Compensating Alienated Customary Landowners in Papua New Guinea: Rethinking the rationale and the regime

Professor L. Kalinoe

Introduction

Recently the Minister for Works and Implementation, the Honourable Gabriel Kapris, addressed the nation on the government's Talk Back radio programme on the national Karai Radio on the government's capital works programme. Mr Kapris stated that the maintenance of the Highlands Highway and the sealing/re-gravelling of the Sepik Highway may not progress smoothly if customary landholders continue to demand excessive compensation payments. The Minister's views were immediately supported by Governor Peter Ipatas of Enga. The Honourable Pias Wingti, the Governor of Western Highlands Province, has also, on previous occasions, made similar comments, particularly when addressing his people of the Western Highlands. I am sure many others in Papua New Guinea also subscribe to this view.

One week later, one of the national daily newspapers reported that a Community School in Kerema, Gulf Province, has been threatened with closure by customary landholders because their demands for compensation have not been addressed by the National Education Department. Then the following month we read again in the daily papers, of a classroom in a community school in Wau, Morobe Province, being burnt down by angry relatives who demanded (Papua New Guinea Kina) K50, 000 (about AUD$ 25,000) compensation from the school and the Education Department, but that the school and the authorities were only able to afford K1,500 (AUD$750) in compensation payment. These more recent events aside, since 1998 the land upon which the University of Goroka (then a campus of the University of Papua New Guinea) is situated has been, and continues to be, the subject of a massive K4 million compensation claim. The University has been threatened with closure by the group of land-owning clans who previously owned it as customary land and since sold it to the State.

Yet again we read in one of the daily newspapers that a Local Government Councillor, David Maip, and his tribesmen, have moved into the Mount Hagen Secondary High School grounds and forced its closure, hence forcing 1,200 students in grades 9 to 12 to go home. The reason? They wanted an explanation from their lawyer, Simon Ketan, who practises in Port Moresby, as to the whereabouts of compensation money allegedly paid to him by the authorities for distribution to David Maip and his tribesmen - who are in actual fact the former customary owners of the land upon which the school now stands. Did they have to close the school down? Of course not. All, they needed to do, was simply to pursue the matter with their lawyer, because on the part of the school and the relevant authorities, they have paid the 'compensation money as previously awarded by the National Land Commission, through their lawyer. The editorial of The National on 5 March, 2004 when commenting on the tribesmen's actions, makes the following forceful points, which I endorse and recommend serious consideration by those in authority, to implement now, rather than later:

Schools, hospitals, bridges, roads and airstrips can be constructed at considerable costs ... But all too frequently, the opening of these facilities, with their star-studded pack of local luminaries, is rapidly followed by previously unheard-of demands for 'compensation'. Compensation for building a hospital on waste land? Compensation for constructing a road that makes it possible for thousands to get their produce to market? And compensation for providing the children of tribesmen and villagers with an up-to-date education delivered in up-to-date facilities? How much longer are we as a nation going to tolerate this ...? The fact is that these outrageous and unjustifiable compensation claims will continue to stifle real growth in this country... We look forward to the day when our elected government will act with determination to permanently rid our society of this type of arrantly nonsensical compensation demand.

It is common knowledge in Papua New Guinea that numerous other Government (i.e. State) institutions and Church establishments have been threatened with closure by customary landholders throughout the country. The irony of these is all too obvious - the very people who use these roads and bridges, schools, aid posts, hospitals, even the entire government towns and outstations are, of course, the same customary landholders who are threatening closure of the institutions! In many instances, if not all, the lands are either urban or peri-urban in location but have long ceased to be held under customary title and are now alienated and no longer owned by them, but by the State. The customary landholders have in actual fact ceased to be landowners when the land was previously sold (to the State by their forefathers). Rather, they are now "former" customary landholders.

Then on what basis do they make their claims? In this paper, I take up that question and related issues. I will then suggest at the end of this paper that perhaps it is now time to re-examine and reconsider our initial thinking and the rationale behind the establishment of some of the State institutions which facilitate and feed 'the compensation frenzy'. Before I arrive at that, I should first like to spend some time on some conceptual issues bearing on the rather complex topic of compensation, and on some of the concerns which the national government has expressed on the subject.

Compensation and its manifestations in Papua New Guinea.

Colin Filer, David Henton and Richard Jackson when reviewing the various forms of (customary) landowner compensation paid in the mining and petroleum sectors in Papua New Guinea, began first by looking at the literal meaning of the word "compensation". I take that same approach here. In my view, this approach is necessary and also important for the purposes of injecting rational thinking into this sometimes rather irrational topic in Papua New Guinea. Filer, Henton and Jackson note that the word compensation derives from the Latin word pensare, meaning a balancing act. Professor Richard Jackson, in his other contribution on the subject, pursues this further and states that:

Compensation in its original and continuing underlying sense means to bring matters back into a (previously assumed) balance! In the mechanical world it meant, among other things, the additional of weights on either side of a fulcrum or to the motor device of a clock (the pendulum) so as to achieve a new or restored balance.

