Land Reform Policies in Papua New Guinea: Successes and Failures of the Plantation Acquisition and Unused State Lands Redistribution Schemes [2003] MLJ 5; [2003-04] 29 MLJ 89 (1 January 2003)

Land Reform Policies in Papua New Guinea: Successes and Failures of the Plantation Acquisition and Unused State Lands Redistribution Schemes

George M S Muroa^[*]

Introduction

The Protectorate over Papua was declared on 06 November 1884 by Commodore Eskine and subsequently, the annexation was proclaimed by William MacGregor, the first Administrator, on 04 September 1888. On the other hand, Germany proclaimed New Guinea a colonial protectorate in 1884 annexed it on 17 May 1885. At the time of the proclamation of Protectorate and annexation, the early administrators pledged and assured the indigenous population to protect their persons and property, especially their land. Despite such pledges and assurances, there have been numerous instances where occupied lands were acquired using waste and vacant^[1] or ownerless^[2] declaration procedure without proper investigations and payment of compensation.^[3] These acquisitions have led to serious land shortages in many parts of the country, particularly in areas where large-scale acquisitions was concentrated.^[4] The situation has been exacerbated by the recent increase in population brought about by the improved health standard which has impacted on the average life span of the people and on the mortality rate throughout the country. The problems associated with land alienation during the colonial era have been a major concern to the successive post-1973 Governments^[5] (hereafter "National Government" or "Government") of Papua New Guinea (hereafter "PNG").

A lot of the lands acquired during the colonial administration was held by foreigners as freeholds on which plantations were established. This resulted in the domination of the country's plantation economy by foreigners. This situation led to increasing resentment among nationals, which was demonstrated by hostile reactions against foreign plantation owners, especially, during the period immediately preceding Independence. The resentment was further fuelled by the strongly held view that many of the acquisitions carried out during the colonial administration were unjust.^[6]

In order to deal with the land shortage and other problems associated with alienated lands outlined above, and, to prevent the perpetuation of the abuse of power in relation to land rights of Papua New Guineans, several new land reform measures have been instituted since Self-Government in 1973. Amongst those new measures instituted were: first, the land rights of Papua New Guineans are protected in the Constitution of the Independent State of Papua New Guinea (hereafter "Constitution") as an integral part of the human rights provisions; second, the Plantation Lands Redistribution Scheme (hereafter also "Plantation Acquisition Scheme" or "scheme") was introduced to compulsorily acquire plantation lands[7 ]owned by foreigners and redistribute them to the original customary owners of the plantation lands in the first instance or to those citizens who are short of land; and third, the Unused State Lands Redistribution Scheme was introduced to return or redistribute unutilised State lands to original customary landowners or to land short citizens generally with a view to dealing with the land shortage problems in the country. As mentioned, those are part of land reform measures instituted to address the land shortage problems faced by indigenous Papua New Guineans. However, the scope of this paper is limited to the examination of the latter two schemes, that is, the Plantation and Unused State Lands Redistribution Schemes and their successes and failures.

1. Redistricution of Plantation Lands Scheme

As noted, the policy on land acquisition during the colonial administration led to general land shortages in many parts of the country. It also created economic imbalance between indigenous people and foreigners in the country. One of the schemes adopted to redress these problems was the Plantation Acquisition Scheme. The objective of this scheme was to enable the National Government to acquire alienated lands, especially plantation lands owned by foreigners and redistribute them to indigenous Papua New Guineans, in particular, to the former customary landowners and/or to their descendants who are faced with land shortage in the first instance. In the event where the former customary owners and/or their descendants have sufficient land, the land can be redistributed to other land short people, especially those living on or near the plantation land. The Plantation Acquisition Scheme was adopted following recommendations of the Commission of Inquiry into Land Matters (hereafter "CILM") which was set up in 1973 by the first National Government of the then Chief Minister Michael Somare (hereafter "Somare Government") to investigate the problems relating to alienated lands and recommend to the Government effective means of resolving them. After the investigations, the CILM submitted its Final Report (hereafter "CILM Report") with various recommendations to the government. One of the recommendations was that the National Government should acquire and redistribute plantation lands owned by foreigners to Papua New Guineans in areas where there is serious land shortage for the purpose of subsistence gardening and/or economic development.^[8]

Following the CILM recommendation, the Somare Government made certain policy decisions in 1974. First, it was decided that transfer of existing plantations to expatriate interests should not be permitted except under the following conditions:

(a) where there are special circumstances making joint venture arrangements desirable with substantial equity for PNG interests, with provision for training and increasing equity over a period until the venture is wholly owned by Papua New Guineans; or

(b) where there are over-riding national or provincial interests which justify a sale, such as the importation of new technology, rapid exploitation of new markets, or any other special considerations which cannot be met from Papua New Guinean resources.^[9]

The Somare Government's decision in this instance was aimed at implementing the First and the Fifth Articles of the Eight Point Improvement Plan (hereafter "Eight Aims") of the Government.^{[10 ]}The Eight Aims were directed at securing economic self-reliance for PNG with emphasis on small-scale rural based ventures with maximum participation by Papua New Guineans. The localization of plantations was in accordance with the social and economic objectives of the Government and reflected the confidence in the ability of Papua New Guineans to develop the capacity to manage cash-crops without too much reliance on foreign capital and expertise.

Second, in June 1974, the Somare Government approved a Plantation (Alienated Lands) Acquisition Scheme. The aim of the scheme was to localise all expatriate plantations and those owned by bodies originally of expatriate origin. However, exceptions were made of tea plantations, nucleus oil palm and cattle estates because of the fact that they were new and heavily capitalised industries.^[11] The Government decided that, in areas of serious land shortage, such as the Gazelle Peninsula and the Duke of York Islands in the East New Britain Province, the plantations should be acquired outright in order to deal with the land shortage situation. Since the pressure on alienated land is greatest in areas of serious land shortage, alienated lands in these areas would be recovered for redistribution as soon as possible. However, those who are in need of land and seek the recovery of plantation land must take the initiative by approaching the Government for assistance. If the people are indeed in need of land, the Government will assist them to recover the plantation land.

