In September 2017, Papua New Guinea’s Supreme Court rejected an appeal by PNG’s biggest logging company, Rimbunan Hijau (RH), against an earlier decision of the National Court to award damages to the representatives of a landowning clan who claimed that the company had failed to identify them as the true landowners of an access road and log pond in the Central Province. Two months later, a post to the PNG Mine Watch blog quoted two paragraphs from the Supreme Court judgment in which this was said to be but one example of ‘a sad story that is repeated throughout the country over a long period of time from the colonial administration in the name of opening up wild frontiers for various so-called developments and projects’. The nub of the judicial argument was that the government and developers had persistently failed in their duty to establish the identity of the true landowners, organise them into incorporated land groups (ILGs), and then make agreements with these legal entities that would constitute evidence of free, prior and informed consent, and hence grant the developers a social licence to operate.
RH might have wondered how this argument applied to an agreement they had made with the wrong landowners back in 1988, four years before the passage of a new Forestry Act that required a process of land group incorporation to be undertaken by officials of the National Forest Service prior to the grant of a new logging concession. But what excited the bloggers was the thought that the oil and gas industry was now tarred with the same judicial brush as the logging industry. And what excited them even more was the cross-reference that one of the three judges, Justice Ambeng Kandakasi, made to a couple of his own previous judgments in the National Court, in which he said he had ‘correctly’ described the delinquent government officials and company executives as ‘fraudsters and thieves’.
The first of these judgments related to a case in which a local landowner accused the government and the developer of trying to negotiate a benefit-sharing agreement for the prospective P’nyang gas field in Western Province without having undertaken the ‘full-scale social mapping and landowner identification study’ required by the Oil and Gas Act. The second related to a rather different case, in which one landowner from Hela Province charged another local landowner and a group of government officials with failing to abide by an order for the parties to undergo a process of mediation to resolve an argument about the status of two ILGs that had been incorporated in order to be compensated for the government’s compulsory acquisition of their customary land. Although this second case had no obvious connection with any form of large-scale resource development, this was the case that led Justice Kandakasi to observe that ‘[t]he State and a developer should play a more proactive role in the mediation process and provide the kind of support it needs to properly organise the landowners into ILGs … [to] help eliminate fraudsters and thieves from gaining at the expenses [sic] of the real and genuine landowners’.
When the PNG Mine Watch blog post was re-posted to the listserv of the Association for Social Anthropology in Oceania, the judge himself was charged with misrepresenting the nature of customary land tenure and traditional social organisation. Peter Dwyer, co-author of a recently published book about the way that landowners in Western Province have reacted to the prospect of a gas project on their land, found a section of the P’nyang judgment in which the judge proclaimed the existence of a nationwide form of customary tenure that appeared to be based on his own understanding of the customs of his own people in Enga Province. Jean Zorn, who once taught in the Law Faculty at the University of PNG, thought that he might have been proclaiming the existence of a Melanesian version of European feudalism that he had picked up from outdated textbooks on the British common law. And Bryant Allen, from our own Department of Pacific Affairs, observed that this was not the only Engan who had failed to comprehend the traditional social organisation of the Huli people, who account for the majority of the customary owners of the land around PNG’s first LNG project.
Bryant also made reference to a commentary on the P’nyang judgment by Sam Koim and Stephen Howes, published in December 2016. They construed the judgment as one moment in an ongoing contest between two processes that had been used to determine the identity of the customary owners of land in petroleum development licence areas. On one hand there was a legal process of mediation or ‘alternative dispute resolution’ led by Justice Kandakasi himself. On the other hand there was a bureaucratic process of ‘clan vetting’ organised by officials in the Department of Petroleum and Energy. The other Engans whom Bryant mentions were in fact consultants hired by these officials to undertake this second form of landowner identification.
The latest conversations on this topic reveal that this has not just been a contest between legal and bureaucratic methods of landowner identification; it also represents a disjunction between different forms of knowledge, and even different ideologies. Furthermore, this failure of communication started before the passage of the Oil and Gas Act in 1998, and long before Justice Kandakasi initiated his own brand of judicial activism.