No doubt, therefore, conceptually, a compensation payment is paid to restore balance i.e. to place the person who has suffered a loss back into the original position prior to the occurrence of the event, act or omission that resulted in the loss. Rationality (as opposed to, say, irrationality) therefore dictates that a compensation payment is made as restitution, but not to create new wealth. This, therefore, means too that when compensation is paid for environmental damage, the focus of this compensation must be for the restoration of the damaged environment. If compensation is paid for the loss of amenities or standard of living, then the focus of this payment has to be the restoration of the amenities or standard of living. I suggest that in Papua New Guinea we have got ourselves somewhat into trouble and are nearly drowning in the compensation web because we have converted all of our 'compensation' payment into monetary payments, directly into the hands of individual community members as new disposable income without having to channel compensation to address any loss suffered by the communities as a whole.

Take for example, customary landholders. Where the issue of customary land ownership arises, they argue that their social group or a unit of it (clans etc.) own the land, and then pursue their negotiations with either the Government or resource project developer collectively as a unit. But when it comes to .compensation payment time, they would rather be paid cash individually. They prefer that their loss (say environmental loss or loss of amenities) should be converted to a direct cash payment rather than the restoration of environmental loss or loss of community amenities. Strictly speaking, this is not 'compensation' in the rational sense since the payment is not going towards the restoration of environmental damage or the loss of amenities or the restoration of quality of life in the people's communities. When such damage or loss is not addressed then of course the loss will remain like an ulcer whilst the money will be quickly spent. When the loss remains, the community is still aggrieved. The community then complains that their compensation payment was insufficient and wants or demands more payment in money - not to restore the environmental damage or loss of amenities but for money to spend. I want to suggest that we must reconsider the way in which we award compensation payments now.

I wish to further suggest that we must draw a distinction between "compensation" on the one hand, and other related forms of payments or benefits which customary landholders receive, on the other hand. As I pointed out earlier, compensation is strictly speaking a means to compensate for a loss or damage that the landholder suffers. We must, therefore, make a distinction between compensation and those other types of payment - such as royalty payments, and say occupation fees or even equity in a venture or rent. This is necessary so that we are able to streamline the language and terminology so that we better understand the subject matter that we are addressing.

Compensation on the deprivation of land or interest therein

Let me emphasize again that compensation payments are made for damage or loss suffered by the landholders. In setting up a statutory compensation regime, most natural resource legislation does emphasize a loss or damage to warrant compensation. For example, section 23 of the Land Act 1996 (PNG) states that compensation for land acquired by the State by compulsory process may be assessed on the basis of:

•	the value of the land at the date of acquisition;

•	any damage caused by the severance of the land from other land in which the claimant has an interest; and

•	the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land is acquired.

These are useful considerations, which I submit should form the basis for the quantification of a fair and realistic quantum. 

Compensation on "accessing mines and minerals"

Other resource specific legislation such as the Mining Act 1992, are governed by different principles to assess compensation. The Mining Act4 declares that compensation must be calculated on the basis of deprivation of possession or use and enjoyment of surface land; damage to the surface land; severance of land; damage to quality of water and or aquatic life; loss of or damage to improvements, including cash crops, gardens etc.; disruption to the subsistence way of life; and social disruption, including relocation and damage to sacred sites. In dealing with these compensation claims, we must always be guided by such statutorily fixed heads.

"Settlement payment"

'Compensation' payments under the National Land Registration Act 1977 are for declared national land previously acquired by the State. Strictly speaking, such payments are not 'compensation' but rather "settlement payments" and they are statutorily fixed by Schedule 2 of the Act (as amended in 2008)). The National Lands Commissioner has no legal authority to award general compensation outside Schedule 2 for claims by former customary landowners who sold their lands to the State in by- gone days, but only an entitlement to 'settlement payments' to appease outstanding, sometimes generational, grievances, for what was unimproved customary land, when acquired in the colonial period. This is why these payments are referred to in the legislation as 'settlement payments' - clearly distinguishing them from 'compensation'.

"Royalty payments"

Royalty payments are dependent on, and are determined by, the value of the natural resource from the land, be it customary land or other land. Royalty payments are then paid to the landholders from the proceeds of sales - usually a fixed percentage of the net earnings. Where there is a dispute as to ownership of the land the Minister could make a determination on which of the competing claimants to receive the royalty payments. These are not compensation because such payments do not redeem a loss or compensate for damage suffered, but are new wealth in the hands of the recipient.

