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The Extent of Consitutional Protection of Land Rights in Papua New Guinea [1998] MLJ 4; [1998-99] 26 MLJ 85 (1 January 1998)

The Extent of Constitutional Protection of Land Rights in Papua New Guinea

George M S Muroa^[*]

A. Introduction

At the time of the proclamation of Protectorates over Papua^[1] and New Guinea^[2] and their subsequent annexation, specific policies were adopted by the respective British and German administrations in the two territories to recognise and protect the property rights, in particular land rights, of the indigenous people. In Papua, pledges and assurances were expressly made by the colonial administration to protect indigenous persons and their land.^[3] In New Guinea, although no similar pledges and assurances were expressly made to the indigenous New Guineans, specific instructions were issued to the New Guinea Company and its successors to recognise and respect indigenous land rights and interests.^[4] The successive Australian administrations vigorously pursued these policies when Australia took over administration of the two Territories.^[5]

Despite such pledges and assurances and policies, there have been many instances of occupied lands being acquired as waste and vacant or ownerless land without proper investigations into the real status of the land and payment of compensation.^[6] These acquisitions have led to serious land shortages in many parts of the country. The situation has been exacerbated by the recent increase in population growth and the demand for more land for cash crops.

In order to deal with the land shortage problems associated with the alienation of lands and to prevent the perpetuation of the abuse of powers in relation to land rights, one of the measures instituted by the post-Independence government in the mid 1970s was to ensure that the property rights of Papua New Guineans were authoritatively protected in the Constitution as an integral part of the basic human rights provisions of individuals.^[7] In this regard, it can be said that the constitutional provisions guaranteeing protection of property rights were an aspect of land reform measures, directed to safeguarding the land rights of the indigenous people. Acquisition of private citizens’ property, particularly land, by using the power of eminent domain is strictly governed by constitutional provisions.^[8]

Accordingly, the criterion used by successive governments to determine the amount of land the State should own in Papua New Guinea has been one of “necessity”, viewed in the context of public purpose, rather than of “desirability”.^[9] This is very important for two reasons. First, it allows the government the opportunity to deal with existing State land, if it is not needed immediately for development purposes, in the interests of the public. Such land can be returned to the original customary owners or to land-short Papua New Guineans. Secondly, the government may refrain from acquiring land unless it is absolutely necessary to do so.

It should be noted that, although “property” refers to personal as well as real property, and includes corporal and incorporeal hereditaments, this paper principally focuses on rights over or interests in land. It is, therefore, not the concern of this paper to deal with property other than land rights or related interests, and accordingly, the use of the term “property” must be read and understood in this context. In particular, the paper examines the extent of the constitutional property protection under the Constitution and the circumstances in which such protection may be curtailed. This necessarily involves the examination of the extent to which non-citizens’, as well as, citizens’ property rights are protected under the laws of Papua New Guinea.

B. Property Rights of Citizens

1. Property Rights of Automatic Citizens^[10]

As mentioned, despite the various policies of the colonial administrations to protect indigenous land rights, a lot of occupied land was acquired through waste and vacant or ownerless declarations and other forms of forcible acquisition. Such acquisitions led to shortages in many parts of the country, and resulted in feelings of insecurity and uncertainty amongst Papua New Guineans as to their land rights.

Given this history of land acquisition, one of the important issues which featured prominently in forums conducted by Constitutional Planning Committee (hereafter “CPC”), in the course of its work leading up to the drafting of the Constitution, was the need to incorporate property rights in the Constitution to prevent repetition of such actions against the land rights of Papua New Guineans. It was consequently decided that the property rights of citizens should be incorporated as an integral part of the basic human rights provisions in the Constitution, in order to prevent the repetition of the abuse of the power of eminent domain.^[11]

The relevant provisions guaranteeing protection of private citizens’ property rights are contained in s 53(1) of the Constitution. This section provides that possession cannot be compulsorily taken of any property, and no interest or right over property can be compulsorily acquired, except in certain specified circumstances in accordance with law.^[12] These specified circumstances are where the land is acquired for “a public purpose” (eg public defence, health, education and roads),^[13] or for “a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, provided that the purpose or reason has been so declared and described in a Organic Law or an Act of the Parliament”.^[14] In addition, s 53 requires that the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason “is such as to afford reasonable justification for the causing of any resultant hardship to” the dispossessed owner.^[15]

The fact that s 53 allows for acquisition of private property in limited or specified circumstances is evidence of the fact that the protection of the property rights of citizens, as an integral part of the basic human rights provisions in the Constitution, is not absolute. Indeed, the property rights guaranteed in s 53, like most other fundamental rights and freedoms, are subject to certain qualifications.^[16]

The incorporation and protection of the property rights of citizens in the Constitution is based on a number of considerations. In particular, Papua New Guineans throughout the country, most of whom still own much of the land under traditional tenure,^[17] considered the protection of their property rights in the Constitution as a matter of high priority.^[18] It was accordingly felt that if these property rights were merely dealt with in an ordinary statute like the Human Rights Act 1971,^[19] the law could be easily changed in the normal way (by a simple majority vote) at any time by the government of the day to suit its own interest. On the other hand, if the rights were incorporated in the Constitution, they would be better protected from government interference.^[20] Further, there had been no fundamental human rights provisions binding the colonial power, and as a result the colonial administration had not always respected the land rights of the indigenous people, notwithstanding its promises.^[21] The decision to accord constitutional protection to the land rights of the indigenous people was, therefore, necessary to prevent the repetition of those abuses.

2. Property Rights of Non-Automatic Citizens

The protection of property rights in the Constitution is accorded to all citizens, that is, both automatic and non-automatic citizens.^[22] However, the property rights of non-automatic citizens were not accorded constitutional protection for the first five years after Papua New Guinea’s Independence on 16 September 1975, that is until 16 September 1980. During the first five years after Independence, the property interests of non-automatic citizens were treated in the same way as those of non-citizens.^[23]

At first glance, the distinction between different classes of citizens appears to conflict with the principle of equality between citizens as required by the National Goals and Directive Principles,^[24] and to violate the substantive provision on equality of rights of citizens guaranteed by s 55 of the Constitution, irrespective of inter alia race, tribe or place of origin. However, it can be argued that the distinction between different classes of citizens may be rationalised on the basis that without it, the Constitution would have institutionalised the exploitation of automatic citizens by non-automatic citizens who were beneficiaries of the colonial rule. If the property rights of automatic citizens were to be truly protected, then that distinction was justified by the need to redress the economic and social imbalance between automatic and non-automatic citizens caused by the colonial system. The limiting of the protection of property rights to automatic citizens for five years from Independence Day was in accord with that need. It was necessary to enable the government to complete the Plantation Acquisition Scheme and to implement other land reform proposals.^[25]

Furthermore, it can be argued that s 55 of the Constitution is a qualified right, and that the equality of citizens guaranteed by that section is subject to the making of any laws under any other provisions of the Constitution for the special benefit or advancement of under-privileged or less advanced groups in the country.^[26] This includes the enactment of discriminatory legislation against any category of citizens for the purpose of giving an advantage or special assistance to automatic citizens. The recently repealed Lands Acquisition (Development Purposes) Act 1974^[27] (hereafter “Lands Acquisition Act”) was such a discriminatory statute enacted for the benefit of an under-privileged or less advanced group of automatic citizens. This Act was enacted to give effect to the Plantation Acquisition Scheme by providing for the acquisition of plantation lands or properties owned by foreigners or persons or bodies originally of foreign origin. The lands were then to be re-distributed to the original customary landowners or their descendants, for subsistence farming purposes where land for such purposes is in short supply, or for economic development purposes so that they may participate in and benefit from the economic development of the country.

