Traditionally all land was owned by communal groups, which are usually referred to as clans. Knowledge of the boundaries of clan land were, and still are, passed orally from one generation to the next. There have been frequent disputes, some leading to tribal fighting, over land ownership, particularly in the densely settled parts of the highlands. Prior to colonization in 1884, some Europeans took or bought land for trading stations, plantations and missions. In German New Guinea (1884-1914) the New Guinea Company (1884-98) and the Imperial German government (1898-1914) alienated much of the most fertile land in some regions. In 1920 the Australians, who had taken over the German colony, set up an Expropriation Board which sold this land to Australians. In theory the local landowners could claim their land but in practice this right was seldom exercised. In British New Guinea (1884-1906), the Australian Territory of Papua (1907-45) and the Australian colonial Administrations to 1975, Europeans could acquire land only through the Administration. This policy was to protect the rights of the local landowners. Relatively little land was alienated in the Territory of Papua, as the Australian Administration in the main followed policies set down in the period of British administration.
Today over 95 percent of land remains under customary clan ownership. Arrangements for customary land use vary greatly and are mostly undocumented. Of the land not under clan ownership, about 40 percent is freehold and the remainder held under lease from the government. Where clan land is required for commercial purposes the legitimate owners need to be identified. Internal migration and the vagueness of many traditional boundaries make this very difficult. There is no general provision for the registration of customary land. Some provinces are developing processes for the formal registration of land titles. A further major problem is that the national government has adopted, from British and British-derived law, the principle that the state owns the mineral resources beneath the surface of the land. Most landowners are of the view that these resources should belong to them and dispute state ownership.
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Around 97% of land in PNG is occupied and used under customary tenure. Custom is here defined as the long-established practices of the people of PNG. The principles of land tenure that arise from custom are not written down, but are maintained through time by human memory and everyday practice. Although custom is recognised legally in the laws and constitution of PNG, land used and occupied under customary tenure remains outside any formal state system of land administration. Until recently, this land could only be brought within a state system of land administration through a process called alienation. In this process, land was purchased by the state from its customary owners and leased to other users. When land was alienated, the customary owners legally lost all further interest in the land. This permanent loss of interest in land was always resisted by customary owners in PNG and today it is almost impossible to find landowning groups that will agree to land being alienated.
The first laws governing land registration were introduced to PNG in 1889. They provided for the registration of titles in ‘alienated lands’, or land that had been acquired by colonial administrations from customary owners. Until World War II, registered titles were only available to those who occupied alienated land.
After World War II, attempts were made to provide for registration of customary land. The Native Land Registration Ordinance was passed and a Native Land Commission was established to administer it. Around 1960 a Land Titles Commission was set up to hear claims and make decisions about ownership of customary land. In 1972 the Commission of Inquiry into Land Matters, with an all-PNG membership, was set up by the PNG Government to make recommendations on suitable land policies and laws for an independent PNG. The Commission’s recommendations for customary land registration were never fully adopted but some legislation based on the inquiry was passed, including the Land Groups Incorporation Act and Land Disputes Settlement Act.
During the 1990s, under the influence of policies that argued that economic development depends on land registration, the World Bank attempted to persuade PNG to accept a Land Mobilisation Project that included the drafting of customary land registration laws. This project was to be trialled in East Sepik and East New Britain provinces. The laws were drafted but the trials were never carried out. In 2001, rumours began circulating that the World Bank was trying to take possession of customary land. This led to public protests and riots in which four people were shot by police.
In the absence of a suitable law for the registration of interests in customary land, the state has moved towards the option of temporary alienation. Under Section 11 of the Land Act 1962, the state can lease customary land from the recognised customary owners and then lease the land back to them as a legally incorporated body, or to another individual or body, designated by the owners. At the end of the lease, the land reverts to customary tenure unless a further lease is negotiated.