In areas where there is no serious land shortage, however, acquisition or localisation of plantations should generally proceed gradually by the recovery of equity in the plantations until they are taken over and controlled by Papua New Guineans. This decision will ensure an equitable distribution of financial and manpower resources throughout different areas of the country and is in accordance with the general political, social and economic guidelines of the country.^[12] The Government will also assist people who are not short of land but living near the plantations to acquire the plantation lands^[13] if they show that they are well organised and have raised some money on their own for the purchase of shares in the plantations.^[14] The aim of acquiring plantation land by people in areas not affected by land shortage appears to be mainly for purposes of economic development. However, in some instances, the aim of acquiring of plantation land may be much more than economic. For instance, it was noted that the aims of acquiring Wurup and Alimp Plantations in Mount Hagen in the Western Highlands Province "were essentially to be economically self-sufficient, to be an example of national unity whereby different clans and tribes work together in nation-building to exercise social control through group solidarity, and to serve as a foundation for further development at grassroots level".^[15]

In order to give effect to the Plantation Acquisition Scheme, the Somare Government enacted four pieces of legislation in 1974. They were the Lands Acquisition (Development Purposes) Act (hereafter "Lands Acquisition Act"), the Land Redistribution Act, the Land Groups Act and the Land Trespass Act of 1974.^[16] The Lands Acquisition Act was designed to facilitate the acquisition of alienated lands, by agreement where possible or by compulsory process where necessary, for the purposes of making them available to Papua New Guineans who are short of land for subsistence farming or for engaging in economic development or for the resettlement of urban dwellers, and for other related purposes.^[17] Generally, the Government in this case wants to acquire land it requires, insofar as possible, by agreement with the power of compulsory acquisition being held in reserve for use only as a last resort as it usually causes ill-feelings amongst divested landowners. The Act affects alienated lands in any areas irrespective of whether or not there is a land shortage.^[18] The Land Redistribution Act was designed to provide fair redistribution of lands in accordance with people's need.^[19] It provides for the establishment of a distribution authority whose primary function it is to reach a permanent and effective agreement among the parties concerned about the method of redistribution.^[20] The basic aim of the Land Groups Act was to provide for the incorporation of customary and similar groups, and to allow them to acquire, hold, manage and deal with plantation lands in their own customary names.^[21] The Act, however, does not tell people who are to acquire plantation lands about how to form a group. They must do this in accordance with their own custom. Finally, the Land Trespass Act was enacted to prevent speculation on land intended for acquisition or redistribution. It gives the Government power to stop people from going onto land that is not yet acquired or to which they are not yet permitted to go.^[22] Generally, therefore, the aims of these series of enactments were to enable the Government to acquire and redistribute plantation lands in a smooth and orderly manner.

The plantation lands have been the subject of bitter complaints for many years as the original owners or their descendants have been deeply aggrieved at the manner in which their lands were acquired. As a result, this scheme was introduced to return plantation lands in areas of extreme land shortage and also to localise the plantation industry. The scheme was an ideal opportunity for people to settle their land shortage problems and to build up a strong base for future development. However, it was said that the success of this scheme depends largely on assistance and co-operation from the recipients of the plantation lands. This is absolutely necessary because often there are a lot of disputes and unco-operativeness on the part of the recipients which make it difficult for Government officers who try to ensure a smooth and orderly transfer of the plantations.^[23]

As noted earlier, the Plantation Acquisition Scheme was directly based upon the CILM recommendations calling for the introduction of a programme of systematic buying back of plantation lands where necessary, particularly in areas of extreme land shortage. The CILM argued that many groups in these areas were acutely short of land even for subsistence farming and/or deeply aggrieved at the manner in which their land was initially acquired by the colonial Administration. Attempts made by these groups to recover their lands through official and legal processes had not been very successful.^[24] At the time of Self-Government and Independence, there were some sixty (60) instances of properties being illegally occupied, either fully or partially and about forty (40) properties were being threatened with occupation by people who were traditional owners of the lands on which the plantations were established.^[25] Consequently, the CILM recommended compulsory acquisition of some plantation lands held by foreigners in such areas immediately and their redistribution to the descendants of the original owners who are victims of land shortage. In cases where, inter alia, the original owners and/or their descendants already had ample land, such lands to be redistributed to the people who needed them in land short areas.^[26]

The CILM had warned, however, that although alienated lands must be recovered for land-short nationals, care had to be taken that it did not lead to too much private ownership based on ancient claims.^[27] For this reason, the National Government had to retain or acquire title to land for public purposes and for leasing to those who had greater need for it and would use it. Such action is necessary in order to avoid creating a situation where many Papua New Guinean individuals and groups would become landlords and that colonial exploitation would be replaced by exploitation of one class of Papua New Guineans by another.

The implementation of the Plantation Acquisition Scheme in this case entailed two aspects. Firstly, the acquisition of foreign-owned plantation lands for land short Papua New Guineans living on or near the land for the purposes of subsistence gardening and/or economic development. The scheme was aimed at benefiting the former customary owners of the plantation lands in the first instance but, in the event where such persons had ample land, any other persons who were in need of land could also benefit under the scheme. Secondly, the eventual localisation of all foreign-owned plantations in the country.

(a) Critique of the Scheme

Despite the objectives of the scheme in terms of dealing with the land shortage problems and redressing economic imbalance in the country by assisting indigenous Papua New Guineans to participate in and benefit from the economic development of the country, the scheme has attracted a number of criticisms.

(i) Lack of Capital and Management Skills by Recipients

One criticism of the scheme was that, it was not necessary to recover all plantation lands from foreign ownership because the beneficiaries of the scheme would have neither the capital necessary to acquire nor the management capabilities to effectively and efficiently maintain the plantations as going concerns.^[28] In other words, if all plantations were transferred to Papua New Guinean ownership, land productivity might fall. The decline in output would reduce the national income and could impair the balance of payments of the country.

To counter the problems envisaged in this criticism, the Government has incorporated a number of features in the scheme designed to minimise any decline in productivity of the plantations transferred to Papua New Guinean operators. Firstly, except in cases of serious land shortage, the Government would not transfer the plantations to the new owners until the people concerned had organised and incorporated themselves as business entities in accordance with the Land Groups Act to acquire, hold, manage and generally deal with the plantation lands. Secondly, the Government would withhold any transfer of interests under the scheme until the purchase price for those interests and the Government's repayment terms had been accepted by the new owners. For instance, usually the Government would require the people to pay fifty percent (50%) of the purchase price before it could grant them the plantation lands.^[29] The balance would then be repaid by the group from the profits of the plantations over the next few years. Thirdly, the Government would withhold any transfer of ownership in the plantation lands until payment had been made in full. It was anticipated that, as the prospect of recovering ownership and title had been the greatest attraction to people in many parts of the country, such an approach would greatly induce them to maintain production and finalise repayments.^[30] In addition to these measures, the National Plantation Management agency was established in 1977 to give advise, assistance and training to the recipients in the management of the plantations until the original costs had been repaid.^[31] Although these features were designed to minimise any decline in production of the redistributed plantations, it could be argued that the land needs of Papua New Guineans must be properly met, as the scheme was introduced as a land reform measure rather than an economic reform. The scheme was necessary to stop the system that had allowed a small number of foreigners to acquire title to large areas of some of the best land in the country.

