Resolving Customary Land Disputes Settlement [2005] MLJ 2; 2005-06 [2005-06] MLJ 43 (1 January 2005)

Resolving Customary Land Disputes Settlement[∗]

Professor R. W. James and Professor L. Kalinoe

Introduction

Today, customary land accounts for more than 97 percent of the total land area of PNG. The protection and preservation of customary land and customary land tenure was a central policy of all colonial administrations in (the then colony of) Papua and (the Trust Territory of) New Guinea. Concern with customary land tenure was important in the administration of the Territory because the colonial administration realized that if the people were kept in their villages and on their land, there would be less social problems. Realizing this, and particularly the need to have customary land disputes dealt with, but in a formal and expeditious manner, 'Kiaps' and the 'district commissioners' who had the required level of local knowledge of customs and usages, were appointed to succeed the traditional leaders as the formal bodies to resolve customary land disputes. The legislation which established these institutions and processes survived independence. They were subject to major changes discussed below.

The Native Customs Recognition Ordinance, 1963, recognised the application of customary law and this Act was replaced by the Customs Recognition Act.[1] These legislation are significant in that they give express legal recognition to customary land tenure to continue to be the basis of land holding (cf s 3). Section 3(1)(a) of the latter, in particular, declared that except in instances where the Act otherwise stated, "custom shall be recognized and enforced by, and may be pleaded in, all courts", unless the recognition and enforcement of a particular custom would result in injustice or may not be in the public interest. Section 5 (of the Customs Recognition Act) then specifically dealt with customary land tenure:

"Subject to this Act and to any other law, custom may be taken into account in a case other than a criminal case in relation to –

(a) the ownership by custom of or of rights in, over or in connection with customary land or –

• (i) any thing in or on customary land; or
• (ii) the produce of customary land, including rights of hunting or gathering.
  

(d) the devolution of customary land or of rights in, over or in connection with customary land, whether –

• (i) on the death or on the birth of a person; or
• (ii) on the happening of a certain event ...."
  

Consistent with a dual policy towards land holding, various legislation dealing with land matters, for example, the Land Act, Frauds and Limitations Act and the Land Registration Act, have no application in regulating land held under customary land tenure. They applied and continue to apply to alienated lands. In contrast, the Land Tenure Conversion Act, Land (Groups Incorporation) Act and the Land Disputes Settlement Act implemented important policies on customary land and are restricted in their application to such land. This dual system permeated both substantive law and the institutions established to resolve land disputes.

The underlying law

With the adoption of the Constitution at Independence, custom now forms a major part of the underlying law and is given universal application provided it is not inconsistent with any statute law, including constitutional law; or that its adoption and application would not be repugnant to the general principles of humanity. With the enactment of The Underlying Law Act 2000[1], the underlying law is as defined in the definition section of the Act. Its substantive terms are as stated in Schedule 2.1 of the Constitution. It is, however, interesting to note that under Section 15 of the Underlying Law Act, counsel appearing before all courts and related tribunals now have a duty "to assist the court by calling evidence and obtaining information and opinion, if relevant, which would assist the court in determining –

(a) the nature of the relevant rules of customary law; and
(b) whether or not to apply those rules in the proceedings."

Under Section 16(1) of the Act, any question relating to the existence or the content of customary law is now deemed to be a question of law rather than of fact. In ascertaining the contents of customary law, the courts and related tribunals are empowered under Section 16(2)(b) of the Act to, on their own volition, refer to cases, books, treaties, reports and other works of reference on the customary law relevant to the proceedings, or even to obtain evidence and information concerning the applicable customary law from a person whom the court accepts as being knowledgeable in such matters.

With the development of the money economy, customary land tenure which supports a subsistence mode of agricultural production is found to be wanting and therefore, under a mobilization and, subsequently, the Land Development programs, there are proposals for its substantial reforms. Until such reforms, the unwritten customs remain the major source of land tenure law.