The relevant sections of the Oil and Gas Act clearly make project proponents responsible for the conduct of ‘social mapping and landowner identification studies’, and these studies are then lumped together with court decisions and submissions from other interested parties, as things that the Minister for Petroleum and Energy must take into account when deciding, first, who should be invited to represent local landowners in the negotiation of a benefit-sharing agreement, and second, how landowner benefits should actually be distributed under the terms of such an agreement.
Those of us who were responsible for drafting these parts of the Oil and Gas Act expected that the studies would normally be undertaken by consultant anthropologists, much like the ‘connection reports’ commissioned by Aboriginal Land Councils under the terms of the Australian Native Title Act. And that is pretty much what happened – at least until government officials invented the practice of ‘clan vetting’ and began to hire their own consultants to check what they had already been told by the anthropologists hired by the developers.
As Sam and Stephen pointed out in their blog post, the apparent failure of the anthropologists to produce the information required by the Minister is partly due to the absence of a regulation that should have been added to the Oil and Gas Act, which would have spelt out the relationship between social mapping (which is essentially a documentation of local custom) and landowner identification (which may involve the identification of groups (such as ‘clans’) or the construction of genealogies that show the mutual relationships of individuals within a ‘landowning community’). The absence of such a regulation is certainly one part of the problem, but not by any means the whole of it.
Back in 1994, I was asked by one of the companies involved in the development of the Gobe oil field in Southern Highlands Province to produce a ‘land investigation report’ documenting all the historical evidence that might help the Land Titles Commission (LTC) to resolve the dispute that had arisen over the identity of the customary landowners of the licence area. This request appeared to have the support of what was then the Department of Mining and Petroleum. However, when I was half-way through the process of writing this report, I was informed that the judge hearing the case was not interested in the result, so it was never finished. In 2016, I had another reason to visit the LTC’s office in Port Moresby, where the Chief Commissioner told me that the Gobe dispute – still unresolved — had just been referred back to him by the Supreme Court. He then showed me several metres of shelving now occupied by all the documents that had been produced over the course of the 23 years in which this particular buck had been passed between the LTC, the National Court and the Supreme Court.
I doubt that my report would have made much difference to the resolution of this particular dispute. But the point of interest here is that PNG’s judges do not even recognise the possibility that anthropologists or other social scientists might produce evidence relevant to the resolution of disputes about the identity of the ‘true landowners’ of any piece of customary land. And this is where the practice of the courts in PNG diverges from the practice of the Native Title Tribunal in Australia. Whatever regulations might be added to PNG’s Oil and Gas Act, they are most unlikely to impose an obligation on the judiciary to pay any attention to accounts of customary land tenure or traditional social organisation that are written by anthropologists – especially foreign anthropologists hired by the developers of oil or gas projects who might themselves be counted as ‘fraudsters and thieves’.
Although these terms were not deployed in the P’nyang judgment, the two subsequent judgments contain an interesting implication. If government officials and company executives have indeed been conspiring to make agreements with ‘false landowners’, who would then presumably count as fraudsters and thieves in their own right, their interest in doing so can only be explained on the assumption that the ‘true landowners’ would not agree to the encroachment on their customary land. This is a distinctive strand in what I have previously called the ‘ideology of landownership’, and is in some ways more problematic than the judicial construction of an idealised model of traditional social organisation that fails to fit the kind of truth discovered by anthropologists. For if the validity of any process of landowner identification depends on the discovery of landowners who object to any form of large-scale resource development, it might make more sense for the courts to declare that all forms of large-scale resource development are unconstitutional, and hence remove the need for any such discoveries.
Will I craft a fine essay to say how vast numbers of Papua New Guineans (not just Engan judges) construct an imaginary PNG in the image of the own village, I wonder? Narokobi certainly did so (‘Take a typical village, let’s say Wautogig …’). I met a Roro person in a far flung corner of PNG who asked me if the work of anthropologists was not simply to talk with ‘tribal chiefs’ (Roro is well known for having four kinds of chiefs – let Roros say if it is 3 or 5)? The Eastern Highlands Governor, Julie Soso, came to ANU and in her speech said that all mainland PNGeans were patrilineal (like Goroka) and the islands region people were all matrilineal (sorry ye Trans-Fly dual-organised ‘mipela i gat tupela kanu’ people, ye Owen Stanley optional bilaterals, ye Hela multilaterals …).