(ii) Discourage Foreign Owners from Maintaining Plantations

Another criticism was centred on the potential impact of the scheme by discouraging foreign owners from maintaining their plantations at a going concern until take-over by Papua New Guineans under the scheme. It was argued that the Plantation Acquisition Scheme would discourage foreign owners from maintaining their plantations at a productive level until take-over or acquisition takes place, if they are unsure about the future of their plantations.

A feature designed to prevent the above situation occurring was that valuation of plantations and the subsequent assessment of compensation payable thereof was to be calculated solely on the basis of remaining income-earning capacity of the property in question and not on the basis of market value.^[32] This feature is intended to indirectly compel the expatriate owners to maintain their plantations at a productive level until acquisition was effected. It was anticipated that this would have one of the greatest effects in gaining the co-operation of the plantation owners in maintaining the plantations at a going concern until take-over took place.^[33]

(iii) Loss of Employment and Income of Plantation Workers

A further criticism was that the scheme would affect employment and income earning opportunities for people from remote areas of the country. Usually a large percent of plantation labour was drawn from areas which were generally least developed such as the Highlands. At the time of Self-Government in 1973, approximately 50,000 workers were employed in about 1,200 plantations throughout the country.[34 ]Many of these labourers lived on the plantations, sometimes with their families, for many years as casual employees after their initial contract expired. Where plantations were localised gradually by a share takeover, there might probably be little immediate displacement of plantation labour. However, where plantations were redistributed to people in areas of serious land shortage, it was likely that there would be huge displacement of labour. When most of the displaced workers returned to their respective areas, they might not be able to find employment to support themselves and their families. Their rights to cultivate customary land might have been taken over by other members of their customary groups in their long absence. Generally, this would broaden the existing gap between better-off areas where plantations were located and less better-off areas where there were no plantations.

The Government, however, would make every possible attempt to accommodate the interests of displaced plantation labourers in the redistribution programme. For instance, under section 7 of the Land Redistribution Act, the Minister, inter alia, could declare that such persons were "people concerned" for the purposes of redistribution of land or alternatively, he could reserve part of the land intended for redistribution for the purposes of resettlement of such persons.^[35] If an attempt to accommodate the interests of the displaced labourers was not possible, they would be returned to their original home area or resettled elsewhere. However, the former option was feasible insofar as there was no land pressure in the original home area of the labourers. If there was pressure on land, the latter option appears to be an ideal alternative.

In addition, it was the policy of the Government to allocate more funds to develop less developed areas and less funds on the well developed areas in order to ensure maximum participation by the people in all areas of the country. It was expected that, with the high priority which the Government placed on development in the least developed areas under its rural improvement programmes, the increased opportunities to earn income at home in labour intensive capital works projects would absorb a significant number of displaced plantation labourers.^[36] This would prevent the disparity in incomes between nationals, but more importantly, it was in accord with the spirit of Goal 2 of the National Goals and Directive principles of the Constitution, which calls for all citizens to have equal opportunity to participate in, and benefit from, the development of the country.^[37]

(b) A Set-Back to the Plantation Acquisition Scheme

The Plantation Acquisition Scheme has suffered at least one major set-back since its inception. In January 1982, the Chan-Okuk Government abolished the scheme and retrenched or redeployed the staff previously employed in the Alienated Land Redistribution Branch (hereafter "ALRB") of the Department of Lands as a cost-saving measure. The ALRB was responsible for the implementation and administration of the scheme. However, it was re-instated in early November of the same year by the Somare Government when it returned to power after the June 1982 general election. The decision to re-instate the scheme was not an easy one to make in view of the over-all Government policy to rationalise and thus reduce the size of the Public Service as a cost-saving exercise. The over-riding reason, however, for the re-instatement of the scheme was that, cost-saving in this case was purely a short term measure, in as far as thirty four (34) of the plantations managed by the business groups still owed K1,183,949 in loans to the State. This amount remained uncollected since there was no alternative machinery established, in place of the ALRB, to collect the debts.^[38] It appears that, although the programme was an important measure to deal with land shortage and other problems related to alienated lands in the country, at least one National Government considered the scheme unnecessary and too costly to maintain.

(c) Successes and Failures of the Scheme

As indicated in (i) below, the Plantation Acquisition Scheme has, to some extent, succeeded in achieving some of its objectives. For instance, some plantation lands have been acquired and redistributed to former owners of the plantation lands or their descendants for subsistence and/or economic development purposes. However, the scheme has also suffered from failures largely due to inability of those who have been given plantation lands, especially for economic development purposes, to operate them successfully.

(i) Success of the Scheme

At the time of Self-Government in 1973, there were about 1,200 plantations owned and operated by expatriates. The Plantation Acquisition Scheme went into full gear almost immediately from its inception.^[39] Since the incorporation of the scheme, about eighty four (84) plantations have been acquired and redistributed to Papua New Guineans at a total cost of K7,239,504, out of which K4,668,306 was the total outstanding debts still owed to the National Government.^[40] Out of the eighty four (84) plantations acquired under the scheme, thirty two (32) of them are said to be managed by the National Plantation Management Agency and another thirty four (34) of them are managed by business groups with assistance from the ALRB. The remaining eighteen (18) of the plantations are now fully owned and operated by business groups.^[41]

The redistributed plantations have been operated successfully, either by the land groups or the National Plantation Management Agency on behalf of the recipients. In at least eighteen (18) cases, the costs of the plantations have been completely repaid by the new owners. In many other cases, a considerable proportion of the costs have been paid off, while others very little or nothing has been paid. In any event, the new owners are trying hard to develop plantations that have been run down, but need assistance in the form of both capital equipment and manpower from extension services.^[42] Furthermore, despite any actual or perceived problems which may have affected the effectiveness and efficiency of the scheme, if one looks at the scheme as an attempt at land reform, it can be seen that it has achieved some of its original aims. For instance, it has achieved its objective of returning land to land short people for subsistence and/or economic development purposes by encouraging Papua New Guinean participation in the plantation economy and promoting greater equality, consistent with the National Goals of the Constitution.^[43] It has succeeded in giving land to those who needed it, whether it be the original customary owners or other land short Papua New Guineans.

