Comments

I thank Colin Filer for his blog-post and discussion paper. I think it is useful to examine the many issues that Colin Filer mentions by broadening the discussion and focusing on the legal basis of the statutory requirement for petroleum project social mapping and landowner identification studies. A very distant progenitor and source of the inspiration behind the PNG Land Disputes Settlement Act 1975 is the Indian Evidence Act 1857 (IEA), Sections 13 and 48. The IEA abruptly broke with the English common law tradition and by mandating that the customary law relevant and applicable to a court hearing is to be found in the testimony of the disputing parties and not, as under English common law, by judicial reference to recognised law books and their references to ‘time immemorial’. The IEA had a rippling effect across many of the British colonial jurisdictions that were faced with the problem of integrating or conjoining with established, often chiefly, native courts in both east and west Africa. In PNG, Village Courts, Urban-Village Courts and Local/District Land Courts are empowered to hear cases about land, arbitrate and make decisions on the basis of the testimony of the disputing parties as to the facts ‘on the ground’ and with reference to the customs of the disputants. The leading question is how should we understand the jurisprudence of these courts in relation to the issue of custom. I have benefited from many conversations with Village Court Magistrates. My interest centred not on the details of individual cases (which would have been improper) but on how did a Magistrate decide a case when there was no relevant or applicable statute law and when the judicial doctrine of precedent was either weak or absent. At first I found the answers I was given rather vague but a constant theme emerged that the judicial solutions were always to be found entirely within the facts and the arguments made by the contending parties. My understanding of what was going on in the Magistrates’ minds was greatly assisted by reading the work of the anthropologist Lloyd Fallers (Law Without Precedent: Legal Ideas in Action ...) and here (https://scholarship.law.duke.edu/lcp/vol27/iss4/5/). Unremarked upon by Fallers is that customary law courts typically decide cases by invoking decision points that are equal to or related to those found in the English law of equity, the law of fairness and natural justice. For example, what is at play in the case described above by Fallers is the equitable doctrine of laches. In other words these ‘lower’ courts decide cases on the basis of evidence given by the parties and measured by the standards of natural justice and fairness as understood by the parties. Equitable maxims or doctrines are indeed understood by the parties even if they are not always well-liked by by those who find the judgments unfavourable to their interests. The issue of fixing land boundaries is not often of interest in land dispute cases. Rather what is at issue is the balance of competing interests and the possibility that some disputants may have no legal land occupation-based landownership interest. PNG legislation determines that occupation of land for 12 years establishes a customary ownership right. Different jurisdictions and legal systems use different measures in relation to land (Roman law 2 or 3 years, Islamic law (Maliki school) 25 years). This legal view of customary landownership has a long PNG case law history and played a large part in the rationalisation of some land law legislation at PNG independence. Justice Amet’s (as he then was) Hides Gas Case 1992 decision provides an excellent summary as to how a PNG court may interpret ‘occupation’ in the context of a customary landownership dispute. Once the legislative and policy background and relevant judicial practice is understood the task of social mapping and landowner identification studies is made conceptually simple. These studies need to record populations, settlements, habitations, cultivation and land usage, and all the ancillary details that add to the facts of occupation. I would expect that any well-designed social mapping and landowner identification study exercise could achieve a very high level of success, if appropriately funded and resourced. The social mapping and landowner identification studies would identify persons, ILGs and self-identfying groups who have not yet achieved incorporation by registration but who, nevertheless have ‘occupant’ status. Payments to identified by Ministerial gazetting beneficiary landowners are made from trust funds. The money in these funds is strictly the property of beneficiary landowners. If the fund trustees were to pay money to persons other than properly identified landowners they would face heavy sanctions. The introduction of ILGs does solve the legal problem that trust fund payments must be made to somebody, some entity, that qualifies as a customary landowner. Before registration as an ILG a customary landowning group is the legal equivalent of a ‘friendly society’. There is no reason for a customary landowning group ‘friendly society’ to register as an ILG unless it wishes to enter into a relationship with the outside world. In this case the outside world involves the collective group ownership of trust-held funds and the legal basis of the payment of these funds to the group as a collectivity. There is no doubt in my mind that the process of paying resource project benefits to customary landowners introduces social change which may, for some, be unwanted. It may be helpful to describe an ILG as a PNG Province in miniature. Like a Province an ILG must take control of and direct its own future. Its ability to achieve coordination, and to implement its own regulations and move towards a desired future is something that GoPNG, located in the capital, can only support and encourage. There are indications that some landowner groups are achieving new and innovative levels of cooperation. The legal system of PNG is difficult to categorise. Some describe it as ‘legal pluralism’ and refer to the Village Courts as ‘hybrid courts’. I prefer to describe PNG as a ‘legal multiplex state’. I would suggest that central government (GoPNG) and provincial governments improve the resourcing of Village Courts in the petroleum project areas. There is a continuing need for education for all to both deepen the understanding of ‘natural justice’ within the framework of the PNG Constitution and to recognise the development need, as civil and personal law issues arise, following payment of the benefits to ILGs. Vailala

This is a nice article to read.