The acquisition of land involved in the case of Frame v Minister for Lands^[28] is a case in point. In that case, the land owned by Mr. Frame, a naturalised (non-automatic) citizen, was acquired by compulsory process under the provisions of the Lands Acquisition Act for the purposes of redistribution to the original customary owners under the Plantation Acquisition Scheme for economic development purposes. The Minister for Lands determined the compensation payable for the acquired property.

Although there was no dispute as to the power of acquisition under the Act, there was a disagreement as to the quantum of compensation determined by the Minister. Mr. Frame therefore appealed to the National Court against the Minister’s determination, arguing that his property was under-valued particularly given the vast improvements achieved, the high coffee prices prevailing at the time of the acquisition and the demand for the acquired property. The compensation determined by the Minister, the appellant argued, could not be termed “just compensation on just terms” as required by s 53(2) of the Constitution; it fell far short of the constitutional yardstick. The National Court, in allowing the appeal, said that the quantum of compensation was palpably unjust. The expression “just terms” in s 53(2) “involves full and adequate compensation for the compulsory taking”.^[29]

C. Qualifications on Property Rights of Citizens

The protection of property rights of citizens in the Constitution is not unlimited or absolute. Indeed, protection of citizens’ property rights, like all other basic human rights and freedoms, except the right to freedom from inhuman treatment,^[30] is subject to some qualifications. Thus, as noted, compulsory acquisition of a citizen’s property is permitted under s 53 of the Constitution provided it is for (a) a public purpose or (b) a reason that is reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind, where the purpose or reason has been so declared and defined in an Organic Law or Act of the Parliament.^[31] Further, the necessity for the compulsory acquisition for the attainment of that purpose or reason must be such as to afford reasonable justification for the causing of any resultant hardship to any person affected.^[32]

In other words, the protection of property rights of citizens guaranteed by s 53 must, therefore, on occasions yield to the wider national interest. Generally, apart from the prescribed circumstances of s 53, the constitutional provisions on property protection operate, as a legal restraint on the power of eminent domain of the government to expropriate the private property of citizens.

The qualifications mentioned are based on the CPC recommendations that provision should be made to allow the government to acquire land by compulsory process in limited cases to meet developmental objectives.^[33] Otherwise, without such provisions, the government would be obliged to pay very substantial sums from its limited resources, on strict market conditions, to acquire land. In turn, this would restrict the ability of the government to carry out programmes designed to achieve a fairer distribution of the resources in accordance with National Goal 2 of the Constitution.^[34]

1. Acquisition for a Public Purpose

The objectives which would satisfy the criteria of public purposes under s 53 of the Constitution include those connected with public defence, safety, order, welfare, health services, protection of persons under legal or practical disability, the development of under privileged or less advanced groups or areas, or the protection of the rights and freedoms of other individuals.^[35] Thus, for one or more of the above purposes as defined in the legislation,^[36] the government of the day can compulsorily acquire land owned by a private citizen. Any acquisition for a purpose other than for a public purpose as defined by an Organic Law or an Act of Parliament would be unconstitutional and therefore null and void.^[37] Under normal circumstances therefore the government is bound to exercise the power of eminent domain subject to these constitutional restrictions.

2. Acquisition for a Reasonably Justifiable Reason

According to the alternative constitutional qualification, an acquisition of private property or restriction or regulation on property rights from a citizen must be for a reason that is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. The phrase “reasonably justifiable in a democratic society” has been described as “the permissible extent to which wider social interests may restrict the seemingly absolute individual interest”.^[38] According to Chalmers, the meaning of the phrase “reasonably justifiable in a democratic society” is ambiguous and any attempt to apply it will give rise to many problems.^[39] The CPC, while agreeing that the phrase presented problems of interpretation and application, suggested that the courts in Papua New Guinea should find this less difficult because the word “justifiable” rather than “necessary” or “required” had been used.^[40] The word “justifiable” provides the flexibility necessary for the courts to decide whether a particular action taken by the legislature or executive is reasonably justifiable in the circumstances, rather than deciding how the legislature or executive should or ought to have acted in a particular situation. Our courts can also seek assistance from interpretations given to the phrase by courts in other jurisdictions whose legal system is similar to that of Papua New Guinea.^[41]

The question whether an act or a proposed act is reasonably justifiable in a democratic society is to be determined in the light of the circumstances obtaining at the time when the decision is made.^[42] To assist the judges in reaching a decision on whether an act or a proposed act is reasonably justifiable, the courts may invoke the National Goals of the Constitution, which can be interpreted as representing national aspirations.^[43] The National Goals can provide additional assistance to the courts when weighing the claims of the individual against that of society generally. In addition, the courts can have recourse to sources such as the provisions of the Constitution, the United Nations Charter on Human Rights, the laws, practices and judicial decisions of the national courts or courts of any other country which has a similar legal system as that of Papua New Guinea, the CPC Report and to any other materials the courts consider relevant.^[44]

Any restriction on or regulation of property rights of citizens can only be valid under an enactment passed in accordance with the requirements of s 38(2) of the Constitution.^[45] That is to say, the law purporting to restrict or regulate the rights in s 53 must expressly state that first, it is for the purposes of restricting or regulating guaranteed rights. Secondly, it must specify the particular right that is being restricted or regulated. Thirdly, it must be made by the National Parliament and certified by the Speaker of the Parliament under s 110 of the Constitution to have been duly made. Unless the enactment of the law is for the purpose of dealing with a state of emergency, the law must strictly comply with the requirements of s 38.^[46] This is an important safeguard against executive abuse of the basic rights of individuals. It may be noted that law that is enacted to regulate or restrict the basic rights and freedoms of individuals, in the public interest or in accordance with the general qualifications on basic rights and freedoms in s 38 of the Constitution, is presumed to be constitutional and to have been passed in the reasonably justifiable interest of the country. The burden to establish the contrary is on those who allege otherwise.

3. Other Qualifications under Section 53(5)

In addition to the acquisition of private property under s 53(1) for a public purpose or a reasonably justifiable reason, s 53(5) of the Constitution permits acquisitions in certain other circumstances. The relevant situations, in which generally no compensation is payable, are as follows:

(i) The acquisition of private property or rights over or interests in property may be effected under s 53(5) in a situation where the particular acquisition is authorised by any other provision of the Constitution.^[47] An example would be the taking of possession or acquisition of property using emergency powers^[48] during an emergency period.^[49] In such circumstances, the property acquired would normally be required to be returned to the owner as soon as the emergency situation ceases. If any damage or destruction were caused to the property or loss occurred, appropriate compensation would lie to recompense the owner.