Cue outrage …
I’d love to but what’s the point. I have done enough social mapping to learn that no matter how brilliantly you design the process, the only people who know you’ve nailed local custom and satisfied local aspiration are (some) locals – and since their leaders take over at Forum time, and have their own agendas, you cannot look to them to say so.
As Colin says, knowing what the social mapping says – if one is lucky enough to get that far – is one thing and translating it into Forum outcomes is another. His Gobe experience in 1994/2016 is particularly instructive as its timeline more or less mirrors mine at Hidden Valley 1995-2001 and as picked up again 2010-2012.
When the Hidden Valley mine gained its approvals in 2005, the mine landowners were a 100% known quantity. They had previously said their social systems were far too complicated for any outsider to understand, and that they would draw up their own genealogies so as to make it possible to figure out exactly who was who. They did this and were then good enough to share it with me. It took six years to finish this process, capturing how the communities wanted to represent themselves in a database. I printed out the results on big charts, we checked them, and I put the charts on map hangers in a safe map cabinet in the community relations office in 2001.
At their 2004-2005 Mining Forum, the Hidden Valley landowner executives negotiated an MOA for the general terms of who was entitled to what and for a ‘Consultative Forum’ to decide more precise on eligibility lists. A construction manager, fresh off the boat from another country, came to construct the mine and now asked who could be employed to do this. No-one – neither the leaders playing their own games, nor the new under-managers (they were under him, but they also under managed …), thought to mention the six years of toil the communities had put into creating a pretty decent representation of themselves. This important boss now worked with the four key executives (men only) to draw up a new list of who could be employed, starting with primary (‘Tier 1’) landowners. The result was a 39 page document produced in 2009, signed at the bottom of each page by the boss and the four executives. The preamble stated:
“I would now ask Nakuwi executives to review the list and sign off below to attest to the following points:
* The list is an accurate and complete record of all landowner Tier 1 … candidates to be considered for employment at Hidden Valley in accordance with the MOA.
* That the allocation of Tier 1 … status is accurate …
* That this list is now final and will not be subject to further modification, without written consent of the full Nakuwi Executive to add further Nominees as a result of Marriage or attainment of employment age.”
Brilliant!
Except that in 2012 I found that 50% of those whose status was given as Tier 1 landowners were nowhere to be found on the charts/database made up previously, and were unknown to the longest serving community relations staff. Worse, of the five landowner villages endorsed by the Department of Mining in the 1990s, two had almost no-one employed at all. The strong suspicion is that the executives solicited payments under the table from willing non-landowners to be put on the master list.
Pointing this out to the mining company made me few friends.
Colin says of Gobe:
“I doubt that my report would have made much difference to the resolution of this particular dispute. But the point of interest here is that PNG’s judges* do not even recognise the possibility that anthropologists or other social scientists might produce evidence relevant to the resolution of disputes about the identity of the ‘true landowners’ of any piece of customary land.”
* or anyone else, including all commentators.
This is repeated over and over at PNG mining and oil & gas projects. In addition to the fact that the elders who really hold the knowledge have a habit of growing old and dying before the project really get going, it is sad to say that, of my best social mapping collaborators over the years, at least three have died of preventable illnesses, one was lost at sea, and two were murdered between 2012 and 2017. In sum, perhaps we can say we have now proven the existence of the following Immutable Laws of Social Mapping:
(1) The regard that decision-makers have to social mapping exercises is in inverse proportion to the product of the time spent on them and their intrinsic accuracy.
(2) The probability of local social mapping experts coming to a sticky end before they can denounce the poor outcomes achieved by their leaders is in proportion to the degree of expertise they can bring to bear during social mapping exercises.
(3) Gresham’s Law always applies (quod vide).