Given that there are about 1,116 plantations still in foreign ownership, the number of plantation lands acquired so far, since the incorporation of the scheme, represented only a very small percentage of the total plantation establishments in the country. It is difficult to determine accurately whether or not the scheme has really achieved its intended objectives because the majority of the plantation lands are still in expatriate hands. It is important to bear in mind that the discussions in this case as to the successes or failures of the scheme are based on the performance of only a very small percentage of the total plantation economy in the country. There are still demands for plantation lands to be returned to people for subsistence and/or economic development purposes.^[44] To the extent that the number of plantation lands acquired and redistributed under the scheme represented a very small percentage of the plantations in the country and that there are still demands for the return of the plantation lands, it is submitted that the scheme has limited success in terms of achieving its overall objectives. This proposition is supported by the argument that, from public policy standpoint, the returning of only 84 plantations out of the total 1,200 foreign-owned plantation lands has not been a reasonable public policy result

(ii) Loss of Momentum or Failure of the Scheme

Since about mid 1980, the scheme apparently lost its momentum. There has been a general slowing down of the scheme with the emphasis on completing negotiations for transfers that have already been started. Nonetheless, there is a demand for redistribution, especially in areas of population pressure and land shortage such as the Gazelle Peninsula and parts of the Highlands.^[45]

The loss of momentum of the scheme was partly due to lack of financial and technical support available to the people who have received the plantations to maintain them at a going concern. More fundamentally, it was due to lack of commitment on the part of the National Government to ensure that the momentum of the scheme was maintained at an acceptable level to ensure the desired objectives, for which the scheme was established, are attained. The loss of momentum was also attributed to the recommendation of the Committee of Review into the Plantation Redistribution Scheme (hereafter also "Committee") which was established in August 1979 to review the operations of the scheme. The Committee recommended that the scheme should be abolished. The Committee's recommendation was based on the premise that most of the plantations which were redistributed under the scheme have been deteriorated due to the lack of replanting, and poor standard of husbandry and maintenance. The deteriorating state of the plantations was due to the fact that the recipients of the plantations were unable to borrow money to develop and maintain them at a going concern. The Committee suggested that the transfer of plantations should be conducted on a freely competitive basis without coercion, and as far as possible, national groups should be assisted to buy valuable and fully maintained properties. According to the Committee, there should be a distinction made between expatriate owners willing to sell their plantation lands and those who are unwilling to sell and that the latter should not be forced to sell if their plantations were being well maintained. Instead, Papua New Guineans should be encouraged to be involved by purchasing shares in them.^[46]

(c) Factors Attributing to Failure of the Scheme

One reason for the loss of momentum and the slowing down of the scheme was the fact that the scheme did not receive sufficient funding support from the National Government. Funding support necessary not only to maintain the plantations which have already been redistributed under the scheme effectively and efficiently, but also to assist people to acquire new plantations, where appropriate. Expectation of financial assistance from the Australian Government, which everybody believed was responsible for the problems associated with land shortage in the country, did not eventuate. In addition, some sectors of the Government were beginning to have second thoughts about the wisdom of redistribution of plantation lands. This was because, as discussed earlier, many of the redistributed plantations were not performing according to expectations; indeed, some were on the verge of collapsing.^[47] The new owners of the plantations redistributed under the scheme have not maintained the plantations at a going concern to the extent that neither could the Government recover the moneys expended in their acquisition nor could the plantations make any effective contribution to the economic development of the country hence contribute to the national wealth, which may have discouraged the Government from continuing to support the scheme. Furthermore, the Plantation Acquisition Scheme has suffered from bad public relations with publicity given to the problems rather than the achievements. Some plantations have been neglected and there have been disputes among different customary groups as to who are the rightful owners. Moreover, there have been instances of political interference in some which affect their operations.

As noted above, the Committee of Review into the Plantation Redistribution Scheme was generally critical of the working of the scheme and expressed concern at the general deterioration of the plantations due to the lack of replanting, and poor standards of husbandry and maintenance. One main reason for the general deterioration of the plantations was the lack of availability of financial support to which the new plantation owners under the scheme can have excess to in order to acquire the funds necessary to develop and maintain the plantations. The Committee was, therefore, particularly very critical of the financing of the scheme and noted with concern that the beneficiaries were unable to obtain needed finance to develop and maintain plantations at a going concern. According to the Committee, the four pieces of legislation concerned with redistribution should be repealed as they were too complex and difficult to work.^[48] It recommended that the transfer of plantations should be conducted on a freely competitive basis without coercion and that those expatriate plantation owners who were unwilling to sell their plantations should be allowed to keep them to generate income for the country.^[49]

Given the criticisms of the Committee of Review of the Plantation Acquisition Scheme, any blame for any actual or perceived failures cannot be placed squarely on the owners or recipients of the plantations under the scheme. In most instances, the ability of the new owners to improve and maintain their plantations at a productive level was dependent upon financial and other support from the Government. That support was not forthcoming because there was no commitment on the part of the Government to ensure continuation of the scheme. It is fair to conclude, therefore, that any actual or perceived failures of the scheme was largely due to the Government’s lack of commitment to provide the necessary support, financial, technical, or otherwise to enable the new owners to successfully operate the plantations, not only to benefit themselves but also to contribute to the national wealth.

Finally, it should be noted that there appears to be no formal abolishment of the programme following the recommendation of the Committee of Review into the scheme despite the fact that three of the legislation enacted to give effect to the scheme were repealed in 1996. As such, the scheme is either dormant for now and might be revived at a later date or is allowed to die a natural death. In any event, given the general poor performance of the plantations already redistributed under the scheme, notwithstanding that those plantations represent a very small percentage of the total plantation establishments in the country; it appears that the Government is not convinced that it is in the best interest of the country to pursue the scheme further.

1. Redistribution of Unused State Lands[50]

This was another scheme adopted by the Somare Government to deal with the problems of land shortage in the country. The objective of the scheme was to redistribute unutilised State lands (hereafter "Unused State Lands") for land short Papua New Guineans generally. The adoption of this scheme also follows the CILM recommendation that Unused State Lands be returned to the original customary owners or to people in land short areas.^[51] The benefactors of this policy would not necessarily be the former traditional owners, especially in a case where the original owners already have ample land, though it may be the case in many instances. This is in conformity with National Goal 2 of the Constitution which requires that those people who experienced emotional and material disadvantages, as a result of the loss of their customary land, should be given an opportunity to gain a fair share of the social and economic development arising from the alienation of their lands. They ought, therefore, to have a claim to such lands.

There is some degree of uncertainty as to the practicality of redistributing land to people, other than former customary owners, who are facing land shortage problems. For instance, when the group, which is to get the subject land under the scheme has no historical connection with the land and the original owners are hostile to such an arrangement, it is doubtful as to how far this ideal is practicable. That is, whether it is practicable to proceed with the redistribution. It is submitted that, in such instances, the constitutional precept would be best achieved by declaring such lands as national land required for resettlement of land short Papua New Guineans and reserving them for their use. Alternatively, a compromise arrangement may be sought whereby the rights of the original customary owners and/or their descendants are recognised but provide for subsidiary rights of occupancy to be given to the land short people such as a lease from the customary owners.^[52]

(a) Disposition of Land Acquired by Compulsory Process

Disposition of lands under this scheme includes, inter alia, those acquired by compulsory acquisition procedure. Where the Government decides to dispose of Unused State Lands acquired by compulsory process, it should take into account the principles of disposition in section 48 of the current Land Act 1996. The principles of disposition in section 48 have two aspects. First, section 48 deals with disposition of lands previously acquired from non-customary owners and second, it deals with disposition of lands acquired from customary owners.