(ii) Section 53(5) permits taking of possession or acquisition of property in consequence of an offence or an attempted offence against a law.^[50] Taking of possession of property from a defendant in a criminal matter as surety to ensure attendance at court proceedings would be an instance of such an acquisition. Also, s 53(5) permits taking of possession of property or rights over or interests in property where the acquisition is necessary to satisfy a debt or civil obligation,^[51] for example where a mortgagee takes possession of property the subject of the mortgage on account of the mortgagor’s outstanding debt. In such a case, the mortgagor may redeem the property upon settling the mortgage debt and the mortgagee cannot deny the borrower’s right of redemption.

Further, property may be taken where it is or may be required as evidence in proceedings before a court of law or an administrative tribunal.^[52] Here, the property must be returned at the end of the period for which its retention is reasonably required.^[53] It is submitted that failure to return the property to the owner would amount to an infringement of property rights under s 53 and would be enforceable under ss 57^[54] and 58^[55] of the Constitution.

(iii) The acquisition of property may be allowed under s 53(5) where such acquisition is effected under a grant inter vivos or by succession via a testamentary disposition.^[56] Hence where a grant inter vivos has been duly made but the person in possession has refused to deliver up the property upon demand by the grantee, the property the subject of the grant may be taken possession of to enable delivery to be made to the grantee. Similarly, the beneficiaries under a valid testamentary disposition may enforce their rights in accordance with the terms of the particular will. In such as a case, property may be taken possession of in order to give effect to the disposition so made under the will.

(iv) The acquisition of property is permitted under s 53(5) where such acquisition is effected in accordance with custom.^[57] Where there is a dispute, for example, factual evidence of a particular custom will be required to allow or validate the acquisition. In the absence of a dispute, the transmission of property rights will be allowed in accordance with relevant custom.

(v) The taking of possession or acquisition of property is permitted under s 53(5) where the acquisition is in relation to ownerless or abandoned property, other than customary land.^[58] Acquisition of land or property as waste and vacant or ownerless exemplifies this type of acquisition. Under s 5 of the Land Act 1996, any land which is deemed not to be customary land can be declared as not customary land by a notice published in the National Gazette. If there is no dispute with respect to the declaration within three months, the land is deemed for all purposes to be government land. Also, in a situation where an owner of property or beneficiaries of a will cannot be ascertained after reasonable enquiries or investigations, the property will go the State under the doctrine of bona vacantia. Hence in Re Johns,^[59] the testator died leaving a will disposing of his estate. After unsuccessful attempts to establish the next of kin of the testator, both in Australia and in Papua New Guinea, it was held that the property should go to the State under the rule of bona vacantia as ownerless property. Moreover, should any abandoned property be found, it can be taken possession of by the State under s 53(5).

(vi) In addition to the acquisitions in the circumstances so far mentioned, reasonable restrictions on the rights of an owner to use property in a particular way may be imposed where necessary for the preservation of the environment or of the national cultural inheritance.^[60] Relevant examples would include the imposition of a restriction on the sale of rare artefacts to tourists (to protect the national cultural inheritance), or restrictions on the shooting of birds of paradise (to preserve the environment). Such restrictions and limitations, then, are not prohibited by the general protection of property rights contained in s 53.

D. Property Rights of Non-Citizens

1. Protection of Non-Citizens’ Property

In contrast to the protection of citizens’ property rights, non-citizens do not enjoy any special constitutional property protection,^[61] and are further prohibited from acquiring freehold interests in land.^[62] These constitutional provisions are a direct consequence of the National Goals enshrined in the Constitution, which call for national sovereignty and self-reliance^[63] and are based upon the recommendations of the CPC that constitutional property protection should be restricted to citizens.^[64] The argument in support of this restriction was based upon sympathy with the Commission of Inquiry into Land Matters (hereafter “CILM”) recommendations on the need for the reacquisition and redistribution to Papua New Guineans of expatriate-owned plantation lands in accordance with the Plantation Acquisition Scheme, and the conversion of freeholds and perpetual estates of non-citizens into government leases.^[65]

Both the CILM and CPC, nevertheless, agreed that property rights of non-citizens should be protected by ordinary legislation. In the case of the CPC, it recommended the protection of such interests by legislation, agreement between the government and property owners, or by a general law concerning a certain type of property.^[66] The argument in support was that if the Constitution had given equal protection to citizens and non-citizens, this would have not only limited the ability of the government to acquire and re-distribute foreign-owned property to citizens in accordance with its Plantation Acquisition Scheme, but also restricted the capacity of the government to carry out programmes designed to achieve a fairer distribution of benefits from the use of resources.^[67]

The CPC recommendation is reflected in the wording of s 53(7) of the Constitution, which states that the power to compulsorily take possession of, or to acquire an interest in or right over the property of non-citizens, shall be as provided for by an Act of the Parliament. This is intended to give the government of the day sufficient flexibility to deal with the acquisition of and payment for foreign-owned property in order to deal with the land shortage and other problems associated with land alienation during the colonial period. For the purposes of s 53(7) of the Constitution, the former National Investment and Development Act^[68] and the Lands Acquisition Act^[69] were enacted to protect the interest of non-citizens divested of their property.

The former of these Acts generally protected foreign investments or enterprises operating in Papua New Guinea. It guaranteed foreign investors that there would be no nationalisation or expropriation of their property except in accordance with law, for a public purpose defined by law. It further guaranteed them the right to remit overseas all compensation payable upon nationalisation or expropriation of property rights.^[70] The present Investment Promotion Authority Act 1992, which has repealed the National Investment and Development Act, retains essentially similar provisions as the repealed Act, guaranteeing protection of non-citizen property owners.^[71] In the event of any disputes arising out of foreign investment, the government guarantees to allow the disputes to be resolved in accordance with the provisions of the Investment Disputes Convention Act,^[72] which implements the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States.^[73]

The second Act referred to, the Lands Acquisition Act, specifically affected freehold lands owned by foreigners or persons and/or bodies originally of foreign origin. It expressly guaranteed that, in the event of any compulsory taking of land by the government, compensation must be paid to the dispossessed owner in accordance with the principles of compensation set out in the Act.^[74] The Land Act 1996 has repealed the Lands Acquisition Act but retains in a modified form the principles of compensation previously contained in the earlier Act.^[75] Thus, although non-citizens’ property interests are not accorded constitutional protection, the ordinary legislation contains provisions which guarantee protection in the event of expropriation.