I cannot see that the production of full-scale SMLI reports / a database of landowners for the PNG LNG project would have posed too much of a problem if both the developer and the state had committed to the process in the Feasibility Study period 2006-2009. It is true that the project’s footprint was larger than seen previously, but it is not larger that the combination of the 10,000 Porgerans, 17,000 Lihirians, 12,500 Hidden Valley area people, 17,000 Torres Strait Islanders, 8000 Kokoda Track people and others for whom I have been invited to do social mapping and, in Australia, for whom I have written Connection Reports over the years.
But the developer and the state were not committed to such a process, as Colin has explained, because the possibility of it is completely invisible to them.
In his 8 February blog post, Colin Filer discusses a contest between the courts and the bureaucracy over the identification of land ownership in PNG. After Social Mapping and Landowner Identification (SMLI) reports written by largely foreign and independent anthropologists are received, challenges are heard in the courts. But ultimately it is the Minister for Petroleum and Energy who makes a decision about who will represent the landowners and how the benefits will be distributed. Filer observes that the SMLI reports do not provide what the Minister, or the landowners want. The anonymous and Greek speaking Vailala, in his comment on Colin Filer’s blog post, thinks that the SMLI reports, or at least those covering PNG LNG and the Huli, may have “stoked the fires of the political struggle waged by many individuals and groups to gain access to petroleum landowner royalties benefits.”
Forty years ago in 1977 Mervyn Meggitt the first ethnographer in Enga, thought the Court of Native Affairs and the Land Titles Commission had brought back to life many dormant land disputes. Many of these disputes were probably insoluble given what Vailala calls the “contestation of historical memories”; in many cases the disputants had more less agreed not to fight over them anymore but to leave the land unused. But when a foreign institution like a land court appeared and had the power to enforce a zero-sum solution in which one side lost, both sides saw an opportunity to get a permanent outcome that would be to their advantage. This was and is Filer’s “disjunction between different forms of knowledge, and even different ideologies”. He correctly observes that this contest (what Vailala calls “the argon”), occurred well before the appearance of the Oil & Gas Act or the Mining Act.
Neither Filer nor (especially) Vailala, make a clear distinction between landowner identification undertaken for the purposes of paying the benefits of resource extraction and that undertaken to resolve land disputes. Although landowner identification commonly reignites dormant land disputes, mixing up the two processes is not helpful in understanding the nature of the problem or seeking possible solutions.
Land court magistrates in the 1970s and 1980s worked under the Land Disputes Settlement Act 1975 and faced similar situations to today’s PNG magistrates and judges. They were assisted by a District Land Disputes Committee and Land Mediators, who were knowledgeable local men empowered under the Act to do everything possible to settle a dispute through mediation. Today, lack of funding frequently means magistrates cannot visit the disputed land and mediators do not get paid and refuse to work. But they would still struggle to assess the veracity of the evidence offered to them by the disputants. Back in 1982, Rick Giddings, District Land Court Magistrate in Goroka observed that “disputing parties tend to push their own selfish ends, do not apply traditional principles, will not accept responsibility and are reluctant to accept court decisions” . . . “Many individuals and groups use disputes as a vehicle for their own social and political ends and are therefore not overly interested in having the dispute settled.” (Allen and Giddings 1982, 185). Giddings was aware that disputants tried to understand the principles on which the court was going to make its decision. If it was going to favour historical evidence about who originally occupied the land, oral histories and genealogies would be concocted by both sides to support their position. If it was going to favour present occupancy, both sides would make claims of ownership over gardens and houses and even women working a garden. He found, “many witnesses make untruthful statements before the Court”.
The immediate post-colonial land courts were trying to resolve disputes over land that that had little or no monetary value. Today’s courts are dealing with disputes that may result in one group receiving significantly large amounts of money in the form of mining or petroleum royalties while their adversaries receive nothing. The Land Disputes Settlement Act was not designed to deal with land that has suddenly become worth millions of kina to its owners. Nor was the Land Groups Incorporation Act designed to be used by resource companies to pay royalties. But very importantly, as Vailala observes, “money is both moveable and divisible”. In the Hides LNG licence area, a number of disputes over small areas of land, like quarry sites, were settled by the disputants agreeing to divide the money between them and to leave the land dispute unresolved. A highly relevant case not mentioned by Colin Filer or Vailala is Justice Amet’s decision over the land at Juni on which Oil Search’s gas-to-electricity plant is constructed. Amet flew in the face of Huli custom, and made a decision in favour of the present Huli occupants, over the former Duguba owners. After winning their case in the court, the Huli offered 50% of their winnings to their Duguba protagonists (Weiner 2002).