Dispute Settlement Institutions & Process

Native Lands Commission

Customary land disputes settlement was an important component of land administration. Land conflicts gave rise to social disruptions and were a contributory cause of tribal conflicts and therefore there was a need to expeditiously deal with and dispose of such disputes. The colonial administration set up special administrative tribunals (quasi judicial) and appointed administration officials – usually the "kiaps" (District Commissioners) - to deal with such disputes, first under the Native Lands Commission Act, and then under the Land Titles Commission Act, 1962 (in force in 1963). The contribution that District Commissioners ("nambawan kiaps") made, sitting as Land Title Commissioners (LTCs), in resolving customary land disputes and determining titles was quite remarkable. For example, the work of Commissioner Jack Page in and around Madang is notorious. He single handedly determined many customary land disputes, particularly amongst the Amele's of Madang, both in the Central and South Ambenob Local Level Government areas. His decisions, made in the 1960s stand to this day, and form the root of continued customary land holdings. These decisions gave some degree of certainty of customary land holdings to customary landholders in and around Daunben and Bohor areas of Amele, on the outskirts of the Madang township.

Land Titles Commission

The Land Titles Commission was set up in 1963 and replaced the Native Courts to adjudicate disputes over customary land between Papua New Guineans inter se and to a large extent, Papua New Guineans and the State. Its parent act, the Land Titles Commission Act, was one of three acts passed in the 60s by the administration to reform customary land tenure. Its exclusive jurisdiction over disputes involving customary land lasted from 1963 to 1975 when the Land Disputes Settlement Act (LDSA) came into force. It (the LTC) combined with its ordinary land adjudication jurisdiction, a special responsibility for tenure conversion from customary to freehold titles, and the following investigative and adjudicative functions,

(a) determine whether land required for acquisition by the State is or is not customary land, including its owners ( s 9(1) Land Act),

(b) facilitate its transfer to the State, s 9(2 ),

(c) determine whether land which appears to be, is truly waste and vacant, s 5(4) & (5), Land Act;

(d) determine whether, on a reference to it, the land is or is not customary land, s15 LA;

(e) Notwithstanding the fact that its ordinary land dispute jurisdiction was given to land courts on their establishment, the LTC may be requested by the Head of State to act in special circumstances, viz:

• (i) that the dispute is of long standing and previous attempts at mediation have failed;
  
• (ii) the dispute has already resulted in breach of the peace;
  
• (iii) there is no possibility of an agreement being reached between the parties to a land dispute;
  
• (iv) it is in the national interest for the dispute to be referred to it (resource project development) – see s 4 of the LDSA.
  

(f) Finally, it was given the jurisdiction to restore titles which were lost or destroyed during World War 11, cf Land Titles Restoration Ordinance.

The Land Titles Commission is a centralized body operating out of the Commission's office in Port Moresby. It is constituted by a Chief Commissioner, and such numbers of Deputy Chief Commissioners, Senior Commissioners, Commissioners and Assistant Commissioners as are required. It has never sat well with the philosophy of self reliance and mediation advocated by the Commission of Inquiry into Land Matters (CILM) or with the constitutional Goal of "Papua New Guinean Way". Its ordinary land dispute resolution jurisdiction was repealed with the establishment of Land Courts under the Land Disputes Settlement Act, 1975. This whittled down its jurisdiction leaving it with restricted functions set out above. Even these could be best performed by senior magistrates. It becomes therefore no more than a 'white elephant.'

National Land Commission

The National Land Commission is established by virtue of section 25 of the National Land Registration Act[2] (LRA). It is charged with the responsibility of receiving and examining claims lodged against declarations of State Land under the National Land Registration Act. It is first required to make a preliminary decision in respect of each claim, as to its admissibility. Claims found to be admissible are then examined to determine whether there is sufficient justification to warrant a settlement payment, and if so, the amount to be awarded (called 'settlement payments') for which see schedule 2 of the LRA as amended to increase payments.