In Minister for Lands v Frame,^[76] the Supreme Court considered the rights of non-citizens to receive compensation in accordance with the principles of compensation under the Lands Acquisition Act. In that case, the appellant, the Minister for Lands, appealed against the decision of the National Court (which had set aside his determination of compensation payable for the acquisition of the respondent’s plantation land on the grounds that it was palpably unjust).^[77] Although the matter involved rights to compensation of a citizen divested of his property, the Supreme Court ventured to consider the rights of non-citizens in similar circumstances. In so doing, the Supreme Court, by majority, held that the non-citizen property owner, divested of property, is not entitled to compensation in accordance with the constitutional yardstick of just compensation to be made on just terms under s 53(2), but would be entitled to compensation in accordance with the provisions of the Lands Acquisition Act, by which the acquisition in that case had been effected.^[78]

Apart from these legislative provisions, a further initiative was instituted under the Plantation Acquisition Scheme to protect the property interest of non-citizens. Under this initiative the Australian government was approached by Papua New Guinea to cover the difference between what foreign plantation owners could reasonably expect to get and what Papua New Guineans acquiring the property could reasonably be expected to pay. The object of the initiative was to avoid potential damage to Papua New Guinea’s international image to the detriment of investment and aid schemes. However, insufficient funds were made available to implement the scheme at the level originally intended.^[79]

2. Non-Citizens’ Rights to Freehold Land

The Constitution, by s 56, states that only citizens may acquire freehold land. The Constitution makes the right to acquire freehold land a “special right of citizens” and prevents non-citizens from acquiring freeholds in the country.^[80] By implication, a non-citizen may retain any freehold land acquired before Independence Day, unless it was otherwise converted by statute into a State lease, but has no capacity to acquire new freeholds after the Constitution came into effect on 16 September 1975. The CILM had recommended that all freeholds be converted into Government leases of 60 years for citizens and 40 years for non-citizens, and development conditions be imposed on the lessees.^[81] However, the Constitution not only accords rights to citizens acquire freeholds, but also gives protection to freeholds held by citizens. This appears to represent a significant departure from the recommendation of the CILM.

In order to implement the provision of s 56 of the Constitution, the Land (Ownership of Freeholds) Act^[82] was enacted. The Act defines^[83] the forms of freehold ownership for the purposes of the Constitution and provides for non-citizen owners voluntarily to surrender their freehold titles to the State and obtain, in their stead, substituted State leases of 99 years. This Act, therefore, does not make mandatory the conversion of freehold interests held by non-citizens. This reinforces the point that s 56 prevents the acquisition of new freeholds by non-citizens but does not affect those acquired before Independence Day. It was proposed in the early 1980s to introduce a new statute to amalgamate all existing land legislations and which would include a provision to allow for mandatory conversion of freeholds into leaseholds.^[84] Although the current consolidated Land Act was enacted in 1996, no such provision has been included in the Act.

There is no provision under the Land (Ownership of Freeholds) Act for compensation to be paid to the lessee for loss of the freehold reversion which vests in the State absolutely.^[85] This is in line with the CILM recommendation that a conversion of freeholds to government leaseholds is no real deprivation of property.^[86] This assumption has no basis in fact or law, because conversion of perpetual interests into those of fixed terms of years is a deprivation of property for which a foreign private property owner is likely to want to be compensated. However, as non-citizens have not been accorded constitutional property protection, a conversion statute which makes no provision for compensation may still be a valid law and hence enforceable. This proposition appears to be supported by the Constitution, which states that a law that is made for the purpose of prohibiting or regulating certain interests held by non-citizens in relation to any land is valid.^[87] Thus, the Land (Ownership of Freeholds) Act is a constitutionally valid law and enforceable as it only seeks to regulate the interests of non-citizens in land, and is thus consistent with the land reform measures of the government.

Although the Land (Ownership of Freeholds) Act provides for conversion of freeholds held by non-citizens into State leases, there are no related provisions dealing with disposition of land as freeholds. In the absence of an express provision to the contrary, certain assumptions are inevitable. First of all, since citizens are allowed to acquire and/or hold freehold land or interests therein, non-citizen freehold owners can convey such interests to citizens. Secondly, non-citizens can sell their freeholds to the government under the Plantation Lands Acquisition Scheme or otherwise, rather than surrendering them to the State to obtain State leases under the Land (Ownership of Freeholds) Act. Thirdly, it may be possible for non-citizens to make testamentary dispositions of their freehold interests in land to their lineal or collateral descendants. The beneficiaries under such dispositions can acquire a valid freehold title. In contrast, however, the validity of any dispositions or purported dispositions made inter vivos to another non-citizen is likely to be affected by of the operation of s 56 of the Constitution.

Due to problems caused by colonial land acquisitions in the South Pacific, a number of countries have adopted similar constitutional or other schemes to deny foreigners the right to hold freehold lands. For instance, the French and British colonial powers granted their citizen landowners excessive security to protect their interests, in most instances “much more than the law required or justice would otherwise allow under normal circumstances”.^[88] Consequently, at independence in 1980, the Constitution of Vanuatu abolished all freehold lands held by foreigners and recognised the land rights of the indigenous people only.^[89] Similarly, in Western Samoa the Berlin Act 1889 prohibited the alienation of customary land by foreigners, and on independence in 1982 this restriction was embodied in the Constitution of Western Samoa.^[90] Subsequently, the Alienation of Freehold Land Act 1972 was enacted to control the alienation of freeholds to foreigners, both individuals and corporations, as well as to non-resident citizens and trustees of beneficiaries who are non-citizens.^[91] As a final example, in the Solomon Islands, as a result of the dubious nature in which freehold lands were acquired during the colonial administration, the land has been taken over by the new national government since independence.^[92]

E. Equitable Rights or Interests in Land and Section 53

The rights over or interests in land include equitable as well as legal rights or interests. It is, therefore, necessary to examine in this section whether the protection of property rights under s 53 of the Constitution extends to equitable rights or interests in land. As the term implies, an “equitable right or interest” in land is not a legal right or interest in property. In a situation of conflict, normally an equitable right or interest cannot defeat a legal right or interest, unless it can be established that such right or interest is recognised by law.^[93] For instance, in a situation where the owner of land by acquiescence allowed the trespasser to take possession of the land, which led the trespasser to believe that he could remain on the land permanently, and accordingly carried out certain improvements. In this case, the owner will be estopped from subsequently insisting on the full legal title or, for that matter, denying the trespasser’s right to be on the land. The trespasser in these circumstances is entitled to claim equitable rights over or interests in the land by virtue of long occupation of the land or estoppel by acquiescence against the owner.

This issue often arises in Papua New Guinea where squatters living on government lands, after being served with a notice to quit land, rely on estoppel to assert equitable rights or interests in the land. The squatters often argue that the government’s acquiescence has led them to believe that they are allowed to occupy the subject land permanently, and on this basis they have proceeded to effect improvements on the land. The issue then becomes whether the equitable rights acquired by the squatters are capable of being recognised and protected under s 53 of the Constitution.

The point has featured in a number of cases since Papua New Guinea’s became independent on 16 September 1975. The first case was png Ready Mixed Concrete Pty Ltd v State of Papua New Guinea,^[94] where the plaintiff company was granted a State lease over the land and sought to evict squatters occupying the land so as to obtain immediate vacant possession of the land. The squatters were given 14 days notice to quit under the Land Act 1962. It was argued for the occupants that the government and its officials were aware that squatters were illegally moving onto the land, and constructing buildings and effecting other improvements there, but initially failed to warn them or take any action against them. In addition, the plaintiff company also knew of the squatters’ presence on the land and that the land was not vacant. The government’s acquiescence therefore gave the squatters an equitable interest, which required protection under s 53 of the Constitution. More fundamentally, it was argued that an order of the court determining the right of the occupants to be in possession of the land would be a compulsory forfeiture, extinction or determination of a right or interest in property held by citizens within the meaning of s 53(4) of the Constitution and was prohibited by s 53.^[95]

The National Court, however, held that the word “compulsory” under s 53 implies the exercise of some power conferred by statute on the State or an instrumentality of the State, not on the court. Section 53 of the Constitution is, therefore, not directed at the decision of a court which adjudicates, declares or determines pre-existing rights.^[96] A mere determination or adjudication by the court as to whether certain rights exist and, if so, a declaration to that effect does not amount to a compulsory forfeiture, extinction or determination within the meaning of s 53(4) of the Constitution. The court further held that compulsory forfeiture, extinction or determination denotes a deprivation of a legal right of a person, not an equitable right. The implication of this finding is that s 53 is designed only to protect legal rights or interests in land, not equitable rights or interests.

