Only about 5% of land in Papua New Guinea belongs to the State, the remaining 95% of the land therefore belongs to customary landowners across the country. With the increasing number of tangible developments around PNG, the percentage of State owned land is set to increase meaning a lot more customary land owners will eventually be dispossessed. In an article in the Post Courier in August this year, Barney Orere explains this issue and the steps to be taken to protect one’s interest in customary land.
Bringing You Up to Speed
Papua New Guineans have a very strong connection to the land which is the foundation of our many customary traditions and beliefs, even to this day the land customarily owned provides means of daily survival for those living in rural areas. Without getting too entangled in legal jargon, but in order to protect this interest, those bringing our country towards Independence ensured that our right to our land be protected in the Constitution. Hence, Section 53 of the Constitution provides that any possession or interest in any property cannot be acquired unless it is by agreement or by compulsory acquisition. Compulsorily acquisition only occurs where the land is needed for public purpose or for a reason that is reasonably justifiable in a democratic society.
To enter into agreement whilst using customary land as collateral, it must be done so through an Incorporated Land Group (ILG) the process being made available for by the Incorporated Land Groups Amendment Act 2009 and the Land Registration Amendment Act 2009.
Why Register Customary Land Groups?
The further the State develops infrastructure, there would be a larger need for land to be acquired for public purposes. “The aim is to give prominence to landowners so they can participate in Vision 2050 by leasing their land and benefit from royalties. In that way land lying idle is put to gainful use.
Land may only be acquired by the State, in accordance Section 53, where there has been just compensation paid for the land. The significant difference is that where land is compulsorily acquired, just compensation need only to be paid once. Where it is entered into by agreement, it means there has been discussions between the State and an ILG, where the ILG has leased the land to State for a certain period. When the period comes an end, the lease may be extended, meaning another payment is to be made to the ILG. The benefit of this as well is the flexibility in dealing with the land; it not only needs to be leased to the land, but corporations as well.
How to Protect Your Land?
Orere explains that before the need for compulsory acquisition catches up to customary land owners, they must take the proactive step to register the clan and its ownership over the land. “First you must visit the Incorporated Land Group Division and after you’ve been issued a registration certificate over your customary land, the next stop is the Customary Land Registration Division – to facilitate your land title. The processes have been accommodated by the amendments to the law to help you, the customary landowner, to do this.”, Orere says. As a further measure of protection, customary land is owned by clans and cannot be sold by individuals. One must get consent from all members to engage in its registration and subsequent business dealings.
What Are the Risks Involved?
“Once your customary land is registered, you can use your title as collateral to enter into the gainful activity, either through business or with the State through leasing arrangement.”, Orere remarked. Therefore, the risk involved from entering into certain activity are the same as any other commercial transaction. A recent issue which became apparent was that agreements being entered into was not done voluntarily or with the consent of clan members which led declaring of all Special Agriculture Business Leases (SABL’s) illegal in March earlier this year. Further issues include the problems such as businesses taking advantage of the land an exploiting it for purposes unintended. In such cases, the Courts have been willing to intervene to nullify certain contracts and hold those responsible.
Should You Register Customary Land?
Simply put, yes. All customary landowners, whether apportionment large or small, should look to have their customarily owned land registered through an ILG because given the structure of our legal system, the State may acquire it despite objections. Director for the Customary Land Registration at the DLPP remarked “The momentum is slowly picking up to register customary land. People want to retain their bond with the land and through leasing arrangement benefit by making use of the land this way.”
The only way to ensure that an interest is kept in the land and the future generations of the clans can benefit from the land will be to register the land. Thus, although possession may be given up, royalties may continue to be acquired.