At no stage in this jurisdiction is it required to make any decision in relation to the settlement of any conflicting claims or other disputes. If it is faced with conflicting claims, it is required to refer them to the relevant Local Land Court for hearing and to determine who was the land owner at the date of the State's acquisition.

It was intended that its life would be terminal along with the plantation redistribution program. The Lands Department and relevant bodies such as the Provincial Governments failed to finalise an inventory of those pre independence acquisitions that the central or provisional governments intended to retain for public purposes; rather, the declarations over the thirty-four years of its existence are piecemeal. With the passage of time, the work of the Commission became frenetic. Dr Kalinoe's research highlighted the inconsistency in the awards and the excessiveness of settlement payments by some Commissioners which led to what came to be known as the "compensation frenzy".[3] This state of affairs, in the words of a critical review in the Nationalist of 5 March, 2004, referred to by Dr Kalinoe "made compensation: PNG's growth industry".

The NEC directed the Commission to stop hearing claims for settlement payments and the operation ceased, though the NLC has not yet been abolished. It is proposed that these functions could be combined with those of the Director of Customary Land Registration,[4] and the tenure conversion functions of the Land Titles Commissioners and vested in an appropriate body.

Land Court Jurisdiction

The current three tier system of customary land dispute resolution was introduced by the 1975 reforms. These are mediation, arbitration and appeal. The nature of the reforms was the result of recommendations contained in the Report of the Commission of Inquiry into Land Matters. The Committee emphasized the element of self reliance which characterized the traditional mode of resolving land disputes. It expressed as guiding principles that the dispute settlement process must be close to the people, and the aim must not necessarily be to determine who owns the land, but consideration should be given to its use (8.7 principles), and an appeal process must form an essential part of the system.

The Land Disputes Settlement Act was enacted to give effect to the principles. This legislation is an attempt "to provide a just, efficient and effective" machinery through which customary land disputes are to be channeled and resolved. That is by providing an avenue for traditional dispute settlement processes to be utilized, i e with the active involvement of the disputants assisted by local land mediators.

Chalmers and Paliwala[5] aptly observed that the dispute settlement machinery established under the Land Dispute Settlement Act "combined the elements of customary and western settlement procedures" i.e community participation and compromise through the mediation process as the key features of settling land disputes. The essential features of this are mediation and arbitration. The CILM stipulated a third requirement, viz appeal.

Land mediation

It is defined by the CILM as the process "where the parties to a dispute come together to talk about it and to settle it under the chairmanship of a neutral person".

Parts II and III of the Act (LDSA) set out the machinery for the Provincial Land Dispute Committees of the provinces (s 5) to oversee and ensure the operation of the process in the provinces. This committee creates land dispute areas and divisions, (ss 9 & 10) and appoints land mediators and approves the appointment of Local Land Court Magistrates (s 7). Land mediators are empowered under Section 17 of the Act to conduct mediation and if a decision is arrived at, they are then required to get it formalised. Section 18 subsections (1) and (2) in particular provides:

(1) If an agreement is reached between the parties to a dispute as to the whole or part of the dispute, the Land Mediator shall—

(a) record that an agreement has been reached; and

(b) unless he thinks it inappropriate to do so—record the terms of the agreement; and

(c) ensure that the terms of the agreement are understood by the parties and are formally and publicly acknowledged by or on behalf of the parties; and

(d) where the terms of the agreement are recorded—forward a copy of the record to the nearest Local Land Court.

(2) Where the terms of an agreement include agreement as to the location of a boundary, the Land Mediator shall—

(a) as far as practicable, walk the boundary with the parties; and

(b) unless he thinks it impracticable to do so, direct the parties—

(i) to inform him of all prominent natural features located on the boundary; or

(ii) to mark the boundary in such manner and with such marks as he thinks appropriate; and

(c) record the boundary in such manner as he thinks will enable it to be readily identified; and

(d) record the names of not less than three witnesses who are prepared to testify to the position of the boundary as determined in the agreement."

Section 19 deals with 'approval of the agreement':

(1) The parties to an agreement may apply to a Local Land Court to have the agreement approved.