The squatters in this case, having only acquired equitable rights or interests by virtue of the government’s acquiescence coupled with their long occupation of the land, were not entitled to protection under s 53. The court, however, declared that the 14 days eviction notice given to the squatters, although given under a valid law, was unreasonable and harsh and oppressive contrary to s 41 of the Constitution.^[97] Accordingly, the court ordered an extension of the period of notice, in order to give the squatters adequate time to vacate the land.

A related matter in that case was whether the squatters’ equitable rights were compensable under s 58 of the Constitution.^[98] On this point, the court stated that the right to protection of property in s 53 of the Constitution did not extend to equitable interests such as those acquired by long possession of land or rights acquired by estoppel by acquiescence. It therefore followed that, since no constitutional rights had been infringed, the courts’ powers under s 58 were inapplicable.

One important issue which was not argued before the court was whether the occupants should be compensated for the permanent improvements to the land such as buildings, and food gardens and economic trees like coconuts, breadfruit, mangoes, bananas, and the like. In the absence of a judicial position on the issue, perhaps the only option available to the squatters in similar circumstances would be to seek a negotiated settlement with the government or other legal title holder with respect to their losses.

A related decision is that of Jivetuo v State of Papua New Guinea.^[99] There, the plaintiff and the class of squatters he represented, who squatted on government land in Madang town, were served with 14 days notice to quit under s 113 of the Land Act.^[100] The plaintiff brought proceedings seeking declaratory orders to restrain the defendants from evicting them. On of the grounds was that they could not be evicted unless and until a court had convicted them under s 113 of the Act. The court rejected the argument saying that a notice to quit from the owner does not necessarily have to be preceded by a conviction.

A further issue was whether the plaintiffs had an equitable interest in the land, but this point was not pursued before the court on this occasion. Finally, although the issue of adequacy of the period of notice was only raised briefly by counsel for the plaintiffs, the court on its own initiative, exercising the powers under s 57 of the Constitution,^[101] considered the matter and held that the 14 days notice, although given under a valid law, was harsh and oppressive and thus contravened s 41 of the Constitution. The court ordered that, given the long occupation of the land by the plaintiffs and the interests created thereon, the occupants should be given two months to vacate. The issue of compensation under s 58 of the Constitution was also not argued in this case.

The issue of equitable interests acquired by long possession of land on the part of squatters or by estoppel by acquiescence featured again in Bai v Morobe Provincial Government.^[102] In that case, the plaintiff brought action, on behalf of himself and other squatters occupying government lands on 22 different locations within Lae city, seeking declaratory orders, inter alia to restrain the defendants from acting on eviction notices under the Land Act which gave them 14 days to vacate the lands. The plaintiff and the class he represented argued that they had been occupying the lands for varying periods without interruption by the defendants and, as a result, had acquired equitable interests in the lands that should be protected under s 53 of the Constitution.

Following the approach taken by the courts in the earlier decisions, and in particular in png Ready Mixed Concrete, Doherty J held that the right to protection of property in s 53 of the Constitution does not apply to equitable rights or interests acquired by reason of long occupation of land and acquiescence by the owner. It followed, therefore, that since the squatters’ rights were not recognised or protected under s 53, no constitutional rights had been infringed. That being the case, the powers of the court to award compensation under s 58 of the Constitution were inapplicable. In other words, the court held that in order for the squatters’ rights or interests to be recognised by the court, it had to be established that the squatters had acquired legal title over those rights or interests that are recognised in law. Doherty J said:

“There is no doubt from evidence before me ... that this is government land, and I consider that, before I can make an order declaring that the occupants have a right to have the title transferred to them, it has to be proved to me that they acquired a title that is recognised in law ... It has to be shown that either proper procedures under the Land Act have been followed and land allocated or they acquired a right recognised under another statute or by the underlying law enforceable in a court.”^[103]

From the three cases discussed above, it is abundantly clear that the concept of compulsory acquisition of private citizen’s property includes any forfeiture, extinction or determination of any rights over or interests in property.^[104] However, unless any such forfeiture, extinction or determination is in relation to rights over or interests in property capable of recognition under s 53 of the Constitution, those rights or interests cannot be enforced by the courts. In other words, the plaintiffs must establish that they have acquired legal title over the property or that their rights over the property are recognised in law, such as for example rights or interests acquired by the doctrine of adverse possession. Only then can the court exercise its powers under ss 57^[105] and 58^[106] of the Constitution to enforce such rights or interests. Consequently, since equitable rights over or interests in property are not recognised and protected under s 53, the courts in Papua New Guinea cannot protect against any compulsory forfeiture, extinction or determination of such rights or interests.

It seems that the only judicial remedy available to the claimants would be an extension of the period of notice to give ample time to the occupants vacate the land. The courts have consistently held that they have powers under s 57 of the Constitution to grant extensions of time where occupants of land, who have acquired equitable interests by reason of long occupation or rights by estoppel by acquiescence, have been given insufficient eviction notice to vacate land. Hence, in png Ready Mixed Concrete, Jivetuo and Bai, the courts made use of s 41 of the Constitution in order to extend the periods of notice to enable the plaintiff squatters to vacate and find alternative lands to settle, notwithstanding that the Land Act was silent on the length of notice to be given.

F. Compensation Payable to Dispossessed Owner

We have already noted that compulsory acquisition of private property is not allowed under s 53 of the Constitution unless the acquisition is for a public purpose or for a reason that is reasonably justifiable in a democratic society that has proper regard for the rights and dignity of mankind. Where compulsory acquisition becomes necessary, the government as an acquiring authority must in effect satisfy two conditions. The first, a condition precedent to the exercise of the power, is that the acquisition must be for such a purpose or reason. The second condition is a condition subsequent to the acquisition, namely that compensation is payable for such acquisition.^[107]. The aspect of compensation merits some discussion here.