(i) Disposition of Land Acquired from Non-Customary Owners

The principles of disposition of Unused State Lands have been incorporated in successive legislation in PNG. For instance, by section 18 of the Land Act (chapter 185), where the subject land was leasehold or freehold land prior to its acquisition and the Government proposes to grant a leasehold or freehold interest over the land, rather than using it for some other public purpose within seven (7) years of its acquisition thereof, it should give former owners the right of first refusal.^[53] Where the land in question was a State lease granted by the National Government or colonial Administration prior to its acquisition, it should first be offered to the former lessee. Similarly, where the land proposed to be disposed of was a freehold land prior to it acquisition, it should first be offered to the original owner of that land. The Land Ordinance 1911 made provisions for disposition of land as leasehold or freehold. However, the Ordinance made no provisions for the land to be first offered to the original owners or otherwise in similar circumstances. Similarly, there are no provisions under the present Land Act 1996 providing for land to be first offered to the original owners. By section 48(1) of the Act, the land in this case can be dealt with in all respects as other Government land, even if the original purpose for which land was acquired no longer exists. The rationale for this proposition is that once land is acquired, it becomes Government land, freed and discharged from all encumbrances and, as such, it can be dealt with like any other Government land. It appears that the former proprietor does not have any remedy, legal or equitable, against the Government if the latter decided not to give the former first right of refusal.

Given the fact that, under the Land Act 1996, there is no strict rule that land in this case must first be offered to the former owners, it can be disposed of or dealt with in any way without being first offered to the former owners. It is assumed, in this case, that people who are experiencing land shortage in the country such as urban dwellers squatting on either customary or government land, will be the first ones to receive such lands. This assumption recognises the principle that once the notice of acquisition is given, the legal estate in the subject land is effectively vested in the State freed and discharged from all encumbrances.^[54] The land can, therefore, be dealt with in all respects as any Government lands if it is no longer required for a public purpose stated in the acquisition order or the purpose is not immediately available. Thus, it may be used for a purpose other than that for which it was initially acquired, including disposition to any Papua New Guineans in areas of extreme land shortage. This again conforms with National Goal 2 of the Constitution which requires the resources of the country to be equitably distributed throughout the country.

(ii) Disposition of Land Acquired from Customary Owners

Another aspect of disposition is in relation to land which, at the time of acquisition, was customary land. By section 48(2) of the Land Act 1996, where the whole or part thereof of such land is proposed to be disposed of, it should be declared to be customary land again and allowed to return to the former customary owners under section 133 of the Act. However, disposition in this case is not possible unless firstly, the subject land is no longer required for the purpose for which it was acquired^[55] and secondly, within seven (7) years after the date of acquisition, it is proposed to grant a State lease for a purpose other than that for which the land was acquired.^[56] However, whether the land is declared under section 133 of the Act or not is subject to whether it is practicable to do so. The Minister for Lands is given discretion to decide whether it is desirable for such a declaration to be made under section 133 of the Act. Hence, if the Minister, in his opinion, thinks it is undesirable or impracticable to dispose of land using the power under section 133, it can be disposed of in all respects as any other Government land.

Section 133 of the Land Act provides for declaration of any Government or trust land to be customary land and thereupon the land must be deemed, for all purposes, to be customary land. Once land is declared under section 133, it must, for the purpose of determining its ownership, be deemed always to have been customary land.^[57] The land in this case is disposed of as customary land and not as a leasehold or freehold estate. The effect of the declaration under section 133 is that the Government should divest itself of the ownership of the land. Thereupon, the land is deemed for all purposes to be customary land and subject to customary law. The CILM recommended that if land which is acquired by compulsory process for a public purpose is not used for the purpose for which it was acquired within ten (10) years as from the date of its acquisition, the land should revert to the original right-holders without any obligation on them to return the purchase price.^[58] The Land Redistribution Act provided for a machinery and the procedure for identifying the original customary owners and distributing, in the event of disposition or proposed disposition of Unused State Lands.

The declaration under section 133 of the reserve lands may be described as an unsatisfactory way to deal with the land for two reasons. First, the land in question has already had a form of Government title and, as such, it should be dealt with in any way. Secondly, it is unfair to people who cannot show traditional claims or rights in the reserved land but have settled on it such as squatters in urban centres squatting on Government or customary land. The CILM recommended that all reserves or reserve lands, which have not been already relinquished by the Government, be redistributed by lease or registered in favour of the people who live on or near them in order to protect the interests of these people.^[59]

The land to be disposed of as customary land under section 133 is not simply confined to land acquired by compulsory process; it can be any Unused State Lands. It can be any Government or trust lands generally which are not being used or required for any purposes at all. Hence it may include land acquired by agreement, by declaration as waste and vacant or by confiscation as well as by compulsory process. Chatterton categorised the land to be returned to include land acquired by waste and vacant or ownerless declarations, Government land which has, since its acquisition, remained unutilised either by the Government itself or by lessees to whom it has been leased and developed land which has been acquired or resumed with compensation for redistribution to indigenous people in cases where land is in short supply.^[60]

Land previously acquired by compulsory process is not always disposed of as customary land by declaration under section 133. In particular, land cannot be disposed of as customary land under section 133 where substantial improvements have been made to the subject land since its acquisition,^[61] or where the original owners already have ample land,^[62] or where the land was initially acquired as urban land^[63] or where the land was acquired under section 9 of the Land (Underdeveloped Freehold) Act.^[64] The Government is not, therefore, bound by the provisions of section 48 of the Land Act 1996 on the principles of disposition of land to customary owners. In other words, the Government can dispose of the land in any way or to whoever it sees fit, notwithstanding that the subject land was originally acquired from customary owners. This may include naming a particular individual or group to be the owner or owners of that land and thereupon the individual or group so named will be deemed conclusively for all purposes to be the owner or owners of the land by custom.^[65] In the absence of such a disposition, however, the land in question vests in the descendants of the original owners under the relevant customary tenure.