(2) On receiving an application under Subsection (1), the Court shall make such inquiries as it thinks necessary to ensure that–

(a) the terms of the agreement are fully understood by the parties; and

(b) where a party to the agreement consists of more than one person, a substantial majority of the persons comprising the party concur with the terms of the agreement; and

(c) the agreement is not in breach of any law, or contrary to natural justice or public policy.

(3) Where the Court is not satisfied as to any matter specified in Subsection (2), it may–

(a) mediate between the parties in order to reach a satisfactory agreement; or

(b) by order direct the Land Mediator who mediated the dispute or another Land Mediator specified in the order to conduct further mediation, with, if it thinks fit, a direction as to how any defect in the original agreement might be overcome.

(4) Where further mediation has been carried out under Subsection (3)(b) and an agreement has been reached and recorded, the parties may re-apply to the Court to have the agreement approved in accordance with this section.

(5) Where the Court is satisfied as to the matters specified in Subsection (2), it may approve the agreement.

(6) An agreement approved under Subsection (5) has effect as an order of a Local Land Court made under this Act

Section 20 sets out the effect of non compliance with these provisions:

Until approved under Section 19–

(a) an agreement is, in any legal proceedings, evidence of the interests of the parties to the agreement in the land in dispute as at the date of the agreement; but

(b) the agreement or any admission or concession made by a party in arriving at the agreement, is not binding on a party, his heirs, successors or assigns.

Kirriwom J., in Tugu Yamin v Charlie Zambu, etc,[6] set aside an agreement which did not follow the procedures provided in the legislation and granted leave to the applicant to apply for judicial review of the agreement even though it was approved by the Local Land Court. Quaere if an application for judicial review is maintainable without first exhausting the appellate jurisdiction of the Provincial Land Court?

Confusion is also apparent where customary land has been alienated to the State or private individual and subsequently abandoned by the registered owner. Mr Justice Canning in Anton Lavu v Nicholas Thompson (WS 780 of 2005) applied an automatic principle of 'reverter'[7] and held that the dispute between clans or individuals, each claiming to have been the original owner, is a dispute governed by customary law and falls within the jurisdiction of the Land Titles Commission/Local Land Court.

The better view is that of Mr Justice Kirriwom in Yomi Siwi v Lincy Mathew [2006] PNGLR (forthcoming). He held that where a land matter falls outside the customary system, either because the title is tenure converted, freehold or state lease, the customary land courts have no jurisdiction and the matter should be brought to the non customary law courts, i.e. District Court, if the amount involved is K10,000 or below. If it is above that sum or it is an issue of title, the District Court has no jurisdiction and it should be brought in the National Court.

Land mediators must always remember that they are facilitators not judges. Their primary function is to assist the parties to solve their dispute in a just and amicable fashion. An important development in East New Britain and to a lesser extent in Morobe provinces is the informal mediation process organized by the Village or Ward Committees. Under this process ad hoc mediators are made available by the relevant Committee to the disputants, on a "user pay" basis. That is, each party contributes X kina to the mediators for the mediation, which if successful, the agreement including a sketch plan, would be referred to the official mediator for recording. The section 19 procedure would then be adopted. If the informal process has proven unsuccessful in any land dispute, the dispute is then referred to the official land mediator(s).

It was represented to the Land Court Committee, which was established to review the structure of the Customary Land Court, that this unofficial process has been successfully adopted by some foreign companies e.g. Digicel, to access land for telecommunication towers. The question which is posed by provincial officials is whether the informal mediation processes should be standardized in order to achieve uniformity and equality.

Arbitration

Successful mediation accounts for more than half of the land disputes, unsuccessful ones could then proceed to the Local Land Court constituted by the Local Land Court Magistrate, a member of the Magisterial Services, or Resident or ad hoc Magistrate (District Officer), for arbitration. Arbitration is used by the CILM in a non technical sense:

"By arbitration we mean where a court makes a decision on a land dispute when the parties have failed to settle it themselves by mediation." [8]

The process is referred to as arbitration and not adjudication; this is because the matter is heard by the local magistrate with the assistance of persons with knowledge of the customs of the area and the decision of the court is by majority vote.