1. Rights of Citizens to Compensation

In situations where compulsory acquisition is permitted, the dispossessed private citizen landowner is entitled to claim compensation from the government. Section 53(2) of the Constitution provides that the dispossessed owner is entitled to receive just compensation calculated and paid on just terms by the expropriating authority.^[108] The Constitution does not define what is meant by “just compensation” or “just terms”. However, generally the term “just compensation” refers to the full monetary equivalent of the land taken. On the other hand, “just terms” focuses on what is fair and reasonable in the particular circumstances and refers not only to the interests of the divested landowner but also to those of the community in general.^[109] The right of a citizen to receive just compensation to be made on just terms was confirmed by the National Court in Frame v Minister for Lands,^[110] and was subsequently affirmed by the Supreme Court on appeal.^[111] As discussed previously, s 53 was designed to protect the property rights of citizens only (except that non-automatic citizens were denied this benefit for the first five years after Independence Day).^[112]

It must be noted, however, that the right of the private citizen divested of property to receive just compensation to be made on just terms is subject to significant limitations imposed by sub-ss (2) and (3) of s 53, which require that payment of the compensation must be consistent with the provisions of the National Goals and the national interest. This means that, in order to give effect to the National Goals and national interest, a fair provision may be made to defer payment, effect payment by instalments, effect payment otherwise than in cash or effect payment partly in cash and partly in kind. Payments in this instance may include such things as shares or equity in a project on the land acquired, or alternative tracts of land of equivalent size and value as that acquired. The principles of payment used here are important not only because they may serve the long term benefit of the dispossessed landowner, but also because they replicate practices inherent in many parts of Papua New Guinea, where various types of payment in kind are used in settlement of disputes, compensation for deaths, brideprice payments, traditional exchanges, and so on.^[113] It is submitted that such payments, made for purposes of giving effect to the National Goals and national interest, are quite consistent with the notion of just compensation made on just terms.

2. Rights of Non-Citizens to Compensation

The position of non-citizens who are dispossessed of their lands or properties by compulsory process is clearly established by s 53(7) of the Constitution. This states that the provisions of s 53 (in particular those relating to the rights to receive just compensation to be made on just terms), do not apply “in relation to the property of any person who is not a citizen and the power to compulsorily take possession of ... the property of any such person shall be as provided for by an Act of the Parliament”.

The gist of s 53(7) can be seen as an expression of the nationalistic spirit of the National Goals of the Constitution, which seek economic self-reliance for Papua New Guinea.^[114] It reflects the policies of successive governments since 1972 to acquire properties owned by non-citizens for the benefit of citizens, especially former customary landowners, without the same measure of compensation as would be paid to citizens.^[115] As non-citizen property owners have no constitutional protection, they are only entitled to compensation in accordance with the provisions of the particular legislation under which their properties are acquired. This is in accord with the CPC recommendation “to give the Government of the day sufficient flexibility to deal with the acquisition of foreign-owned property and payment for it in an appropriate way, according to the particular circumstances with which it is faced”.^[116] As noted above, the recently repealed Lands Acquisition Act 1974 provided a classical example of the kind of legislation envisaged in s 53(7), giving the government the capacity to deal with foreign-owned properties in pursuance of the social and economic policies of the country. Today, s 23 of the Land Act 1996 outlines the principles of assessment of compensation in the event of acquisition.

If non-citizens are not entitled to the constitutional yardstick of just compensation to be made on just terms upon expropriation of their property, what should be the standard on which their claim for compensation can be assessed? The question was analysed by the Supreme Court in Minister for Lands v Frame,^[117] where the Minister for Lands appealed against the decision of the National Court setting aside as unjust his determination of compensation to be awarded to the respondent landowner whose land was acquired under the Lands Acquisition Act 1974. In their judgments, the court took time to analyse the position of non-citizen property owners (and non-automatic citizen owners within the first five years from Independence) in accordance with the principles of assessing compensation under s 19 of that Act.

The court was somewhat divided on the issue of the appropriate standard to be applied, although this was not significant for the ultimate decision of the court to dismiss the appeal. According to the minority view on this point (Pratt J), the compensation payment to the dispossessed non-citizen property owner under the Act means the “full money equivalent of the thing of which he has been deprived”.^[118] In essence, the minority view is that the dispossessed non-citizen property owner is entitled to compensation based on the full market value of his property on just terms under s 19 of the Act, which is the same as the compensatory standard under s 53(2) of the Constitution.

In contrast, the majority of the court (Greville-Smith and Kapi JJ) was of the opinion that a non-citizen, divested of his property under the Act, is to receive compensation only as prescribed by the Act itself. That is to say, he is only entitled to receive “the money value of the land to him in accordance with the machinery provided in s 19 ... [because] s 16 of the Act^[119] precludes the concept of just terms under s 53(2) of the Constitution being read into the Act”.^[120] That is, the compensatory standard for the non-citizen owner divested of his property, in accordance with the principles of compensation in s 19 of the Act, is the money value of the property due to him. The question of just terms does not apply because of the operation of s 16 of the Act. Presumably, the majority of the court considered that this standard is one that is (or may be) less than just compensation to be made on just terms under s 53(2) of the Constitution.

With due respect to the minority opinion, the opinion of the majority of the court appears to be consistent with the policies of the successive governments since self-government in 1973 to restructure society by acquiring properties owned by foreigners with appropriate payments, and to redistribute them to nationals in order to rectify the economic imbalance between citizens and non-citizens created during the colonial administration.

G. Conclusion

To summarise, the alienation of land during the colonial era resulted in serious land shortage problems in many parts of the country and created insecurity and uncertainty amongst customary landowners. One of the measures instituted at the time of self-government and Independence to redress these problems was to provide constitutional protection for the property rights of citizens. Indeed, property rights are treated in the Constitution as special rights of citizens and form part of the basic human rights provisions, guaranteeing the security of citizen land holdings. Given the history of colonial land acquisition, the protection of property rights in this way was necessary to prevent further abuses by the government of the eminent domain powers.

The constitutional protection of property rights was restricted to citizens (and only automatic citizens during the first five years after Independence), so as to enable the government of the day to implement land reform and other social and economic programmes. The property rights of non-citizens were not accorded similar constitutional protection, but their property rights, including the rights to receive and remit compensation overseas in the event of expropriation of their property, have been adequately protected in ordinary legislation. In addition, non-citizens have been prevented by the Land (Ownership of Freeholds) Act from acquiring new freehold interests in land, a special right preserved to citizens by the Constitution. This however does not prevent non-citizens from retaining their existing freeholds as at Independence Day, since the Act does not make it mandatory for non-citizen freeholders to convert their freeholds into State leases. It is submitted that the constitutional protection of property rights of citizens and the prohibition against further acquisition of freehold land by non-citizens must be viewed as part of the government’s land reform policies.

Finally, in relation to citizen’s land rights, the provisions of s 53 of the Constitution are directed at protecting legal rights over or interests in property, rather than equitable rights over or interests in property acquired by reason of long occupation of land or estoppel by acquiescence. It is incumbent on those who rely on equitable rights over or interests in property to establish that such rights or interests are capable of being recognised in law and protected under s 53. Only then can the courts invoke their powers under ss 57 and 58 of the Constitution and recognise the rights or interests. Unless the claimants establish that their rights are recognised in law, then on the authority of png ready Mixed Concrete, Jivetuo and Bai, equitable rights or interests acquired by estoppel by acquiescence or long occupation of land are not protected by s 53 and, as such, cannot be protected by the courts in Papua New Guinea.

^[*] LL.B (UPNG), LL.M (Tas), Senior Lecturer in Law, University of Papua New Guinea; Associate, Nonggorr & Associates, Lawyers.

^[1] The proclamation of the Protectorate over Papua was made on 6 November 1884 by Commodore Erskine, and the annexation was subsequently proclaimed in same year by William McGregor.