In making this distinction between compensation and the other types of payment, we are able to streamline the language and bring rationality into this rather irrational subject and hopefully separate genuine compensation claims from other unrealistic claims. Compensation demands must not be, to borrow from Paul McGavin, a search for unearned income. They must represent a loss or damage!5

Successive governments since Papua New Guinea's Independence have also been baffled with the problem of excessive compensation claims. For example, in response to a AUD$ 4 billion law suit by certain Ok Tedi - Fly River landholders against BHP and OTML in 19946, the then Prime Minister Pias Wingti, angrily stated that his government was going to seriously consider abolishing all civil lawsuit claims for compensation and instead, subject landholders to a statutory compensation regime, and proposed to introduce legislation, with retrospective effect, to:

1.	limit the aggregate of claims for damages by land owners;

2.	establish a compensation tribunal with exclusive power to deal with such claims speedily and competently;

3.	compel resource developers either to establish a fund which would accumulate over time, or to put up a bond from which future claims could be met; and

4.	give the State power to sue developers for environmental or other damages of unlimited amounts.

Mr Wingti was not able to see his plans through because of the vote of no confidence which saw Sir Julius Chan installed as Prime Minister in 1995. Instead, when the Chan Government took office it enacted the Compensation (Prohibition of Foreign Proceedings) Act 1995. The main feature of this legislation is the prohibition of compensation proceedings in any foreign courts in relation to any mining and petroleum projects in Papua New Guinea. The prohibition is not restricted to foreign courts of justice but extended to any forum or tribunal that is not established under Papua New Guinean laws.

Any person who contravenes this Act by pursuing compensation proceedings in a foreign court would be guilty of an offence and liable to a maximum penalty of a fine not exceeding K10,000.00 or imprisonment for a term not exceeding five years or both (see s 5 of the Act).

Earlier, on 14 November, 1991, the Government amended the Criminal Code Act and under s 3(9)A, criminalized landholders' compensation demands in the nature of extortions. It reads:

a person who, with intent to extort or gain anything in payment or compensation from any person –

a) 	demands the thing, payment or compensation; and

b) 	in order to obtain compliance with the demand;

(i)	causes or threatens to cause injury to any person or damages any property; or

(ii) 	does or threatens to do any act which renders or is likely to render any public road, bridge, navigable river, or navigable channel, natural or artificial, impassable or less safe for traveling or conveying property; or

(iii) 	otherwise unlawfully threatens or intimidates any person, is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years

This provision does not, of course, outlaw all compensation demands. It only outlaws and criminalizes those demands which:

a) 	are accompanied by threats to cause injury to any person or damage any property; or

b) 	does or threatens to do any act which renders or is likely to render any public road, bridge, navigable river, or navigable channel, natural or artificial, impassable or less safe for traveling or passage; or

c) 	otherwise unlawfully threatens or intimidates any person.

In short, what this provision makes 'criminal,' is extortions.

In June 2000, Filer, Henton and Jackson reported that none of the Government officers they interviewed in their compensation review study were aware of any instances where criminal charges had been laid under this provision.7

Apart from these legislative measures, we must also note that there have been attempts made at the executive governmental level to address the problem of customary landholders' compensation, particularly in the period 1994 - 1997 under the Chan/Haivetta Government. For instance, in 1994 the Honourable Bernard Narakobi, then Minister for Justice and Attorney General, issued a reference to the Law Reform Commission to investigate the issue of compensation for resource development projects following a previous reference by Sir Ebia Olewale on compensation in 1975. This reference has resulted in eleven useful conceptual papers by sociologists and anthropologists.

In February 1995, the then Prime Minister Sir Julius Chan, in the wake of a massive K4 million compensation claim by customary landholders of the Wewak Boram airport, convened an inter-departmental working committee to come up with guidelines or procedures for dealing with excessive compensation claims. This working committee then made the following recommendations:

•	the establishment of a Land Development Commission, incorporating the present functions of the National Lands Commission, the Land Titles Commission, the Land Court Secretariat, the Land Investigation Branch of the Department of Provincial and Local Government Affairs, and (perhaps) also the Office of the Valuer-General, which would be responsible for the identification of customary landowners and the settlement of all disputes and compensation claims relating to customary land;

•	a review of all existing legislation relating to land disputes and compensation, with a view to standardizing procedures and drafting a new Compensation Act, for which the Land Development Commission would take administrative responsibility;

•	the establishment of a Landowners Compensation National Trust, into which landowners would be encouraged or obliged to deposit a certain percentage of compensation payments made in respect of their land, in order to make provision for future generations of landowners; and 

•	the adoption of a standard method of distributing cash compensation payments to individuals or nuclear families, rather than to larger groups, in order to minimize the risk of misappropriation by the leaders or representatives of those groups.

