immediately if Papua new Guinea is to avoid serious economic stagnation and unemployment" p4

"The major weaknesses in the present policy and system of land tenure and use..."

the highly centralized system of administration and complex legislation inherited from the colonial state
the continuing prohibition on direct dealing in land
the related assumption that customary land should only be alienated by the state and then become subject to the principles of western law
the failure to provide landowners means of access to capital or to technical expertise and assistance so they might develop their land.

The result is an unwieldy system unable to cope with the demands placed on it. Another consequence is a growing suspicion and hostility on the part of landowners to the role of the state in relation to land matters, whether it be land acquisition, compensation, or the state's apparent inability to channel the necessary resources to people interested in using land to exploit income earning opportunities." Moi p5.

Registration recommendations were a major part of the report. There was to be a major effort to incorporate land groups to empower them to deal in land and related matters. To make this happen there should be:

training of magistrates to form a cadre of specialist land magistrates nationwide
an institution to manage customary land
empowerment of ILGs to lease land directly
empowerment of ILGs to mortgage land in a limited fashion i.e. non-alienable upon default consistent with the Land Groups Incorporation Act.

The Policy and Planning Division of the Department of Lands and Physical Planning over the last 20 years has had numerous forays into the area of customary land policy, spurred on by provincial initiatives in the East Sepik Province, World Bank interventions and the dilemmas associated with exploitation of forest resources. Customary land administration certainly was an issue that received much attention by politicians, bureaucrats and academics over the years and much of this is detailed in Larmour 1991, in which one commentator noted:

"... the pre-independence legal regimes applying to customary land remain virtually unchanged, reflecting concerns, attitudes and government structures of the colonial era. They are characterized by paternalism - a distrust of the nation's citizens to protect and promote their own best interests and a heavy-handed legal and bureaucratic intervention in people's affairs". (Fingleton 1991)

This is just as true today as it was in 1991. The harsh reality is that no government to date since Independence has been able to develop the will to seriously address customary land tenure to empower landowners to participate in development. Things get worse. Not only have governments failed to empower landowners they have consistently mismanaged aspects of economic development impinging on customary land. Consider the following record:

Failure by all governments since Independence to take to heart the advice of the Commission of Inquiry into Land matters of 1973 (CILM)
The positive response to this Inquiry, the enactment of the Land Groups Incorporation Act, and Land Dispute Settlement Act, took place BEFORE Independence whereupon the independent governments failed to maintain adequate support it to this day.
The task force headed by Kere Moi in 1983 made many recommendations that were ignored or acted upon in an unprofessional and ineffective manner ensuring failure.
Attempts to develop National Customary Land Registration Legislation were mishandled and ended in failure.
The pioneering East Sepik Land Registration legislation was left to wither and die because of total neglect by successive national governments in spite of recommendations to use the East Sepik initiative as a pilot project in World Bank "Land Mobilization Programmme", part of the Bank's Structural Adjustment Programme. (The term "Land Mobilization Programme" was coined by the author in relation to customary land mobilization in the East Sepik Province but adopted by the Bank mainly for alienated land).
National legislations requiring use of the Land Groups Incorporation Act (Forestry in 1991 and Oil and Gas Act in 1998) failed to trigger any allocation of resources to manage the Land Groups Incorporation Act rendering it almost ineffective and even dangerous.
Consistent under funding of the Justice Department Land Court Secretariat rendering ineffective the implementation of the Land Disputes Settlement Act and unnecessarily triggering at great expense to the State and Developers the exercise of the Land Title Commission involvement in landownership issues in resource projects. The Land Titles Commission Act was meant to become redundant once the Land Dispute Settlement Act came into being. (CILM p124)
Consistent lack of will to empower citizens voting rights by persisting with a voting system that allows many members to gain seats in parliament in spite of not being voted for by 95% of the constituents.

§ Political commentators have repeatedly pointed out the connection between the "first past the post" voting system and electoral fraud and violence. (Dr Ray Anere, Prof John Nonggorr in numerous newspaper articles). The flip side to this system is that some Parliamentary Members are armed to the teeth while others have armed bodyguards! To protect themselves from the un-represented 95%?

§ The national and Supreme Courts have been tied up for the last three years with appeals relating to electoral mismanagement. The overworked justice system is spending huge sums of taxpayers' money on politicians while the ordinary citizens cases are pending.

§ A recent murder and arson followed by a weekend shootout with masses of ammunition and high powered automatic weapons in a selected battleground near a quarry just outside Mendi was related to the election results for the Mendi electorate of three years ago in 1997.

§ Meanwhile it is very difficult for honest village people to get guns and ammunition for hunting for their own food.