^[2] German New Guinea was declared a colonial protectorate in 1884 and was annexed on 17 May 1885. Formal control was assumed in 1885 when the first representatives of the New Guinea Company arrived. The company was given the right to administer the territory until the German Imperial Government took over the administration of the territory on 1 April 1899. See G M S Muroa, “Recognition of Indigenous Rights: A Papua New Guinean Experience”, (1994) 24 Melanesian Law Journal 81-101.

^[3] See G M S Muroa, above n 2. Also, see J Mugambwa and H Amankwah, Land Law and Policy in Papua New Guinea (Hobart, Pacific Law Press 1996).

^[4] P G Sack, “The Triumph of Colonialism”, in P Sack (ed) Problem of Choice: Land in Papua New Guinea’s Future (ANU Press, Canberra 1973), at p 204; P and B Sack, The Land Law of German New Guinea (ANU Press, Canberra 1975), at pp 1-3; J Leyser, “Basic Procedure for the Trust Territory of New Guinea”, in Appendices to Land Tenure in Papua New Guinea (University of Papua New Guinea, Port Moresby 1976), at pp 77-85.

^[5] Australia took over the administration of Papua from Britain after the formation of the Commonwealth of Australia in 1901, and of New Guinea after World War I under a mandate from the then League of Nations as a Trust Territory of the League Nations. After World War II, the two Territories were brought under one administrative unit and became known as the Territory of Papua and New Guinea. This administration continued until Independence on 16 September 1975, after which the country became known as the Independent State of Papua New Guinea.

^[6] See generally, G M S Muroa, above n 2.

^[7] Section 53 of the Constitution guarantees protection of property rights as a special right of citizens, to be discussed later in this paper. The other measures instituted were the Plantation Lands Acquisition and Redistribution Scheme, and the Unused State Lands Redistribution Scheme, neither of which is the concern of this paper.

^[8] See G M S Muroa, “Constitutional Constraints on Power of Eminent Domain”, (1995) 23 Melanesian Law Journal 95-117.

^[9] R W James, Land Tenure in Papua New Guinea (University of Papua New Guinea, Port Moresby 1978), at p 65.

^[10] According to s 65 of the Constitution, an automatic citizen is a “person born in the country before Independence Day who has two grandparents born in the country or an adjacent area”, or a person born outside of Papua New Guinea prior to Independence Day who has two grandparents born in the country and who has renounced any other citizenship and has been registered as a citizen of Papua New Guinea. “Adjacent area” is defined by s 65 to mean the Solomon Islands, Irian Jaya and the Torres Straits Islands.

^[11] See G M S Muroa, Legal Aspects of Compulsory Acquisition of Land in Papua New Guinea (LL.M thesis, University of Tasmania, Hobart 1987), Ch 3.

^[12] Section 53(1) is in the following terms:

“(1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless –

(a) the property is required for –

(i) a public purpose; or

(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,

that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and

(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.”

^[13] See G M S Muroa, above n 8, for detailed discussion of this subject. For purposes of s 53 of the Constitution, s 2 of the Land Act 1996 provides a comprehensive list of pubic purposes for which private property may be acquired.

^[14] See s 53(1) (a) (ii) of the Constitution, discussed below. Also, see G M S Muroa, above n 8, for more detailed discussion of this subject.

^[15] Section 53(1) (b). See G M S Muroa, above n 8.

^[16] The qualifications under s 53 are discussed in Part C below.

^[17] This category of land held by Papua New Guineans is referred to as customary land or unalienated land, and is governed and regulated by customary law rather than common law or statute law. It represents a little over 97 per cent or 46,310,419 hectares of the total land area of Papua New Guinea; the remaining area (less than 3 per cent) is non-customary land or alienated land, and is governed and regulated by common law.

^[18] See Final Report of the Constitutional Planning Committee (Port Moresby 1974) (hereafter “CPC Report”), Ch 5.

^[19] Protection of property rights was one of the 11 basic human rights previously contained in the 1971 Act. Section 14 of the Act, inter alia, provided: “No person shall be deprived compulsorily of his property except in accordance with law and on just terms.”

^[20] See CPC Report, above n 18, Ch 5.

^[21]Professor James describes such promises by the colonial administration as “empty promises”: see R W James, Land Law and Policy in Papua New Guinea (Law Reform Commission Monograph No 5, Port Moresby 1985), at p 140.

^[22] A “non-automatic citizen” is a person who has become a citizen of Papua New Guinea other than as defined in s 65; that is a person who has become a citizen by “descent” under s 66 or by “naturalisation” under s 67 of the Constitution.

^[23] See s 68(4) of the Constitution.

^[24] National Goal 2 of the Constitution provides for equality and participation and declares: “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.”

^[25] See R W James, above n 8, at pp 125-126. The Plantation Acquisition Scheme was one of the land reform policies adopted in the 1970s to acquire and redistribute, to former customary landowners or their descendants, plantation lands owned by expatriates or non-automatic citizens in the 5 years after Independence.

^[26] See ss 55(2), 68(5) and 38(1) of the Constitution. Discriminatory legislation in this instance, however, could only be enacted within 10 years after Independence: s 68(5) of the Constitution.

^[27] This Act was subsequently revised in 1982 and was thereafter referred to as the Lands Acquisition (Development Purposes) Act (Ch 192), which Act was repealed by the Land Act 1996.

^[28] [1979] PNGLR 626.

^[29] The court in this instance applied the statement of Latham CJ in Johnson Fear & Kingham v The Commonwealth[1943] HCA 18; , (1943) 67 CLR 314 at 323. The decision was appealed to the Supreme Court (see below).

^[30] See CPC Report, above n 18, at p 5/1/6 (para 29).

^[31] See s 53(1) (a) of the Constitution.

^[32] See s 53(1) (b) of the Constitution.

^[33] See CPC Report, above n 18, Ch 5.

^[34] National Goal 2 is cited above, n 24.

^[35] Section 38 provides for general qualifications on qualified rights thus:

“(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that –

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary –

(i) taking account of the National Goals and Directives Principles and the Basic Social Obligations for the purpose of giving effect to the public interest in (A) defence; or (B) public safety; or (C) public order; or (D) public welfare; or (E) public health (including animal and plant health); or (F) the protection of children and persons under disability (whether legal or practical); or (G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must –

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.”

^[36] A comprehensive definition of public purposes is provided in s 2 of the Land Act 1996, although other statutes such as the Mining Act 1992 and the Oil and Gas 1998 also provide additional public purposes for which private land may be acquired.

^[37] See s 11 of the Constitution.

^[38] See D Chalmers, “Human Rights and What is Reasonably Justifiable in a Democratic Society”, (1975) 3 Melanesian Law Journal 92-102 for a discussion of expression “reasonably justifiable in a democratic society”. See also R W James, above n 9, at p 62; and see Supreme Court Application No 1/85 - Re Tom Ireeuw [1985] PNGLR 430.

^[39] D Chalmers, above n 38, at p 93.

^[40] See CPC Report, above n 18, at p 5/1/16.

^[41] Ibid.

^[42] See s 39 of the Constitution.