It is clear that nothing has come out of these. Nevertheless, let me make the following observations. I support the recommendations for the review of all land or natural resource compensation regimes under current existing legislation, with a view to standardizing practices and procedure and then bringing them under a new compensation legislation; and I further support the establishment of a Landowners Compensation National Trust to invest and manage a certain percentage of compensation payments on behalf of the landowners concerned for the generation of wealth and continuing income. However, I do not support the creation of a Land Development Commission as proposed. In my view, the 'lumping together' of different agencies' currently dealing with land compensation matters will neither improve efficiency nor improve our current position in attempting to contain and control unscrupulous compensation demands. I am fearful that it will rather be more 'facilitating', for there will now be a 'one-stop-shop'. This fear is based on the rest of the recommendations which the working committee proposes, some of which I shall comment on. With respect, I find the recommendations concerning "compensation" for alienated land (i.e. customary land purchased by the State for public purpose) - that such "compensation" payments must be paid on a regular basis "to ensure that successive generations receive an income for land used for development projects" (Toft and Saffu 1997 at p.44) - to be astoundingly mind-boggling. Such recommendations totally ignore the initial purchase by the State of the land and misinterprets the initial transaction changing the context of the payment from one that is supposed to be "compensation" to rent - a somewhat "generational rent" perhaps. I suggest that a better approach for the working committee to have taken, is one that involved a review and assessment of the rationale of the various compensation regimes: particularly the most problematic ones such as the Boram Airport K4 million compensation demand, the very subject which triggered the establishment of the review committee. This of course would have involved the review of the rationale behind the establishment of the National Land Commission under the National Land Registration Act. Similarly, the roles and functions of the Land Titles Commission under the Land Titles Commission Act, and the Local and Provincial Land Courts under the Land Disputes Settlement Act, and even perhaps the Mining Wardens Tribunal under the Mining Act. But to recommend an amalgamation of all these diverse institutions, with their own legislative arrangements, without reviewing their powers and functions and their level of contribution either way (negative or positive), seems rather awkward.

Let us now look at the one State institution which is involved in determining and awarding "settlement payments" but which is loosely referred to as 'compensation' over urban or peri-urban customary land - the National Lands Commission established under the National Land Registration Act 1977

The National Land Commission

This commission is established under Section 25 of the National Land Registration Act, 1977. It was set up, at the behest of the Commission of Inquiry Into Land Matters (CILM), to act as a forum to address the indigenous people's complaints about inadequate payments by the colonial administration upon the acquisition of their land for Crown or State use, and such other public purposes. It was also intended that by taking this approach, essential "State Land" (i.e., all land other than customary land - also known as "government land") would be secured and separately registered in the Register of National Land. In many ways therefore, the primary purposes and functions of the National Land Registration Act 1977 are to:

(i)	establish a Register of National Land; and

(ii)	provide for the registration in the Register of National Land of all land acquired or to be acquired by the State on or before Independence Day [16 September 1975], and that are intended to be retained by the government or and its instrumentalities.

Settlement of grievances by aggrieved Papua New Guineans, who previously owned such land as customary land, is a secondary purpose under the Act, but it is a necessary one (to fully secure state land). The National Land Commission was then set up under this Act to hear and settle grievances, mainly over the inadequacy of payments by the colonial administration to obtain customary land. After all is said and done, the intention was to fully secure "State Land" or "Government Land" so that the State's interest, institutions and functions were not impeded, undermined or jeopardized.

For the National Land Commission to have jurisdiction and to then invoke its powers, the land that is the subject of the claim must first be one that was acquired before Independence by the colonial administration. The Minister responsible for land matters must then declare, by publication in the National Gazette, that the land in dispute is "National Land". (see s 7(1) of the Act). Section 7(2) of the Act then goes on to stipulate that the Gazette notice must contain a description of the land. If the Minister is of the opinion that there may be a genuine dispute as to ownership he is required to refer the disputed to the Land Court for adjudication

Only after the land in issue is declared by publication in the National Gazette as "National Land" (commonly referred to as a section 7 Declaration) can the aggrieved persons submit their claim to the National Land Commission for a "settlement payment" following the process set out under section 39 of the Act. Before actually proceeding on with the claim, the National Land Commission is required under s 41 of the Act to determine the admissibility of the claim in accordance with the criteria set out under s 40 (of the Act). This is a significant vetting process, which I hasten to add, has unfortunately not been seriously applied by the National Lands Commission in the recent past. Nevertheless, s 40 (2) in particular instructs that:

2) 	A claim under section 39 is admissible only if –

a) 	subject to subsection (3), a prescribed person had made, before Independence Day, a previous claim to the land or to the right the, subject- of the claim, under a law by virtue of which a claim to the land might have been made; and

b) 	subject to subsection (4), no payment (including ex gratis payment) for the land or for the right was made to the prescribed person in respect of a purported acquisition by a pre-Independence Administration in Papua New Guinea.