To return to the SMLI reports. Vailala is wrong to argue that the “Hela reports” promote the view that “all Hela landowners have a landownership interest in all Hela-owned land and much land owned by non-Hela”. The reports are not “Hela” reports. They are based on licence areas (Petroleum Retention Licences– PRLs and Petroleum Development Licences – PDLs) which are international 9km by 9km grid squares that go beyond the boundaries of Hela and beyond land occupied by Huli speakers. In the PNG LNG SMLI reports “major clans are identified as general landholding agencies, without then also specifying every individualised plot of land and how those holders or users relate to the primary landholding segment”(Goldman 2008, 19). Under the Act the government is not obligated to pay royalties to individuals and prefers to pay ILG representatives.
But at Kutubu the ILGs did not function as envisaged by the Act as business entities: they did not cooperate in the management of their resources, rarely reinvested their cash receipts in business ventures, did not regulate their membership lists or manage land disputes, did not have functional Dispute Settlement Authorities as required by the Act; and received no infrastructure support or training (Goldman 2005). The initial number of ILGs at Kutubu more than doubled as members dissatisfied at not receiving payments due to them, split existing ILGs and created new ones. At Hides, the Act’s requirement that an individual belong to only one clan meant ILGs were rejected by the Huli, who all belong to at least two clans and usually more than two. As I have argued elsewhere, it is not possible for any non-Huli, nor for most Huli, to know who is a member of any particular Huli clan, nor to know what is the status of their membership.
The solution to the problem of how to pay gas royalties to the Huli owners of the PNG LNG will have to be resolved by them. The circumstances must be created in which the Huli can devise a way to make the payments that satisfies the majority of the members of landowning clans. This situation will not be resolved by judges, ministers or public servants.
Allen, B. J. and R. J. Giddings 1982. Land disputes and violence in Enga: the ‘Komanda’ case. Enga: foundations for development. B. Carrad, D. A. M. Lea and K. K. Talyaga. Armidale, University of New England. Volume 3 of Enga Yaaka Lasemana: 179-197.
Goldman, L. 2005. Incorporating Huli: lessons from the Hides Licence Area. Customary Land Tenure and Registration in Australia and Papua New Guinea: Anthropological Perspectives. J. F. Weiner and K. Glaskin. Canberra, ANU Press: 97-115.
Goldman, L 2008. Full-scale Social mapping and Landowner Identification Study of PRL-11 – PNG LNG Gas project
Weiner, J. F. 2002. Adverse possession: some observations on the relation between land and land-based knowledge in Papua New Guinea. Transforming Land Conflict Symposium, http://www.usp.ac.fj/landmgmt/SYMPOSIUM
Both ‘Vailala’ and Bryant Allen address the relationship between the problems of landowner identification, landowner representation, and the distribution of landowner benefits. Both seem to think that the question of how to distribute the benefits derived from a large-scale resource project can be resolved by mediation or by custom without the need for an answer to the question of who counts as a landowner in the first place or how the people identified as landowners ought to be represented in the negotiation of a benefit-sharing agreement. The implication would seem to be that benefits can be distributed to everyone’s satisfaction while people continue to contest the question of entitlement through the Land Courts or the Land Titles Commission.
These matters were debated at great length by the members of the ‘Action Team’ that framed the relevant provisions of the Oil and Gas Act in 1998. The argument put forward by the operators of the Juni power station (then BP) was that the best way to make a cash payment to local landowners was to call a meeting of all those who thought they were entitled to receive a share and then hand over the money, in cash, to the ‘big men’ who emerged from the crowd. The crowd would then follow the leaders around until everyone had received a share of the money that was somehow accepted as a customary reflection of their relative degree of entitlement. This was the method of payment preferred by the former colonial officials (kiaps) who had been trained in the practice of ‘land investigation’ (to solve the problem of landowner identification) and the appointment of ‘clan agents’ (to solve the problem of landowner representation) during the late colonial period. Some of these men had since been recruited by mining and petroleum companies to deal with such issues. Those working in the petroleum sector had already begun to realize that the problems of identification and representation might have no practical solution in areas as large as the rectangles that constitute petroleum licence areas, let alone in areas occupied by Huli people who simply love to argue, inside or outside of the courts, about who owns what and who represents whom.