(b) Disposition of Land Acquired by Waste and Vacant Declarations

Disposition of lands under the Unused State Lands Redistribution Scheme also includes lands acquired by waste and vacant or ownerless declaration. The disposition of land acquired by declaration as State land^[66] (or previously waste and vacant or ownerless) to customary claimants, might pose serious problems. One way of dealing with the land shortage situation is to return all the undeveloped land acquired by declarations as waste and vacant or ownerless to the descendants of the people claiming to be traditional right-holders. In many cases, especially where such traditional right-holders have never stopped using the land, it would provide a simple and just solution. In other cases, however, attempts to return the land would invite serious disputes among various clans claiming to be the original owners. The latter is true where the people purporting to be traditional right-holders have stopped using the land after its acquisition. The CILM recommended that where there are several claimants to land, all else being equal, preference be given to those who have little land and are in need of it, and those who will live on it and use it rather than leaving it idle.^[67]

The CILM objected to returning undeveloped waste and vacant or ownerless land to the people purporting to be traditional right-holders or leasing it to settlers from other provinces. Instead, it recommended that such land be vested in the Provincial Land Control Boards. This should include land granted in freehold and leasehold titles which has not been developed. The Board would determine the needs of the villagers who live on or near the land, taking into account the population of the various settlements, the amount of other land they have, and their plans for using the land. It would then divide and distribute the land in accordance with the needs of the people. If, however, the villagers do not accept the Board's decision or where the Board is satisfied that the needs of the villagers who live on or near the land are fully met, the land could be leased to land-short settlers from inside or outside the province.^[68] Alternatively, it has been suggested that reserves be created on such lands for common use by all residents of a village or for community purposes or for use by an institution such as a school or church.^[69] If the reserve is no longer used for the intended purposes or if the agreed period expires, the reserve land reverts to the respective owners - to the Government or to the customary owners, as the case may be. This approach should be an alternative to returning the land to any particular group or person including those claiming to be original customary owners.

The disposition of land to individuals or groups other than customary owners under section 133 is in conformity with the CILM recommendation. The Commission recommended that the Government should adopt a policy where land should be given to those who need it and would use it. The recommendation is based on the premise that both equality and development are best attained by giving the land to people who need it and would work it.^[70] This is in accord with National Goal 2 of the Constitution which requires the resources of the country to be distributed equally to all sections of the community for all citizens to have equal opportunities to participate in and benefit from the development of the country.^[71] In pursuit of these policies, the Government should return Unused State Lands to people who are suffering from land shortage rather than declaring it under section 133 to be customary land. This is because Government land is a national asset which can be used to increase production and national income. The holders of title to land redistributed under the scheme, therefore, must make good use of it or give way to those with greater need and ability to use it. This reason of public interest modifies a simple policy of returning Unused State Lands to the descendants of traditional owners and would have the effect of promoting greater mobility and inter-group mixing among the people. This would in turn foster a sense of belonging to the wider national community, if people from different parts of the country are allowed to take up rights in Unused State Lands.

(c) Disposition of Land as Freehold and Leasehold

Aside from disposition by declaration as customary land under section 133 of the Land Act 1996 and allow it to revert to the original customary owners or their descendants or to land short Papua New Guineans, land can also be disposed of as freeholds and leaseholds. A grantee of a freehold land holds the land, the subject of the grant, in perpetuity whereas, a leaseholder holds his interest in terms of years or for a limited term only usually as stipulated under a lease agreement which confers the interest.

(i) Disposition of Land as Freehold

Disposition of land otherwise than to original owners may include disposition as freehold land. Although, there is provision for disposition as leaseholds in the current Land Act 1996, there is no provision authorising the Government to sell land as freeholds.^[72] If the Government, however, decides to dispose of the land as freeholds, it will only have to be to citizens. This is because section 56 of the Constitution makes the right to the acquisition of freehold land as a special right of citizens and allows only citizens to acquire freehold interest in land.^[73] Section 56 of the Constitution, therefore, prevents non-citizens from acquiring freeholds. The implication of this provision is that a non-citizen can retain any freehold land he had acquired before Independence day, unless he has converted it in accordance with the provisions of the Land (Ownership of Freeholds) Act (chapter 359) into a State lease, but is prevented by section 56 from acquiring new freeholds after that date. The CILM 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.^[74] However, the Constitution accords protection to freeholds held by citizens^[75] and prohibits non-citizens from acquiring new freeholds, which represents a significant departure from the CILM recommendation.

The Land (Ownership of Freeholds) Act was enacted to give effect to the provision of the Constitution prohibiting acquisition of freehold interests by non-citizens. The Act defines freehold ownership for purposes of section 56 of the Constitution and provides for non-citizen freeholders to voluntarily surrender or convert their freehold titles to the State and, in their stead, obtain substituted State leases of 99 years.^[76] It was proposed in the early 1980's that a new legislation would be introduced to amalgamate all existing land legislation in which a provision will be inserted to allow for mandatory conversion of freehold land into leasehold land.^[77] Although, the present consolidated Land Act was enacted in 1996, no such provision has been included in the Act providing for mandatory conversion of freeholds into leaseholds. In the circumstances, it could be assumed that there is no urgent need, at least for the moment, to require mandatory conversion of freeholds into State leases.

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.^[78] This is in line with the CILM recommendation^[79] in which the Commission argued that a conversion of freeholds to Government leaseholds is no real deprivation of property. This assumption has no basis in law because conversion of perpetual interests into those of fixed term of years is a deprivation of property for which a foreign private property owner is entitled to be compensated. However, as non-citizens have no constitutional property protection, a conversion legislation which makes no provision for compensation is still a valid law and enforceable. This proposition appears to be supported by section 54 of the Constitution which provides 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. Notwithstanding this, the issue of whether the conversion of freeholds into Government leaseholds is a deprivation of property for which compensation is payable, is yet to be argued before the Supreme Court. Thus, unless the issue is judicially decided, the Land (Ownership of Freeholds) Act is a valid law and enforceable as it only seeks to regulate the interests of non-citizens in land which is permitted under section 54 of the Constitution.

(ii) Disposition of Land as Leasehold

Land may also be disposed of by grant as State leases. A State lease is defined in section 2 of the current Land Act 1996 to mean "a lease from the State granted under or continued in forced by this Act".^[80] The term lease itself is not defined in any statute. It is implied, however, in the Land Act that a lease is a grant of land for a specified period not exceeding 99 years in consideration of the payment of rent.[81 ]Although, the payment of rent is an essential incident of the State lease, no rent is payable upon the grant of a mission lease.^[82]

There have always been legislation in PNG providing for leases to be granted of Government lands.^[83] The current Land Act 1996 empowers the Minister to grant State leases of any Government lands for various purposes.^[84] For instance, the Minister may grant agricultural, pastoral, business, residential and mission leases or leases of Government-owned buildings or special purposes and urban development leases.^[85] The Minister's power to grant State leases includes land acquired under the repealed Lands Acquisition Act.^[86]

1. Conclusion
   

The alienation of land during the colonial era has caused difficult problems for PNG. Firstly, it has led to serious land shortages in many parts of the country and created insecurity amongst customary landowners. Secondly, it has led to the domination of the country's economy, particularly plantation economy, by foreigners. In the case of the former, the land shortage problem was not only felt in areas where colonial land acquisition took place, but also in many different parts of the country where no single acquisition ever took place. Land shortage in these areas has been caused by recent population increase due to improved health services which has impacted on mortality rate and average life span of the people throughout the country. Consequently, demands were made by people from all over the country for the National Government to address their problems immediately. Some of them started moving into and occupying expatriate owned properties illegally on speculations that their occupation would justify the National Government acquiring and redistributing to them properties the subject of the illegal occupation.