As stated above, this is a significant vetting process built in to separate spurious claims from genuine outstanding claims to be properly and fairly handled by the Commission. Under the s 40(2) screening process, if there is no evidence of a previous claim made before Independence over the concerned State Land, and if there is evidence that some form of payment (including ex gratia payment), was previously made over the concerned land, then the claim must be found inadmissible before the National Land Commission. The Commission is then deprived of jurisdiction and the claim cannot be pursued any further.

S 40(3) of the Act, however, gives the Commission some discretion if it forms the opinion that:

a) 	there were special and reasonable reasons which rendered the claimants unable to make the claim before Independence; and further

b) 	that in the circumstances of the particular case, it would be unjust to strictly enforce the requirements of section 40(2) as cited above.

On the issue of previous payments made by the colonial administration to purchase the land concerned, s 40(4) of the Act, says:

For purposes of subsection (2)(b) –

a) it is irrelevant whether or not a payment was made in cash; and

b) no account shall be taken of any payment the amount or value of which was, in the opinion of the Commission, insignificant when compared with the value of the land at the time when the payment was made, whether or not value can be precisely estimated.

It is important that this provision must be read and construed in context. It is a direct response to the concerns expressed by many indigenous Papua New Guineans (then referred to as "natives") to the Commission of Inquiry Into Land Matters (CILM) in 1973, that the colonial administration had acquired their land either with tobacco or calico or grossly under the real value of land. As we all know, land value is a subjective measure, and it is dependent on the unimproved value at the time of purchase, not at today's valuation. If land was purchased in, say, 1920, then the value has to be assessed by the value systems operating in 1920 using the lenses and debris of history rather than the valuation systems we use today. Value systems and judgments change over time and it is most unfair to judge history by today's value systems and judgments. It is my submission therefore that when the NLC is faced with putting value to a claim, it must exercise great care so as to ensure that the value it puts is not one that is totally removed from its previous (e.g.1920) value. The NLC must be discouraged from taking into account current improvements put in by the State which are likely to significantly improve the current value of the claimed land. The rationale for this is that it is most unfair to the State or any purchaser for that matter, of previously undeveloped customary land, to now make the purchaser pay for the improvements to the land which the purchaser has made.

At the time when the claims are made to the NLC and it transpires that there are conflicting claims, then the NLC is required under s 43 of the National Land Registration Act to refer the claim to the appropriate Land Court under the Land Disputes Settlement Act 1975 for the conflicting claim to be settled. Usually, conflicting claims relate to disputed ownership of the land when it previously existed as customary land prior to its purchase by the State. This is rather strange because the disputing claimants are in actual fact contesting "ownership", which is not an issue now but perhaps was in retrospect. The land (the subject matter of this contest before the Land Court) is neither owner-less nor customary land but alienated land now owned by the State as National Land.

It is only after the conflicting claims are settled by the Land Court that the matter can then be heard by the NLC. This is because the NLC has no jurisdiction to hear and determine disputes over ownership of (what was previously) customary land. That jurisdiction is bestowed on the Land Courts alone by the Land Disputes Settlement Act, 1975.

In recent times, these previous customary landholders have been holding themselves out as self-proclaimed "principal landowners" or "papa/mama graun" (father or mother of the land). The irony of this is that these people do not actually own the land but the State does. They are, in actual fact, "previous customary land owners".

Section 43(2)(b) of the National Land Registration Act 1979 goes on to state that decisions of the appropriate Land Court are binding on the National Land Commission. The NLC can then proceed to hear the claim and award settlement payments under s 44 of the Act.

The amounts of "settlement payments" are statutorily fixed under Schedule 2 of the Act. This is made clear by s 45(1) which reads:

"Subject to this Section, the total amount of settlement payments under this Act in respect of any parcel of land shall be an amount, calculated by the Commission, in accordance with Schedule 2."

Schedule 2 then sets out the basic amount of settlement payments based on a per hectare basis as follows:

Land in Towns–	K	
Not exceeding 1 ha	500.00	
Exceeding 1 ha but not exceeding 2 ha	950.00	
Exceeding 2 ha but not exceeding 3 ha	1,350.00	
Exceeding 3 ha but not exceeding 4 ha	1,700.00	
Exceeding 4 ha but not exceeding 5 ha	2,000.00	
Exceeding 5 ha but not exceeding 6 ha	2,250.00	
Exceeding 6 ha but not exceeding 7 ha	2,450.00	
Exceeding 7 ha but not exceeding 8 ha	2,600.00	
Exceeding 8 ha but not exceeding 9 ha	2,700.00	
Exceeding 9 ha but not exceeding 10 ha	2,800.00	
Exceeding 10 ha but not exceeding 50 ha	2,800.00 plus 75.00 per ha or part of a ha in excess of 10	
Exceeding 50 ha but not exceeding 500 ha	5,800.00 plus 50.00 per ha or part of a ha in excess of 50	
Exceeding 500 ha	28,300.00 plus 10.00 per ha or part of a ha in excess of 500	
		