Part III of the Act provides for the establishment of the Local Land Court (s 21) and its jurisdiction is as set out by sections 26 and 27 of the Act – i.e.the resolution of disputes concerning customary land rights and such interests. The Local Land Court sits with an even number of mediators (not exceeding 4) but usually two mediators. Again the emphasis is on mediation and compromise (s 28) but if that is not achieved, then the court would give a firm decision. Chalmers and Paliwala best summarise the operation of the Local Land Court when they say:

"The Local Land Court does not work like a western court. It does not have to decide in favour of one party or another but may reach a compromise. It does not have to make orders about who "owns" land in the western sense, it can make orders about any kind of rights allowed under custom. Thus it may make an order that a tree belongs to X but the land on which the tree stands belongs to Y"[9]

Before handing down a decision, a Local Land Court is, however, required to inspect, with all the parties, the land in dispute and must then satisfy itself of:

(a) the scope and extent of the land, where the dispute concerns interests in the use or possession of the land;

(b) the scope and nature of the produce of or improvements to the land, where the dispute concerns the produce or improvements;

(c) the location of alleged boundaries, where the dispute concerns a boundary to land; and

(d) any other aspects of the land that will assist the court in reaching a just decision.

Then Section 39 of the Land Dispute Settlement Act empowers the court to hand down its decision in the form of orders and such orders, according to Section 39(5), may include compromise orders, including orders for the land in dispute to be divided between the parties or for the land in dispute, including associated customary interests (as set out under s 39(3)) to be held in common by the parties to the dispute. After 12 years from the date of the order, parties are at liberty to apply for variation orders if it can be established that since the original order, the circumstances have now changed so much so that the continuation or further enforcement of the order is bound to cause hardship or injustice. This is authorized under section 44 of the Act.

Appeals

All appeals from decisions of the Local Land Court lie to the Provincial Land Court (established under Part V of the Act). All appeals must be filed within three months from the date of the decision of the Local Land Court (s 54(1)). Grounds of appeal are, however, restricted to those set out under section 58 of the Act – these being:

(c) excess of jurisdiction or failure to exercise jurisdiction;
(d) breach of the principles of natural justice; or
(e) unreasonableness of the decision; or
(f) particularly concerning the return of former interests, that the decision was not supported on the facts.

A Provincial Land Court Magistrate may sit with assessors though they sit in only an advisory capacity. Section 47 of the LDSA provides:

"(1) A Provincial Land Court shall be constituted by a Provincial Land Magistrate.

(2) Subject to Subsection (1), a Provincial Land Magistrate may, where he considers it appropriate to do so, request one or more Land Mediators for the Land Mediation Divisions in which the land in dispute is wholly or partly situated to sit with the Court as an assessor or assessors to advise it on any matter on which it requests his or their advice."

By a proposed amendment of the Act (No. 75 of 1976) not yet brought into force, which sets out to give the Provincial Land Court an original jurisdiction, the composition of the Provincial Land Court is stated to be –

(a) one Provincial Land Magistrate where the matter is brought directly to it as original; and

(b) three Provincial Land Magistrates where the matter is brought by way of an appeal from the Local Land Court.

(2) Where under Subsection (1)(a) a Provincial Land Court is constituted by one Magistrate only that Magistrate shall request one or more Land Mediators for the Land Mediation Area in which the land in dispute is wholly or partly located to sit with the Court as an assessor or assessors to advise it on any matter on which it requests his or their advice.

The assessors do not have the right to participate in the final decision. They advise on the custom(s) and decisions of Provincial Land Courts are final and not subject to appeal (s 60) but may be reviewed by way of judicial review, only.