But how could such knowledge be inscribed in legislation? From a strictly logical point of view, the landowners in each licence area have to be identified before a decision can be made about how they should be organized for the purpose of negotiation with the government or the developers, and that question has to be resolved before a decision can be made about the distribution of landowner benefits. The Oil and Gas Act clearly reflects this logic. But how are landowners to be identified when it is not feasible to undertake the kind of land investigation that might determine who has what customary rights over every square metre of land in a licence area covering 81 square kilometres?
The Action Team did not think that ‘social mapping’ could provide an answer to this question. The primary aim of a social mapping study is to identify the customary principles and procedures that would be most appropriate to the resolution of all three problems (identification, representation and distribution) in each specific licence area, recognizing that such customs vary widely between different parts of PNG. The lawyers who actually drafted the legislation added the task of landowner identification because they thought that the primary aim of an SMLI report was to help the Minister decide who should be invited to represent the landowners at the ‘development forum’ where benefit-sharing agreements are negotiated.
The legislation reflects a general agreement that the developers should fund the production of SMLI reports on the basis of the ‘user pays principle’ that also applies to the production of environmental and social impact studies under the terms of the Environment Act. If the government were responsible for funding the studies, they would not be done properly or not be done at all. However, this does not mean that the developers (or their consultants) have been given the right or the responsibility to solve the problems; they only have an obligation to provide relevant information to the government.
The Action Team had to consider the extent to which the problems could be solved in the terms of the legislation itself. Some members of the team thought that all three problems could be partially solved by a requirement for landowners to be members of incorporated land groups (ILGs) whose executives would then become the negotiators of agreements and the primary recipients of the landowner benefits that they would then distribute to other groups members in accordance with ‘local custom’. But other members of the team (including the anthropologists) were already aware that ILG formation had created as many problems as it had solved around the Kutubu project, and was turning out be even more problematic in areas occupied by Huli landowners because of the peculiar nature of their customary social organization. That is why the Oil and Gas Act allows for alternative forms of landowner representation.
In 2006, officials in the Department of Petroleum and Energy decided that land group incorporation might not be the best solution after all, and proposed that landowner benefits should be distributed equally between all the individuals identified as genuine landowners. But since lists of individual landowners had not been provided in the SMLI reports for the prospective LNG project licence areas, this meant that another round of studies would have to be undertaken, and these would be very expensive and time-consuming because they would begin to approximate the kind of land investigation that had previously been ruled out. In this case, the developer was not prepared to pay for them to be undertaken and the government was not prepared to force their hand.
One might be tempted to suggest that the problems could have been solved if the government had already produced a regulation that required the identification of individual landowners in each SMLI report. But that would miss the point made by both of the commentators on my original post. The real problem lies with the institution of the development forum. As matters stand, this is an institution that only produces an agreement about the size and shape of the total package of benefits to be allocated to landowners; it does not produce an agreement about how the benefits should be divided between them. From this point of view, the belated intervention of the courts is a remedial measure that is unlikely to produce a lasting remedy. Nor is it realistic to expect existing legal institutions to produce a solution to the problem of distribution before a development forum is convened and a development licence is granted. They simply do not have the mandate or the capacity for this task. The only feasible solution is to expand the scope of the development forum itself or create a sort of parallel forum to deal with the distributional issue. Only then can the government make more sensible decisions (and regulations) about the type of information that needs to be provided in SMLI reports.
Thankyou Bryant for your comments. You may have misunderstood the issue of a Minister’s determination of landowner identity under the Oil & Gas Act (OGA). The Minister’s discretionary scope in this matter is in most respects tightly fettered. Especially so in regard to the identification of PDL entitled beneficiary landowners, but arguably less so in respect of representation of landowners for the purposes of a development forum (O&GA S 49 (b)).