Land Outside Towns–		
Not exceeding 5 ha	100.00 per ha or part of a ha	
Exceeding 5 ha but not exceeding 10 ha	500.00 plus 50.00 per ha or part of a ha in excess of 5	
Exceeding 10 ha	750.00 plus 10.00 per ha or part of a ha in excess of 10.	

Unfortunately, some of the awards made by Commissioner Nathanias Marum in the recent past have been in millions of kina and without any basis whatsoever. For example, in 2000 Commissioner Marum made an award of K2.7 million to one Peter Apoi of Ningera village, Vanimo, West Sepik Province. The claim was made in 1999 and the NLC swiftly made the award in 2000. The payment was made somewhat instantaneously that same year in record time. Commissioner Marum was clearly acting without jurisdiction when he made this award because he acted outside of the fixed schedule of payment under Schedule 2. The NLC being a creature of statute, its powers and functions are fixed by the enabling statute. Hence it cannot and must not venture outside of statutorily set powers as it did in the K2.7 million award to Peter Apoi. Another example is that on 7 March, 2000 Commissioner Marum awarded a little over K4.8 million to some Kudjip Government station former customary landowners led by Ken Kamung, Simon Tapi and Kupal Kaken. Yet another is that on 21 May, 1999 Commissioner Marum awarded Loa Boko and his clansmen from Hanuabada village, Port Moresby, K4.3 million in a "compensation package" for the land known as Era Nese which is essentially down-town Port Moresby city! Fortunately for the Government, the Attorney General appealed this award to the National Court and the court quashed the award for being excessive and remitted it back to the NLC for proper assessment.

Re-thinking the Rationale Behind the National Land Commission.

As stated above, the National Land Registration Act does two things. First, it establishes the Register of National Land for the registration of land acquired by the State either before Independence or on or after Independence and requires that this function of registration of national land is handled by the Registrar of Title of the national Department of Lands and Physical Planning. The second institution that this legislation establishes is the National Lands Commission (NLC), set up essentially to process compensation claims by the previous or former customary landholders who have sold their land to the State, either in the colonial period or after Independence. The National Lands Commission is administered by the Department of Justice and Attorney General. The background to the establishment of the National Land Commission is quite well known - it was established to address concerns expressed by indigenous Papua New Guineans to the Commission of Inquiry into Land Matters (CILM) way back in 1973 - that the colonial administration may have acquired customary land from indigenous people, either unfairly or under value e.g. that some land may have been bought with such things as tobacco, axes, salt, shell money or calico etc. Accordingly the CILM recommended the establishment of the NLC to provide an administrative tribunal before which the former customary landholders could address their grievances. In hindsight, whilst the CILM recommendation was, and perhaps is still, a politically popular decision, it has pitted indigenous Papua New Guineans against their State and it somewhat perpetuates the 'Government' against 'us' mentality. Through this NLC mechanism, we now find that just about all government land throughout Papua New Guinea, particularly those in urban and peri-urban settings, are under claim. 

Here is a list of the townships etc. which are under claim and for some of which settlement payments have been made:

Table 2: Townships and Related Government Establishments Claimed.

Township	Province	Year	Status	
Kaintiba	Gulf	1988	Awarded K5,125.00	
Kimbe	West New
Britain	1989	Awarded K30,346.00	
Morobe	Morobe	1990	Awarded K30,346.00
declared	
Tapini	Central	1990	Declared and awarded	
			in 1991 K13,725.00	
Meyama
Government
Station	Morobe	1990	Declared	
Pagwi
Government
Station	East Sepik	1990	Declared		
Bundi
Government
Station	Madang	1990	Declared		
Nuku	West Sepik	1990	Declared awarded in
1991, K5,865.00		
Oksapmin	West Sepik	1990	Dismissed		
Maprik	East Sepik	1990	Dismissed		
Wewak	East Sepik	1990	Awarded		
Township	Province	Year	Status		
Momote
Airport	Manus	1990	Awarded K23,250		
Lorengau	Manus	1990	Awarded		
Wau	Morobe	1990	Referred to LLC		
Bulolo	Morobe	1990	Referred to LLC		
Hoskins
Airport	West New
Britain	1990	Awarded K22,428		
Madang	Madang	1990	Awarded		
Bogia	Madang	1990	Awarded in 1991
K9,356.25		
Ramu Sugar
Goroka
Township	Morobe	1990
1990	Awarded K85,525.05		
			Awarded 28,790		
	Eastern
Highland				
Kundiawa	Chimbu	1990	Claimed		
Kerowagi	Chimbu	1990	Claimed		
Drekikir	East Sepk	1991	Declared		