Mediation within the modern Juridical System

A model that separates mediation from adjudication is in keeping with the modern legal culture of Papua New Guinea. It combines principles stated in the White Paper (2007)[10], the Constitution and defined in the "underlying law" concept. Constitutional principles include 'proceedings in open court', 'access to justice' and 'the right of the litigant to independent and impartial courts'. The underlying law is the development of an indigenous jurisprudence to a large extent with roots in customs (where ever possible) and the common law, and fashioned by the National and Supreme Courts.

The White Paper proffered a specialist Court (Land Division) within Magisterial Services, headed by a Deputy Chief Magistrate, with a small set of specialist magistrates dedicated full time to disposing of land dispute matters. This division should assume the responsibility for resolving all customary land disputes including,

1. disputes within families and between clans over ownership and boundaries; and
2. disputes falling within the special jurisdiction of the LTC and NLC.
   

Inter family disputes over the use of land are reserved for settlement by the family or mediation by the Village Court.

The White Paper provides for appeals from the Provincial Land Court, sitting as a court of appeal, or from its original jurisdiction (which it proposed), to the National Court as the final Court of Appeal in customary land disputes. The source of customary law is no longer restricted to the experts (mediators). It is interesting to note that under Section 15 of the Underlying Law Act 2000, counsel appearing before courts and related tribunals are now under a duty "to assist the court by calling evidence and obtaining information and opinion that are relevant to determine the nature of the relevant rules by customary law; and whether or not to apply those rules in the proceedings."

Then under Section 16(1) of the Act, any question relating to the existence or the content of customary law is deemed to be a question of law, rather than of fact. In ascertaining these questions of customary law, the courts and related tribunals are empowered under section 16(2)(b) of the Act, even on their own volition, to refer to cases, books, treaties, reports and other works of reference on the customary law, relevant to the proceedings or even to obtain evidence and information concerning the applicable customary law from a person whom the court accepts as being knowledgeable in such matters. This is where the work of "kiaps", missionaries, anthropologists etc. can come to the aid of the courts in ascertaining customary law.

The National Court has consistently, when referring the decisions of the land courts back for rehearing, agonized on the absence of counsel to assist the court. Justice Bredmeyer in the Casper Nuli case remarked that if lawyers were allowed to appear in the Local and Provincial Land court proceedings, then the land court magistrates would benefit from their appearance and guidance and may not commit apparent technical errors. His Honour therefore recommended that s 72 of the Land Disputes Settlement Act which restricts lawyers from appearing in the land courts should be repealed.

The Supreme Court, or judges appointed under s 4 of the LDSA, laid down some major principles of general application. These include the relative merits of genealogy and long possession in determining ownership of land: the Hides Gas Project Land case[11]; the effect of long adverse possession on the acquisition of land rights: PNG Ready Mixed Concrete Pty Ltd v PNG[12]. These have taken root in the process of developing the underlying law. In the Local Land Court In the Matter of Magarida Patrol Post Land,[13] the decision which was supported by the two assessors was as follows:

"the court found the principle of adverse possession as provided under s 67 of the Land Disputes Settlement Act which confers customary ownership right or title over the land by the operation of the law applies in this case. The said principle was stated in the case of Re- Hides Gas Project Land Case at p. 316-317 by Amet J. Then it was applied in many other cases including Injia J, in the unpublished National Court decision in Tawindi Clan v Kaimari Clan [1997] N1775, where he stated that:

'It is not merely an evidentially aid to the determination of title over land as suggested in Re – Application of Nango Piuzi [1988 – 89] PNGLR 464 at p. 170, but also the use of the land over a period of more than 12 years without opposition confers that right of title by operation of the Law. Upon the expiration of 12 years the person is the absolute owner of the land which includes all improvements on the land which they erected.'"

Commenting on developments in the underlying law when reviewing the law and practices of Incorporated Land Groups, it is observed that the superior courts are in the process of developing fiduciary principles in order to protect clan members' interest in clan land and hold the leaders accountable for common funds.