The so-called Provincial Government "Reforms" were a push mainly to do away with provincial politicians who represented provincially based political and in some cases economic rivals to the Moresby based national politicians. Now we have a host of absentee governors some of whom are even afraid to go to their provincial capital.
Consistent actions by politicians tirelessly working to gain access to state owned or state controlled resources for personal gain. This includes access to alienated land by misuse of ministerial powers.
This is based on cronyism which is the basis of appointments to top jobs in government related bodies.
Land group members whose ancestors were paid in trade goods for large parcels of land now in provincial and national capitals see politicians and their cronies becoming millionaires by accessing extremely valuable parcels of land in towns while the former landowners sit on the roadsides chewing buai. Small wonder that land groups all round the country are demanding further payments for their former land alienated by their grandfathers.
These same former landowners see large numbers of aggressive and hardworking people from distant ethnic groups consolidating their hold on land and business in the capitals while they are disadvantaged in their own land. (This is what happened in the Solomons!)
Misuse of ministerial powers in relation to the exploitation of forest resources has been a feature of "development" since independence. The landowners have received dregs with no sustainable development while their patrimony has been harvested to benefit others both local, including the State, and overseas, leaving behind an unsustainable future and degraded environment.
Interference by politicians in the mining and petroleum industries has been less obvious until very recently because of the power, transparency and self-checking nature of Joint Ventures, aided by implications of various Foreign Corrupt Practices Acts, by multi-national industry participants. The failure of government in these industries includes:

§ Fiduciary neglect: Monumental dereliction of duty in relation to the management of landowner involvement including transparent exercise of fiduciary responsibility towards agreed landowner cash benefits and delivery of agreed socio-economic infrastructure projects and associated government services in the project areas.
§ The Dutch Disease: The squandering by government of revenue from these industries (K5 billion in the last ten years from the oil industry alone) while the socio-economic fabric of the country falls into disrepair. (The Dutch Disease results from the failure of government to utilize the income from non-renewable resources to develop sustainable renewable activities).
§ Oil for Parliamentary Seats and Guns: The relatively recent development where millions of kina of government revenue derived from resource development have been corruptly siphoned off at the provincial level by politicians and their cronies and used to fund political campaigns and buy arms to establish petty warlords. (e.g. Nipa, Tari, Mendi. Warlords have been in operation in the Enga Province for some time. The Porgera Gold Mine has to employ armed security and police escorts for their supplies that have to come in convoys.)

State control of resources. The state has demonstrated a very consistent and focused drive to appropriate natural resources for exploitation in the name of funding national development.
The Mining Act and the Oil and Gas Act declare that mineral resources under the land belong to the state following the precedent of received law from Queensland.
The Forestry Act forces land groups to give up rights to their forest in order to seek development based on their customary patrimony. The operation of the Forestry Act to date would provide strong grounds to strike out the Forestry Act in its present form as being unconstitutional on the grounds of unjust deprivation of property. (S.54)
The Land Act (S. 132) prohibits land groups from dealing in land and related matters while such powers are expressly granted by the Land Groups Incorporation Act (S.13).
In pre-colonial times customary leaders (ol bigman) were benevolent dictators serving small groups. Sociologists suggest that semi-nomadic groups tend to split when they reach more than 30 while settled agricultural groups tend to split when they reach over 400. This has a lot to do with the way we manage face-to-face dealings.
These leaders had the responsibility for the welfare of each and everyone in their group. Today these leaders tend to convert their status into access to wealth of their group (and of any other group available). There are checks and balances within the group so there is today a tremendous effort on behalf of leaders to appropriate to themselves anything that belongs to the bigger groups beyond the confines of their own land group. This occurs in landowner companies where shareholders belong to several land groups. It happens in the public sector where property and income belonging to the taxpayers is looted from government, government companies, investment funds, even the Public Trustee.
More and more, we see leaders try to distort or bypass custom. A classic example is demonstrated in the case of the Land Titles Commission hearing on appeal on the ownership of the Gobe oilfield lands. Leaders attempted to subsume several land groups under one political leadership asserting that the individual groups' land ownership was one under the political level. This attempt to distort custom was rectified on appeal.

In spite of everything to the contrary in the last 25 years, we still have in Papua New Guinea today a situation where land is communally owned by customary groups. Labour is privately owned. All development in Papua New Guinea, no matter how it is ultimately defined, will depend on reconciliation of these two regimes and creatively finding ways to realize their potential for the benefit of all.

state legitimacy & respect for customs. All roads lead back to land groups

Continue to Part 2 - ARTICLE

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

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