The largest social groups, sometimes known as ‘tribes’ or ‘language groups’, occupy large areas that can be viewed as territorial domains. The rights to the territorial land may be held by the group as a whole, or by parts of the group, and are protected against infringements by agreements with neighbouring territorial groups, and if necessary by force. The size of territorial domains may vary from a few hectares to many square kilometres, and the groups that occupy them may number from a few hundred to thousands of people. The rights to occupy a territorial domain may be determined by kinship or by historical circumstance. Large landowning groups are often held together by the mutual advantages of shared labour and defence, as well as by constant references to kinship, tradition, history, culture and language.
Within a territory, smaller landowning groups that make up the territorial group are composed of people who say they are descended from a common ancestor. For this reason these groups are often known as ‘descent’ groups and in PNG they are often loosely called ‘clans’. However, what determines clan membership can vary widely across PNG and the uncritical use of the term ‘clan’ can create considerable confusion and misunderstanding. Customary landowning groups are based on a dominant ethos of kinship in the broadest sense of that term, but legitimate membership of a landowning group is rarely determined only by biological descent.
The rights of landowning groups to the land they occupy are established through agreed-upon histories that describe how they came into being and how they came to occupy the land. In the case of disputes, it is often these histories that are disputed, rather than the boundaries of the land concerned. The particular historical events that endorse rights to occupy land are remembered by repeated storytelling. Particular individuals, usually older men, hold this knowledge and are relied upon to argue the historical precedents and principles, should disputes arise.
Landowning groups are commonly made up of a number of related extended families. In some places, the families may be the descendants of a number of ancestral brothers, the sons of the original founding ancestor. In other places the families may trace their descent through female ancestors. In yet other places, membership rules allow affiliation to be traced through descent from both male and female ancestors, such that the line of descent that an individual traces may jump back and forth between ancestral males and ancestral females. Intelligent, forceful men can argue their rights as landowners by either knowing these histories better than other men, or by being more skilled than others at manipulating the histories and presenting them more convincingly in public.
Importantly, some members of the landowning group will be individuals whose ancestors were incorporated into the group, by adoption for example, at some time in the past, perhaps hundreds of years ago. They will not be able trace a biological descent from the founding ancestor. Enough cases of non-descent incorporation into so-called ‘descent’ groups exist in PNG to argue that ‘descent’ group is an inappropriate term for a landholding group, even if the central ideology of most landowning groups is one of descent from a common ancestor. Adoption into a landholding group and change of group membership is a typical feature of PNG land tenure systems. The ability to transfer individuals serves to continually adjust the numbers of people to the amount of land available. It also ensures the survival of individuals from groups that have gone into decline because of the uncertainties of reproduction, mortality and warfare. However, adoption and change of membership of landowning groups is frequently poorly understood or not recognised at all by non-villagers who simplify rights to descent from a single male ancestor.
The means of determining rights to land within landowning groups vary from place to place and from group to group. Rights to land are determined by very local histories that are recorded only in the memories of the living. Within a single village, hundreds of individual pieces of land have particular histories. It is very difficult to predict the circumstances that will have led to any particular family owning any particular piece of land. Previous attempts to adjudicate land disputes in PNG have been forced to rely heavily on the merits of each particular case as argued by the disputants and local experts, and rarely on generalised principles of rightholding. An outsider wishing to determine the rights to a piece of land must understand the particular circumstances related to it. This can be a time consuming and tedious business, especially as some informants can be senile, confused and forgetful and some will present a case that favours their family’s interests over those of other families. However, if membership of the landholding group is not properly investigated, great injustices can occur and major disputes can be generated.
All members of the landowning group are expected to meet certain social and economic obligations to other members. Through the exercise of these obligations and by daily social interaction, the rights to use land are maintained and strengthened. Group members who have been absent from the village for some time and who are presently not occupying or using land also often try to meet these obligations. They do so to ensure that, if need be, they or their children can return and exercise their rights to land in the future. Migrant parents are especially careful to show their children to their home-based siblings and cousins and to tell their children the locations and names of the pieces of land to which they have a legitimate right of use.