We had some enormous challenges with international volunteers coming after Hurricane Maria in the Caribbean island of Dominica. However, not due to a lack of qualification or competencies, in fact the unqualified, inexperienced, mostly young women, volunteers coming in to physically build earthquake and hurricane resistant schools with All Hands and Hearts who worked with our organisation Lifelinedominica.org as Local Partners worked brilliantly and not only donated two primary schools and three Pre Schools but challenged gender stereotypes significantly. This was a far more effective impact that the UN workers from Pakistan who had no clue about the Caribbean, our history and our particular GBV issues.

Thanks Paul for the great read - it is a critical issue for development and the achievement of the SDGs. On the one hand the private sector has many resources and skills useful for accelerating development; on the other it also has the resources and skills to capture most of the shared value. One way of protecting against this is for donors to avoid upfront funding of private firms and to enter into partnerships which provide payment for specific results. I found this CGD paper on the issue useful: https://www.cgdev.org/publication/guarantees-subsidies-or-paying-success-choosing-right-instrument-catalyze-private

Thanks Dek for the sharing the experience, the complication of getting the passport done is real. It’s worth the info. I can believe I am facing it right now. I am in Goroka and its worse. We have agents who can assist but the service fee is around K1000.00 to get both Birth Certificate and the passport done. I will be travelling down to Australia for a Conservation Science Student Conference in July, 2019. Yes the challenge of getting passport done with the new million kina NID project as a requirement is leaving many of us ordinary Papua New Guinea to struggle. Especially for those who want to travel but you dont have a birth certificate, NID card and the Passport and if you are not in Port Moresby, it’s very complicated. Only in PNG where nepotism is practice or bribery, the chance of fast tracking is okay. Corruption is at rife in PNG and its crippling the development progress in PNG. Regarding the PNG NID project, I still don’t seem to understand its simple meaning and purpose. It’s a waste of PNG taxpayer money. What are the benefits it offers to the development of this country? The Government must be real with its development priorities and not wasting too much money on a million year project. By the time all members are registered, they will all lose their identity.

can a Taiwanese throw a water melon 3 rows for 10 hours a day? give me a Tongan every time.

if a community is sending workers as a nepotism type selection structure then it can only be good because if any 1 of those workers stuffs up overseas then the whole community who depend on their good behavior and work ethic to gain support and income, then woe betide that person that besmirches that community. the biggest issue when these guys go over sea's is drink, and all contracts forbid alcohol consumption. it is best that those around these people that wish to contravene their contract be surrounded by fellow community members who will council and redirect their misconduct. this is best for Vanuatu and the host country. In the recent 2 months Jan Feb in Australia the rate of return to home country has increased dramatically especially in second year return persons. complacency and cultural differences seem to take over from the real reason these guys are in Australia. however if they are from the same community then peer group pressure will keep them focused on why they are in another country. the employers want consistent, dependable, workers unlike the backpackers who are totally random who don't turn up when a truck must be filled.

But clearly some people are reporting, including to independent bodies like ALAC (TIPNG)..so what motivates them would be interesting and what might have caused them to hesitate...

I am trying to understand the policy implications of categorizing kids as normal or inferior goods. What of children are inferior goods, how does it impact the policy making in developed countries?

Hi Elizabeth, Am very encouraged to read your acceptance speech. Highlights the power of community led action yet supported, facilitated and accompanied.

The article explains the period of political and social development well. The challenges Bougainville people will inevitably face as they head towards their increased autonomy vs independence referendum, will be monumental and require even greater levels of skill, knowledge and tenacity to overcome.

Thanks Terence for this nice piece of personal reflection on PNG As a PNGan I see your reflection as a useful critique from an outsider view of development trends over pre and post- PNG independence. I agree with your reflection on limited development impact with external support to PNG. In fact, PNG is a nation of diversity and will take generations for people to appreciate modernity. In the last 43 years of independence, we have witnessed what you have correctly stated. On the other end, it could be a failure by the donors that any form of support are not handle with care- meaning donors themselves anticipated that such and such will improve and modernise PNG soci-economic and political status without understanding the colonialism. That said, many outsiders like your 1977 British Aid Worker friend could view PNG in general as “just leave it and go” place in the world. We take the blame but external supporters should also be responsible. One very fact matter is; PNG got its independence too soon when modern civilisation had never reached our mindset, but when we were still in the Stone Age. Other colonial countries experienced developments before gaining independence. After the independence, citizens adopt easily into modernity and PNG did not go through that feat. PNG got independence when there is no educated population, no countrywide governance system, no infrastructure, no and no…the list goes on. However, PNG stood the test of times for the last 43 years as a vibrant democracy and development gradually taking shape. We the next generation of PNGans will develop this great Pacific country and this is the creed of our fathers in the woods and the dreams of our mothers in labour- we are now standing –the pride of our ancestors. To “stuff it up” is not a creation of our own but it is a test of time in PNG pre- and post-independence history.