Township	Province	Year	Status	
Daru	Western	1991	Declared	
Namatanai	New Ireland	1991	Declared	
Kandrian	West New
Britain	1991	Declared	
Tan	Southern
Highlands	1991	Awarded in 1992
K8,320	
Lake Kopiago	Southern
Highlands	1991	Claimed.	
Rabaul	East New
Britain	1991	Awarded K29,896.00	
Taskul	New Ireland	1991	Dismissed	
Lumi	East Sepik	1991	Awarded	
Bewani	West Sepik	1992	Awarded K1,450	
Kandrian	West New
Britain	1992	Awarded K24,307.50	
Biala	West New
Britain	1992	Awarded K42,735.	
Tambul	Western
Highlands	1992	Awarded	
Kokopo	East New
Britain	1992	Awarded K150	
Arawa	North
Solomons	1992	Referred to LLC	
Township	Province	Year	Status	
Kupiano	Central	1992	Referred to National
Court	
Magarida	Central	1992	Pending for hearing	
Vanimo	West Sepik	1992	Referred to LLC	
Aitape	East Sepik	1992	Referred to LLC	
Bainyik	East Sepik	1992	Adjourned/Pending		
Ihu	Gulf	1992	Referred to LLC		
Malalaua	Gulf	1992	Referred to LLC		
Kukipi	Gulf	1992	Pending hearing		
Ambunti	East Sepik	1992	Referred to LLC		
Namatanai	New Ireland	1992	Pending hearing		
Green River	West Sepik	1992	Intention Notice		
Kieta	North
Solomons	1992	Intention Notice		
Drekikir	East Sepik	1992	Intention Notice		
Amboin	East Sepik	1992	Intention Notice		
Menyama	Morobe	1993	Awarded K3,533.45		
Menyama
School	Morobe	1993	Awarded K1,764.45		
Namatanai	New Ireland	1993	Awarded K8,950.00		
Township	Province	Year	Status		
Kokoda	Northern
(Oro)	1993	Awarded K15,192.75		
Mamba Estate	Northern
(Oro)	1993	Awarded K52,350.00		
Yauwosoro	East Sepik	1993	Awaiting written
submissions		
Bainyik	East Sepik	1993	Awarded K2,309.00		
Boram Airport	East Sepik	1993	Awarded K8,735.00		
Vanimo	West Sepik	1993	Awaiting submissions		
Magarida	Central	1993	Referred to Local Land
Court		
Finschaffen	Morobe	1993	Referred to Local Land
Court	
	Western
(Fly)	1993	Awarded K37,200.00	
Minj	Western
Highlands	1993	Submissions	
Mingende	Chimbu	1993	Submissions	
Kwikila	Central -	1993	Adjourned sine die	
Drekikir '	East Sepik	1993	Hearing pending	
Drekikir	East Sepik	1994	Adjourned	
Morobe Patrol
Post	Morobe	1994	Submissions	
Township	Province	Year	Status	
Wapenamanda	Enga	1994	Referred to Local Land
Court	
Banz	Western
Highlands	1995	Awarded K22,275.00	
lhu	Gulf	1995	Awarded K60,000.00	
Konos	New Ireland	1995	Awarded K60,000.00	
Minj	Western
Highlands	1995	Awarded K18,384.00	
Yauwosoro	East Sepik	1995	Awarded K7,043.00	
Amboin	East Sepik	1995	Awarded K1,710.00	
Talasea	West New
Britain	1995	Awarded K20,770.00	
Okapa	Eastern
Highlands	1995	Awarded K3,675.00	
Lepeigu
Forestry	Eastern
Highlands	1995	Awarded K50,750.00	
	Mt Ialibu
Repeater	Southern
Highlands	1996	Submissions	
	Kondiu	Western
Highlands	1996	Pending	
	Vanimo	West Sepik	1997	Awarded K462,322.12	
	Avi Sub-
divisions	Western
Highlands	1997	Awarded K7,750.00	
	Township	Province	Year	Status	
	Konos	New Ireland	1997	Awarded K60,000.00	
	Kwikila (Part)	Central	1997	Awarded K31, 477.50	
	Mt lalibu
Repeater	Southern
Highlands	1997	Awarded K2,200.00	
	Madang	Madang	1997	Awarded K136,318.16	
	Namatanai	New Ireland	1997	Awarded K68,950.00	
	Kudjip	Western
Highlands	1998	Awarded K56,697.14	
	Drekikir	East Sepik	1998	Awarded K1,702.20	
	Sopas
Hospital	Enga	1998	Awarded K60,000.00	
	Kerema High
School	Gulf	1998	Dismissed	
	Angoram	East Sepik	1998	Claimed	