The land and its use
The landholdings of a particular landowning group may not be continuous, but may comprise a number of pieces of land scattered within a larger territory. The land claimed by families within the group’s land may comprise a large number of very small areas of land. These individual pieces of land may be as small as 150 m2. While land parcels may be used by an individual family, the rights to use them will probably not reside in one person, but in a number of close relatives, such as the brothers or cousins of the user. The rights held by different people in the same piece of land vary in nature and in degrees of importance. The use of the land for cultivation or another use may be decided from time to time by consultation within the family.
It is not necessary to be a customary rightholder to a piece of land to use it temporarily. A great deal of land is cultivated by a non-rightholder, with the permission of, or at the request of, the customary rightholder. When a person who does not have rights to a piece of land uses it without paying a rent, the use is known as usufruct. For many reasons, including shared labour arrangements or to ensure the maintenance of marriage, exchange and social relationships, the rightholders to a piece of land will invite non-rightholders to cultivate it. This is also how people who cannot establish rights to land within a group, such as in-marrying widows or recent migrants, can be given land on which to grow food and build houses during their lifetimes.
Usufructuary arrangements are usually limited to growing annual crops. People invited to use land to which they do not have rights are commonly prevented from planting trees, particularly export cash crop species like coffee or cocoa, but also food-producing trees such as breadfruit, ton, sago and coconut. Tree planting (and the burial of the dead) is usually interpreted as a public affirmation of rightholding. Even though much land is cultivated under usufructuary arrangements, it can be difficult for women and unmarried men to gain access to land on which to plant tree crops or to develop cash-earning business enterprises.
Change in customary tenure
Customary land tenure systems change over time. If, for example, population increase causes people to feel anxious about whether enough land will be available for their children or grandchildren, or if the land suddenly acquires a monetary value, as in the case of a logging or mining project, customary tenure systems may change quickly. Changes may include an insistence that group membership, and hence rights to use the group’s land, is restricted to only male descendants of a putative ancestor; the exclusion from the landowning group of the descendants of people who were adopted into the landowning group; or the ejection of people from land that they have used under usufruct arrangements for many years.
Some commentators on economic development in PNG assert that national economic development will be seriously constrained unless land is registered so that individuals can obtain legal title to land. These people argue that the economy will not grow until a market in land has been created. They contend that this will allow the most innovative and energetic individuals to accumulate land and so achieve economies of scale in farming, and enable landowners to raise capital by borrowing against their land as security. Whether or not these arguments have merit, the technical difficulties of registering individual titles in PNG should not be underestimated. The possibility that large numbers of people could lose their rights to land they are presently using should also be borne in mind. The present state land registration system struggles to administer the 3% of PNG’s land that is alienated. A registry of customary land would have to be able to deal with thousands of changes of ownership annually, under circumstances where the customary owners will not be able to afford to travel to an administrative centre to register the changes. If land changes hands, but the changes of ownership are not registered, the disjuncture between the situation on the land and the records in the registry will soon grow to proportions that would render the system unworkable. The tasks of surveying the land, issuing titles and maintaining a land register, and of devising a new system of tenure that does not result in many people being disinherited, is presently beyond the competency of the PNG state.
Nevertheless, there is an urgent need, in some places, to survey the boundaries of land at landowner group level. There are circumstances in PNG where customary tenure systems are struggling to cope with rapid social or demographic changes occurring in the landholding group, or where urban development or other non-customary uses have spread onto customary land. There is a need to establish legally recognised surveys at a lower level of accuracy than is presently required by law. Legislation that defines membership of landowning groups and that allows land to be used by non-customary owners while the customary owners maintain an ongoing interest needs to be further developed. There is also an urgent need to teach more Papua New Guineans how to undertake the onerous and often tedious work required to properly establish the membership of customary landholding groups and the complex multiple rights that can be held by a number of individuals or groups in the same pieces of land.