The two schemes under consideration went into full swing immediately upon their inceptions. In the case of the plantation lands acquisition scheme, although some lands were acquired and redistributed during the period when the scheme was in full swing, these represented only a very small percentage of the total plantation establishments in the country. The majority of the plantations, therefore, are still in the expatriate ownership. To that extent, the scheme has limited success in terms of achieving its overall objectives. This is true insofar as the scheme is viewed in the context of economic reforms. If it is, however, viewed in the context of land reform, which was the principal object of the scheme, then the scheme has some success in returning some lands to those who needed them to deal with the land shortage and other related problems. There are still demands for plantation lands to be returned to people for subsistence and/or economic development purposes. However, there has been a lack of political support to keep the scheme going and consequently, the scheme started losing its momentum since in or about mid 1980. As in the case of the plantation lands acquisition scheme, the unused State lands redistribution scheme also went into full swing soon after its introduction but has also lost its momentum in recent years. The loss of momentum may be attributed to a number of factors. First, it was due lack of commitment and funding support from successive National Governments in recent years to pursue the scheme further. There has been no official explanation offered by the Government for failure to support the scheme or why the scheme should not be pursued any further. In the absence of any official explanation, the assumption is that other competing interests have taken precedence over the scheme and therefore the scheme is no longer a priority concern. Second, it may be that the scheme has achieved its intended objectives and that there is no longer a need to pursue it further. Alternatively, it may be that the Government has exhausted all the lands available for redistribution under the scheme or if there are, they are to be held in reserve for future development purposes.

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

^[1] This was a procedure used by the British and subsequently Australian Administrations in the former British New Guinea (Papua).

^[2] This procedure was used by the German Administration in the former German New Guinea (New Guinea).

^[3] George M S Muroa, “Recognition of Indigenous Land Rights: A Papua New Guinean Experience”, (1994) 22 Melanesian Law Journal (hereafter “MLJ”) pp. 81-101 at 92-3.

^[4] For instance, in Gazelle Peninsular area and Duke of York Islands in the East New Britain Province most of the arable land was acquired, see id, at 98.

[5] Papua New Guinea attained Self-Government in 1973 and Independence in 1975.

[6] See Papua New Guinea's Proposals to Australia for a Joint Scheme for Settlement of Alienated Land Problems (hereafter "Joint Scheme for Settlement of Alienated Land Problems"), a classified document, (Port Moresby 1974) at 1. See also J S Fingleton, "Land Policy in PNG" in D Weisbrot, A Paliwala and A Sawyer (ed.) Law and Social Change in PNG, Butterworth, (Sydney 1982) at 110-115; The Commission of Inquiry Land Matters Report (Port Moresby 1973) Ch 4.

[7 ] Alienated land is a term used to refer to that category of land which has been taken away from traditional system of land tenure and is held by the Government or by private individuals or companies. It accounts for a mere 3 per cent of the total land in the country. However, it represents some of the best lands in the country. Its use and dispositions are regulated by the common law and statute.

[8] See the Commission of Inquiry intoLand Matters Final Report , Port Moresby, 1973 Ch 4.

[9] See Joint Scheme for Settlement of Alienated Land Problems, op.cit. at 2.

[10 ] Articles One (1) and Five (5) of the Eight Aims are set out in the CPC Report, op.cit. at 2/1-2/2. They are:

1. “A rapid increase in the proportion of the economy under the control of Papua New Guineans, individuals and groups, and in the proportion of personal and property income that goes to PNG”; and

5. “A more self-reliant economy, less dependent for its needs on imported goods and services and better able to meet the needs of its people through local production”.

[11] See Joint Scheme for Settlement of Alienated Land Problems, op.cit. at 2; J S Fingleton, op.cit. at 111-115.

[12] These general guidelines are contained in the National Goals and Directive Principles of the Constitution at 2-5.

[13] The acquisition of land involved in the case of Gumanch Plantations Pty Ltd v. Thomas Kavali & Or Unreported and unnumbered judgement, 20/09/80; W.S. No. 830 of 1980 demonstrates the acquisition of plantation land for purposes of redistribution to people living near the plantation lands rather for the purpose of dealing with land shortage situation.

[14] Usually people are required to raise about ten percent (10%) of the total value of the property in question for the purpose of deposit on a plantation. A good example is afforded by the people in Bainings and Kerevat areas of the East New Britain Province and in Mount Hagen area of the Western Highlands Province where the people concerned were not short of land but were well organised and had raised some money of their own before seeking Government assistance. See J Kaipu, "The Land Redistribution Scheme at Work in the Gazelle" (1976) 7 Administration for Development Journal at 69-77; T Mark, "Acquisition and Redistribution of Alienated Land: A Study in Access" (1975) 2 Yagl-Ambu 1 at 65-70.

[15] Ibid.

[16] All the Acts except the Land Groups Act were repealed by the consolidated Land Act 1996.

[17] See s 1, Lands Acquisition Act.

[18] See Joint Scheme for Settlement of Alienated Land Problems, op. cit. at 5. Acquisition of plantation lands in Gumanch Plantations Pty Ltd v. Thomas Kavali & Or and Minister for Lands v. Frame [1980] PNGLR 433 was effected under the Lands Acquisition Act and in areas not affected by land shortage.

[19] See s 1, Land Redistribution Act.

[20] See s 12.

[21] See s 1, Land Groups Act.

[22] See s 1, Land Trespass Act.

[23] See J Kaipu, op. cit. at 76.

[24] See the CILM Report, op. cit. Ch.4.

[25] See "Attachment B" of the Joint Scheme for Settlement of Alienated Land Problems, op.cit.

[26] See the CILM Report, op. cit. Ch.4.

[27] See the CILM Report, op. cit. Ch 2.

[28] It must be noted that under the scheme, people who acquire the land the subject of the redistribution are normally required to repay the purchase price of the land to the Government. See s 8 of the Land Redistribution Act. See also the Department of Lands and Surveys, Annual Report and Statement (Port Moresby 1983).

[29] Department of Lands and Surveys, Annual Report and Statement, op. cit. at 43.

[30] See Joint Scheme for Settlement of Alienated Land Problems, op. cit. at 8 et seq.

[31] See J T Mugambwa and H A Amankwa, Cases and Materials on PNG Land Law and Policy, Pacific Law Press (Hobart 1996) at 69 where the authors claim that at the beginning of May 1980, the National Plantation Management Agency was managing fifty plantations, of which twenty-seven were acquired under the redistribution scheme and twenty-three purchased by local groups with the help of commercial or Development Bank loans.