Under OGA S 176 (2) PDL benefits (royalty and equity) are payable to an MRDC created trust. Under OGA S 3 (f) the beneficiaries of the trust are (unless otherwise agreed to by the State) incorporated land groups.
In this context the question of determining Huli clan membership becomes irrelevant. The relevant question is whether a Huli person is or is not a member of an ILG. This is quite easy to answer.
The issue of tracing land ownership back to a long-dead apical person and basing current ownership on genealogical ‘truth’ has long been considered by the PNG courts as implausible (on evidentiary grounds) and improper on grounds that to do so is inconsistent with the PNG Constitution and Organic Laws, etc. In 2008 the Law Reform Commission re-visited this issue and strongly affirmed that –
‘The recommendations presented above to amend Section 5(2) of the Land Groups Incorporated Act are intended to inject integrity and enable the incorporation of the actual and genuine customary land owning social unit (clans, sub-clans etc) firmly planted on actual customary land which such a group owns and taking full account of actual warm bodies who are living as human beings with sufficient genealogical grounding through the requirements that one must meet before obtaining a birth certificate under the Civil Registration Act.’ (Review of Incorporated Land Groups and Design of a System of Voluntary Customary Land Registration, Final Report 5 [2008] PGCLRC 1 (1 May 2008).
With regard to the issue of the Ministerial determination of entitled PDL beneficiaries the Minister must recognise those ILGs whose landownership has been determined in one way or another under the provisions of the Land Disputes Settlement Act and/or under the Land Titles Commission Act or other Court. These relevant Acts presume that ‘actual warm bodies’ who are occupying the land are the landowners.
However, the issues became very murky in Hides in the 1990s as the view was put about that a ‘genealogical footprint’ would get you a project benefit. Some of this murkiness is reflected in Goldman’s 2005 account which you refer to. Here we meet ‘Zone ILGs’, a concept which was strongly repudiated by the DPE, partly because it has no basis in PNG law or policy. A mutation of this concept can be found in the idea of ‘Umbrella Groups’. These concepts and Goldman’s metaphors had the effect of boosting high-level political contestation into the arena of the PDL landownership ‘agon’ in Hela Province. Anthropologists have an unfortunate tendency to decribe land tenure in terms of social organisation (land tenure reflects social organisation and social organisation reflects land tenure, see Thomas G Harding, Encyclopedia of Papua New Guinea, 1972 pp604-610). From a pragmatic legal point of view such ideological descriptions do not deliver up the ‘warm bodies’ who actually live on the land and give their testimonies to the Land Court.
Following an OGA based Minsterial determination of PDL beneficiary landowners based on SMLIS reports it remains open for any person or group to register a dispute as to customary landownership with a Land Court. Should such a dispute be registered with the Land Court (or LTC) any agreement between ILGs as to how the royalty and equity benefits accruing to PDL landowners should be shared amongst these parties is set aside until the dispute is resolved by one means or another. Broadly speaking the sharing of benefits follows from the adoption of PDL and/or Project reservoir exploitation unitisation rules which determine the quantum of benefits in relation to location. The Minister has some discretion to vary the sharing arrangements from that agreed to by the landowner ILGs.
The Minister, in making a PDL landownership determination, is more or less bound to follow the advice of the public servants who administer the OGA and where the exercise of Ministerial discretion is based on policy considerations to follow any relevant decisions of the NEC. Otherwise the Minister is generally bound to make decisions that are consonant with and cognizant of the laws of PNG, including the Land Disputes Settlement Act S 67.
67. PRESUMPTION AS TO VESTING OF INTERESTS.
(1) Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up a presumption that that interest is vested in the first-mentioned party.
(2) Where a presumption is set up under Subsection (1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.
The task of Social Mapping & Landowner Identification Studies is then quite simple, as Justice Kandakasi explained in the 2016 P’nyang Case.
It’s appropriate to conclude with the words of Mr Andy Hamaga, Chairman of the Hides Development Authority as reported recently by RNZ –
Mr Hamaga says deals were drawn up in 2009 with landowners for Umbrella Benefit Sharing Agreements and Licensed Area Benefit Sharing Agreements.