This table only singles out government towns, outstations and some other establishments, stated in Annual Reports from 1988 to 1998, taking in a period of 10 years only, and it indicates that most government outstations and towns, have been claimed or are under claim before the National Land Commission. Some township lands are the subject of either double or triple claims. Konos has been claimed and paid for twice, in 1995 and 1997. The land Era Nese, on the portion of the Poreporena Freeway, in Konedobu, Port Moresby, has been previously claimed and settlement payments made, to men like Guba Doriga and his peers, back in the late 1960s and early 1970s. Fresh compensation claims are again made by the generation after Guba Doriga - now by men like Loa Boko – this time in the year 2003 (see The National, 31 October 2003, Weekender p2). The Momote airport land, outside Lorengau, Manus Island, is also under claim by younger leaders, despite the fact that settlement payments of K23,250 had been paid in 1990. The younger leaders are now arguing that the payments made in 1990 were inadequate, hence this new claim in 2003!

Hence it is also clear that the "settlement payments" which were intended to be a one-off final settlement for the payment of State Land within the spirit and intent of the National Land Registration Act, are becoming something of a generational pursuit. It is now beginning to appear as a "generational rent" rather than a once-and-for all "settlement payment" as originally intended. It was also originally intended that once declared "National Land" and claims made and "settlement payments" accordingly made, then such land will be safely secured and registered in the National Land Register so that the State's title to the land will never be questioned again. All of these core intentions, purpose and rationale, are increasing being challenged and recast. It is clear that we have lost the rationale behind the establishment of the National Land Commission and the Register of National Land. I hold the view that in fact the manner in which the National Land Commission has been conducting itself in the recent past under Commissioner Marum, where it has been awarding millions of Kina in "settlement awards", actually fed the 'compensation frenzy' and rather makes "compensation: PNG's growth industry" a development that The National newspaper aptly refers to in its editorial of 5 March, 2004. Claims before the National Land Commission are now increasingly appearing to be a generational pursuit: there appears to be no finality to the settlement payments.

Conclusion

On 16 September 2004 Papua New Guinea celebrated 29 years of existence as a nation. The National Lands Commission was established on the basis of complaints made by indigenous Papua New Guineans to the Commission of Inquiry Into Land Matters on the eve of Independence in 1973, that the colonial administration had acquired land from the people below their value. Accordingly the CILM recommended that the National Land Commission be set up as a channel for the claims of aggrieved Papua New Guineans. The rationale was that as soon as these claims were processed through the National Land Commission, then the State would have fully secured all State land as National Land to enable the Government to freely establish national institutions and conduct public purposes for the benefit of all. After 29 years of existence as a nation, and particularly given what is now happening as described above, it is now time to reconsider and reassess the continued existence of the National Land Commission.

Let me go further and suggest that it is now time to either re-vamp and rationalize the operations of the National Land Commission, or to abolish it and channel all claims through either the Land Courts or the National Court.

Unfortunately, the very existence of the National Land Commission now appears to feed the compensation frenzy, instead of securing and safe-guarding State Land or National Land. This, then, undermines the future well-being of the nation. Irrational so-called 'customary land owners', who are actually "former customary land owners" in the context of alienated customary land, are now roaming around freely in the country and holding the country to ransom by forcing universities, schools, airports, water suppliers, and hospitals to shut down. Either way, we must address this rather irrational issue of "compensation" for alienated land in Papua New Guinea, now rather than continue to defer the issue.

References

Filer C, Henton D and Jackson R (2000) Compensation in Papua New Guinea's Mining (Port Moresby: Chamber of Mines and Petroleum).

Jackson R (1997) "Cheques and Balances: Compensation and Mining in Papua New Guinea" in Susan Toft ed. Compensation For Resource Development in Papua New Guinea (Port Moresby: Law Reform Commission Monograph No. 6).

Kalinoe L and Kuwimb M J (1997) "Customary Land Owners Right to Sue for Compensation in Papua New Guinea and the Ok Tedi Dispute" (1997) 25 Melanesian Law Journal 65.

McGavin P (1994) Economic Security in Melanesia: Key Issues for Managing Contract Stability and Mineral Resources Development in Papua New Guinea, Solomon Islands and Vanuatu (Port Moresby: Institute of National Affairs Discussion Paper 61).

Toft S ed. (1997) Compensation For Resource Development in Papua New Guinea (Port Moresby: Law Reform Commission Monograph No. 6).

Toft S and Saffu Y (1997) Attitudes Towards Land Compensation in Papua New Guinea (Port Moresby: Law Reform Commission Working Paper No. 27).