[32] It must be noted that, as a result of the Supreme Court decision in Minister for Lands v. Frame [1980] PNGLR 433 where the Court held that non-citizens are not entitled to receive compensation based on market value, it appears that market value is no longer an issue.

[33] See J S Fingleton, op. cit. at 112-113.

[34 ] See J T Mugambwa and H A Amankwa, op. cit. at 66.

[35] See Joint Scheme for Settlement of Alienated Land Problems, op. cit. at 11.

[36] Ibid

[37] See the Constitution at 2-3 for details of the National Goals and Directive Principles.

[38] Ibid at 42.

[39] By mid- 1979, 68 plantations had been acquired for redistribution. See Confidential Policy Submission to the National Executive Council, by the Minister for Lands and Physical Planning, titled “Settlement of Payment by State for Purchase of Plantations under the Redistribution Scheme”, dated 20 September 2001 at 2.

[40] Department of Lands and Surveys, Annual Report Statement, op. cit. at 43. However, by September 2001, the total outstanding amount owned to the Government was K4, 153,257.00. See Confidential Policy Submission to the National Executive Council, id at 3.

[41] Id.

[42] Id at 69-71.

[43] See n. 37 above.

[44] In this regard, the writer has been personally approached on numerous occasions by people from all over the country seeking advice on how to go about acquiring plantations located in their own areas. This seems to indicate that the scheme has not fully achieved its objectives for which it was introduced.

[45] Department of Lands and Surveys, Annual Report Statement, op. cit., at 70.

[46] Mugambwa and Amankwah, op. cit. at 69-70.

[47] Id at 71.

[48] The four pieces of legislations referred to are the Lands Acquisition Act, Land Redistribution Act, Land Groups Act and Land Trespass Act. It should be noted that all the Acts, except the Land Groups Act, were repealed by the Land Act 1996. It could, therefore, be said that the repealing of the three pieces of legislation in 1996 was an implementation of the recommendation of the Committee of Review into the Plantation Acquisition Scheme.

[49] Ibid, at 63-72.

[50] The term “State land” is no longer used in the present legislation. Instead, the term “Government land” is used to refer to land owned by the State. See s 2, Land Act 1996.

[51] See the CILM Report, op. cit. Ch 4.

[52] See R W James, Land Tenure in Papua New Guinea, op. cit. Ch 4. See also Joint Settlement of Alienated Land Problems, op. cit. at 11.

[53] The term "the former owner" in this case was defined in s 18 as to mean: (a) where only one person has an interest in the land at the date of acquisition and that person is still alive, or in the case of a company or corporation in existence - that person; or (b) in any other cases - such person (if any) as the Minister in his absolute discretion, having regard to the interest that existed in the land at the date of acquisition, considers to be fairly entitled... to the land.

[54] See s 12, Land Act 1996.

[55] See s 48(2)(a).

[56] See s 133(2)(b).

[57] See s 133(2). Previously, similar declarations were made under s 76 of the Land Act (chapter 185).

[58] See recommendation 54 of the CILM Report, op. cit. This recommendation was implemented in the form of s 48(2) of the Lands Act 1996 which is discussed above. It should be noted, however, that urban land acquired by compulsory process cannot be returned to the original owners even if it is not being used within 10 years after the date of its acquisition. See the CILM Report at 89.

[59] The CILM Report, op. cit. at 60.

[60] Chatterton, "The Historical Dimension" in Peter Sack (ed.), Problem of Choice: Land in Papua New Guinea's Future, Australian National University Press Canberra 1973 pp. 8-15 at 14.

[61] See s 18(6) of the Land Act (chapter 185); s 48(3) of the Land Act 1996.

[62] See R W James, Land Tenure in Papua New Guinea, op. cit. at 69.

[63] The CILM Report, op. cit, at 89.

[64] See s 9(5) of the Land (Underdeveloped Freeholds) Act which bars the application of s 18 of the Land Act (Chapter 185) which permits the declaration of land acquired by compulsory process to be customary land under s 76 of that Act. It appears s 9(5) of the Land (Underdeveloped Freeholds) Act would also affect the provision of s 48 of the present Land Act 1996 which is similar in terms as s 18. Under s 18(8) of the Land Act (chapter 185), such land included that which was acquired prior to 26 September 1963, being the commencement date of the pre-independence Land Act 1962.

[65] See CILM Report, op. cit. at 89.

[66] See s 5, Land Act 1996. Under s 75 of the repealed Land Act (chapter 185), land was declared not to be customary land and, in the absence of any evidence to the contrary, the land thereafter was vested in the State free from any encumbrances.

[67] See the CILM Report Ch 2.

[68] See id. at 65-66.

[69] See R C Crocombe, “The Niue Alternative” in Peter Sack (ed.) Problem of Choice, op. cit. at 75-86.

[70] J Zorn, “Fighting Over Land” (1974) 4, Melanesian Law Journal at 25.

[71] See the Constitution at 2-3.

[72] The general power of disposition of land as freehold was possible in Papua until the enactment of the Land Act 1911 which abolished the power to do so. In New Guinea, the German Administration had the power to freely grant freehold lands. After the first World war, when Australia took over administration in New Guinea under the mandate from the League of Nations, it enacted the Land Ordinance 1922 which expressly provided for the Administration to make grants of freehold lands of Administration land as their German predecessors. The power to grant freehold land by the Administration was in force until the enactment of the Land Act 1962 which simply did not make any provision for it. The assumption is that the power was, by implication, abolished. The 1962 Act unified the land laws of Papua New Guinea.

[73] See s 56 of the Constitution.

[74] See the CILM Report, op. cit. at 52-59.

[75] See s 53.

[76] See Part IV of the Act which contains the substantive, as well as, procedural provisions on the conversion of freeholds into substituted State leases.

[77] Department of Lands and Surveys, Annual Report and Statement, op. cit. at 3.

[78] See s 24, Land (Ownership of Freeholds) Act.

[79] See Recommendation 22.

[80] Section 1 of the Land Act (chapter 185) provided similar definition. Section 38 of the Land Act 1962 used the term “Government lease” and defined it as “a lease from the Government granted or continued in force under the Land Act”.

[81 ] See Part X of the Land Act 1996 for details of State leases.

[82] See s 61, Land Act 1996.

[83] See Part V of the Crown Land Ordinance 1890 (Papua); Part VI of the Land Ordinance 1899 (Papua); ss 24-31 of the Land Ordinance 1911 (Papua); Part I of the Land Ordinance 1922 (New Guinea); Part VI of the current Land Act (chapter 185); Part X of the Land Act 1996.

[84] See s 65.

[85] See Divisions 3-10 of Part X of the Land Act 1996.

[86] See s 11. As noted earlier, this Act was one of four pieces of legislation enacted to give effect to the Plantation Acquisition Scheme. It permitted acquisition of plantation lands by agreement where possible or by compulsory process where necessary for distribution under the scheme.