But he said the rightful landowners were not identified at that time and now fraudulent landowners have emerged.
“Unfortunately the previous government and the current government have failed to identify the landowners. So when that happened anybody from Hides and anybody from Hela and neighbouring provinces and districts, they claimed to be a landowner.”
For more information of the procedures, practice and jurisprudence of the Land Courts I suggest the following two case reports –
Application of Tomba Emba; Re an Order dated 5 November 1985 made by The Mendi District Land Court in its Appellate Jurisdiction [1985] PGNC 4; N549 (5 November 1985)
The State v Richard James Giddings, Magistrate of the District Land Court at Laiagam; Ex Parte Tiakon Koan for the Ambai Clan of Laiagam PNGLR 263 (4 June 1981)
For discussion of the ‘framing of the agon’ please see –
Mark Hickford “Framing and Reframing the Agōn: Contesting Narratives and Counter-Narratives on Māori Property Rights and Political Constitutionalism, 1840-1861” in Saliha Belmessous (ed) Native Claims: Indigenous Law against Empire, 1500-1920 (Oxford University Press, Oxford and New York, 2012.
Mark Hickford Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (Oxford University Press, Oxford and New York, 2011/2012)
I find the constant reiteration of the anthropological ideology of Huli land tenure somewhat disturbing for two reasons. Firstly, I read it as in some ways an abusive attack on the legal rights of the PDL landowners who occupy, live on and use their land as the source of their life and livelihood. Secondly, I find the usual expression of this anthropological ideology to be gender biased. It seems to ignore the rights of women who work the land and produce a usufruct from this land. The idea that women are not recognised as having a customary interest in land is unlikely to attract the support of a PNG Land Court or any other tribunal.
Vailala
The description of Gobe land ownership issues as given here is somewhat misleading. It’s a fact that a proportionate division of benefits was agreed by Gobe landowners many years ago and benefit payments have been made on this basis. That some landowners have continued to pursue landownership issues through the courts is a separate issue.
It’s a fact that in many jurisdictions around the world land-related disputes may sometimes be pursued by the protagonists for decades, even centuries. When courts are called on to make a decision there are winners and losers. Courtroom losers may well nurse a sense of grievance and look for legal avenues of challenge.
All of this was no doubt well-known to and understood by those who drafted the custom law and custom land law legislation in PNG. Not only were the many and baffling common law rules on property discarded but also the ‘framing of the agon’ was designed in such a way that primary consideration is given to issues that are grounded in the present rather than encouraging a contestation of historical memories. It’s also a fact that many ‘PNG social groups exercise flexibility in their kin reckonings, group incorporation and inclusion, and partibility of land use. Hence the legislative preference for the living reality of contemporary ground truth as the basis for landowner determinations
It’s a fact that a huge number of PNG groups have histories of migration and former land use that may date back for centuries. Different groups may have followed identical migration paths at widely separated points in time. Hence the legislative preference for contemporary ground truth.
A primary role and duty of the PNG Land Court is to push back onto the protagonists the task of finding a solution to their dispute. In the context of the LNG Project this is made quite easy because the money benefit is both moveable and divisible.
It’s worth noting that ADR was used to good effect in the Moran field dispute many years ago.
Once the money division question is settled a contest between groups over their exact land boundaries, rights and usages may continue, perhaps for ever.
One view is that the primary role of PNG courts when considering customary landownership matters is to not come to a decision. Conciliated and mediated settlements are greatly preferred over judicial decisions for many classes of disputes.
When assessing PNG petroleum project landownership issues it has to be taken into consideration that the anthropologists’ SMLIS reports have not only failed to provide the needed information but may have also produced a negative effect. The petroleum projects’ SMLIS reports produced from 1998 and ending with the P’nyang Case courtroom fiasco of 2016 promoted the view that all Hela landowners have a landownership interest in all Hela-owned land and much land owned by non-Hela (the ‘genealogical footprint’ principle). It seems reasonable to conclude that this view served to stoke the fires of the political struggle waged by many individuals and groups to gain access to petroleum project landowner royalty benefits. A most inappropriate ‘framing of the agon’.
Vailala