In noting the need for prudence in handling the landowners' money (in a culture that does not recognize accountability of the big men) Injia, DCJ in Dumal Dibiaso v Kuma[14]stated

"The money held in trust for the benefit of landowners ...should be protected from the actions of 'their representatives' who it seems to me, tend to procure services away from home, in outside locations like Port Moresby, and incur expenses, with or without the knowledge or approval of the landowners and they may or may not be for the real benefit of the landowners, which are then charged on the trust funds and the landowners beneficiaries of those funds miss out. All too often, we hear about the plight of aggrieved, dissatisfied or disgruntled landowners, unsatisfied at not being paid. Projects get interrupted. Many landowners incur their own expenses in making long journey themselves to Port Moresby to check on payments. Their representatives must conduct themselves in such a way that they do not abuse the trust placed on them by the landowners by keeping administrative costs at a minimum."

The role of the courts as an engine of change must be considered and any review of its structure must take into consideration the changing nature of substantive law and how they impact on the adjudicative process and visa versa.

The model argues the separation of the mediation and adjudication processes. Where the mediation process does not settle a land dispute only then will the Local Land Court become the appropriate forum to litigate the dispute. Mediators could be called as expert witnesses and the Court could exercise its power under section 28, ibid, to mediate, in appropriate cases. Section 28 provides that:

"At any stage of a hearing before a Local Land Court, the Court may mediate between the parties in order to reach a just, effective and amicable agreement between the parties to the dispute.

The Local Court may adjourn a hearing, if it appears that by doing so an agreement may be arrived at between the parties.

Where a Local Land Court mediates a dispute under this section, Sections 18 and 19, with the necessary modifications, apply as if the mediation [were done under those sections]."

Conclusion

Mediation offers a process by which parties come together with the aid of a neutral third party to resolve their dispute. Litigation on the other hand, is a process in which the courts impose binding decisions on the disputing parties in a determinative procedure operating at the level of legal rights and obligations. They are based on conflicting philosophy.

In the attempt to resolve the dispute a mediator is not bound by any rule of law for his goal is to effect a lasting settlement acceptable to both sides. Mediation, however, can only be successful where everyone is willing to agree to such a settlement, and in the words of Kirriwom, J., "Mediation is a good process where everyone can win and leave satisfied"- Jack Afing v Martin Pari et al[15].

But a land mediator is invariably drawn from the community of the disputants and therefore he might be able to get their confidence, though his nearness to one or more of the parties might lead to a suspicion of bias, and rejection of his attempt at settlement. The disadvantage of settlement by mediation is that it retards the development of the law.

In contrast, in the adjudication process there can be only one winner by a court imposed order. This decision may put an end to the case without putting an end to the dispute or disagreement between the parties. The law becomes settled and, like the common law, unified and more reflective of a national consciousness.

In resolving customary land disputes these processes are interdependent.

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^[∗] By Professor R.W.James and Professor L. Kalinoe

^[1] Chapter 19 Revised Laws of PNG.

^[1] No. 13 of 2000.

^[2] ch 357

[3] ‘Compensating Alienated Customary Land in Papua New Guinea: Rethinking its rationale and its regime”. Post. P.52.

^[4] See s 6 et seq. of the Land Registration (Customary Land) (Amendment) Act.

^[5] An introduction to the law in Papua New Guinea, 86.

^[6] NC No 3038(2006)

^[7] This Principle applies to succession to a deceased land, but not to the system of land holding. The land retains its registered status, see s125 of the Land Registration Act; in the estate of Doa Minch [1973] PNGLR 558; R.W. James, Land Law and Policy in PNG, p36;F Kassman, 1974, MLJ 5.

^[8] Para 8.10 CILM Report

^[9] Ibid p87

^[10] A White Paper on Law & Justice, 2007, ch 3

^[11] [1993] PNGLR 304

^[12] [1981] PNGLR 396

^[13] [2006] PGLLC

^[14] [2005] PNGLR (forthcoming)

^[15] [2006] PNGLR (forthcoming)