^[43] See D Chalmers, above n 38 at pp 100-101, where the author has drawn up some examples of the situations where the courts of Papua New Guinea could take the National Goals into account to decide whether an act restricting or regulating some fundamental right of an individual is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

^[44] See s 39(3) of the Constitution.

^[45] See above n 35, where the wording of s 38(2) is given.

^[46] Such a law must be passed by three-fifths majority of the total members of the National Parliament: see CPC Report, above n 18 at p 5/1/6 (para 28); D Chalmers, above n 38 at p 102.

^[47] Section 53(5) (a).

^[48] Emergency powers are set out under Part X of the Constitution.

^[49] See s 226 of the Constitution for the definition of the term “emergency”.

^[50] Section 53(5) (b) (i).

^[51] Section 53(5) (b) (ii).

^[52] Section 53(5) (b) (iii). If property is required for purposes connected with court proceedings, the property must be returned to the owner once the proceedings are over.

^[53] Section 53(6).

^[54] The substance of s 57 is set out below, at n 101.

^[55] The substance of s 58 is set out below, at n 98.

^[56] Section 53(5) (c).

^[57] Section 53(5) (d).

^[58] Section 53(5) (e).

^[59] [1971] PNGLR 110.

^[60] See s 53(5) (f).

^[61] See s 53(7) of the Constitution, which provides:

“Nothing in the preceding provisions of this section applies to or in relation to the property of any person who is not a citizen and the power to compulsorily take possession of, or to acquire an interest in, or right over, the property of any such person shall be as provided for by an Act of the Parliament”.

^[62] See s 56 of the Constitution, which provides that only citizens can acquire freehold land.

^[63] National Goal 3 of the Constitution provides for national sovereignty and self-reliance and declares: “We declare our third goal to be for Papua New Guinea to be politically and economically independent, and our economy basically self-reliant.”

^[64] See CPC Report, above n 18, Ch 5.

^[65] Report of the Commission of Inquiry into Land Matters (Port Moresby 1973) (hereafter “CILM Report”), Ch 4. In the current legislation, the term “State lease” is used instead of the previous term “Government lease” - see Part X of the Land Act 1996.

^[66] See CPC Report, above n 18, p 5/1/15.

^[67] CPC Report, above n 18 at p 5/1/14.

^[68] Ch 120 of the Revised Laws. This Act was repealed by the Investment Promotion Act 1992.

^[69] For the history of the Act, see above n 27.

^[70] See Sch 5 of the Act.

^[71] See s 37 of the Act.

^[72] Ch 346 of the Revised Laws.

^[73] See s 39 of the Investment Promotion Act 1992.

^[74] The principles of compensation were set out in s 18 of the revised Lands Acquisition Act (Ch 192). These principles of compensation were previously contained in s 19 of the pre-revised Lands Acquisition Act 1974.

^[75] See s 23 of the Land Act.

^[76] [1980] PNGLR 433.

^[77] See text to n 28 above, for the facts of the case and the decision of the National Court.

^[78] The decision of the Supreme Court is discussed in detail in Part F below.

^[79] See J S Fingleton, “Land Policy in Papua New Guinea”, in D Weisbrot, A Paliwala and A Sawyer (eds), Law and Social Change in Papua New Guinea (Butterworths, Sydney 1982), at pp 110-115; J Mugambwa and H Amankwah, Cases and Materials on Land Law and Policy in Papua New Guinea (Pacific Law Press, Hobart 1996), at p 71.

^[80] Special rights of citizens are set out under Part III, Division 3, Subdivision C of the Constitution and include s 50 (right to vote and stand for public office); s 51 (right to freedom of information); s 52 (right to freedom of movement); s 53 (protection from unjust deprivation of property); s 54 (special provision in relation to certain lands); s 55 (equality of citizens); and s 56 (other rights and privileges of citizens).

^[81] See CILM Report, above n 65, at pp 52-59.

^[82] Ch 359 of the Revised Laws.

^[83] By s 3 of the Act, forms of freehold ownership include absolute ownership, ownership in fee simple and equivalent forms of ownership (being the ownership of interests greater than estates for terms of years), whether legal or equitable, but do not include forms of customary land or interest therein.

^[84] Department of Lands and Surveys, Annual Report and Statement (Port Moresby 1983), at p 3.

^[85] See s 24.

^[86] See CILM Report, above n 65, at Recommendation 22.

^[87] See s 54 of the Constitution.

^[88] See R Crocombe, “Registration, Security and Productivity in the Pacific Islands: Experiences and Potentials”, in B Acquaye and R Crocombe (eds), Land Tenure and Rural Productivity in the Pacific Islands (UN Food and Agricultural Organisation, Rome 1984) pp 24-46 at p 33; P Larmour, “Customary Land Registration Policy in the Solomon Islands”, in B Acquaye and R Crocombe (eds), above this note, pp 68-96 at p 69.

^[89] See R Crocombe, above n 88, at p 34; P Larmour, above n 88, at p 70.

^[90] P Thomas, “Custom, Change and Constraints in Relation to Land Rights, Registration and Productivity in Western Samoa”, in B Acquaye and R Crocombe (eds), above n 88, pp 135-154 at p 136; A Seumanutafa, “Registration and Rural Productivity in Western Samoa”, in B Acquaye and R Crocombe (eds), above n 88, pp 129-134 at p 130.

^[91] See A Seumanutafa, above n 90, at p 131.

^[92] See R Crocombe, above n 88, at p 34.

^[93] See Bai v Morobe Provincial Government [1992] PNGLR 150. This case is discussed in Part E below.

^[94] [1981] PNGLR 396.

^[95] Section 53(4) provides:

“In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to (a) the forfeiture; or (b) the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession), of any right or interest in property.”

^[96] [1981] PNGLR 396, at 409.

^[97] Section 41(1) provides:

“Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case (a) is harsh or oppressive; or (b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or (c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is an unlawful act”.

For the meaning of the phrase “harsh and oppressive”, see Nowra No 8 Pty Ltd v Swokin [1993] PNGLR 498.

^[98] Section 58 provides for compensation to be paid for infringement of guaranteed rights and freedoms. The relevant provision is contained in sub-s (2) which provides:

“A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment) on the use of emergency powers in relation to internment) is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.”

^[99] [1984] PNGLR 174.

^[100] Ch 185 of the Revised Laws. Section 113 (“Unlawful Occupation of Certain Land”) provides:

“(1) A person who, without authority, occupies Government land or customary land is guilty of an offence.

Penalty: A fine not exceeding K400.

(2) A person who contravenes Subsection (1) and refuses to leave after receiving notice to quit from the Department Head or a District Officer may be forcibly ejected.”

This Act was repealed on 6 February 1997 by the present Land Act 1996.

^[101] Section 57 provides for enforcement of guaranteed rights and freedoms. Sub-section (1) provides:

“A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person which is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.”

^[102] [1992] PNGLR 150.

^[103] [1992] PNGLR 150 at 155-56.

^[104]See s 53(4) of the Constitution.

^[105] See above n 101.

^[106] See above n 98.

^[107] See G M S Muroa, above n 8.

^[108] See s 53(2), which provides:

“Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected”.