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23 April 2011

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Martyn’s article goes to the very crux of the land title problem issues facing PNG today and as such deserves a more detailed response than a short broadside of one liner comments.

However, if one wants to summarise the issue in a bullet point format then the following may provide the required answers:

-- It would appear that the present PNG government does not follow the required legal procedures in their dealings with customary land.

-- A basic tenet of land law requires that any person having dealings with land must have a legal recorded interest in the land.

-- The government does not appear to have any legal recorded interests in the lands currently being developed for mining and agriculture purposes therefore could not be seen as having any rights to being involved in such dealings.

-- As there has been no resolution as to having the issue of customary land rights legally recorded therefore the owners of such customary lands would in the absence of any legislation available have what could only be described as absolute title over those lands which by inference is full sovereignty allowing them to do what ever they want with that land.

-- The correct procedures which the government should have followed is that model that was conducted by previous administrations pre independence that is: Purchasing the land from the customary owners then after ownership was legally transferred to the State issue subsequent 99 year leases over portions of the land acquired.

-- This system of only issuing 99-year lease preserved the legal rights of the original customary owners of those lands at the expiry of the subsequent 99-year leases granted.

-- This was the practice used when the oil palm resettlement scheme was introduced in West New Britain in the mid 1960’s.

The issue of land ownership in PNG, or for that matter in Melanesia, is a vexing one as Martyn has explained.

Given sufficient discussion and enough generations it might be possible to gradually find a solution to this problem.

Harry has drawn attention to how the issue of traditional land ownership has been managed in Australia now Native Title has been accepted into that model. However, whenever the issue of wealth distribution is overlaid on top of this structure, there has to be a very careful and impartial trusteeship.

My understanding of pre Independence land alienation process was that the PNG Administration, and at Independence the PNG Government, was granted a temporary lease on a block of land which could then be leased to a business.

For a limited time control over the use of that block of land was effectively transferred from the traditional owners to the government of the day.

A majority of the traditional owners had to agree in writing that they would temporarily relinquish control over the agreed portion of their land.

If at any time there was a disagreement over the use of that land, the government could simply resume temporary ownership and dismiss the contracted lessee and, if necessary, transfer ownership back to the traditional owners.

Now that may be very well if traditional land owners had a benign and impartial government organisation to negotiate with which could be depended upon to act in their interests. Can that now be said?

The mounting frustration of foreign business to be able to ‘develop’ the potential of PNG’s natural resources is nothing new.

Dealing with a bewildering set of conflicting priorities and the traditional Melanesian communal decision-making was a big ask for many foreign businesses given the relatively simple domestic arrangements in their homeland.

From the mid 1970’s it seems that PNG government representatives were prepared to give lip service to the conduct of approved land alienation procedures and to turn a blind eye to fast track development initiatives.

In order to bypass recognised yet complex and murky land alienation, a new process has emerged. Direct, large scale land leases are being sold to traditional land owners as a way to sign up for a ‘quick buck’ with no work involved.

Yet who has and can maintain control of the land after a lease has been signed? The PNG government appears to be excluded from even this part of the process.

Let's consider the underlying reasons why Sir Julius Chan wanted a review of the PNG mining and petroleum acts. Corruption, unfair channelling back of generated revenue etc...

I know that 22.5% and 30% are equity shares for oil/gas and mineral ores respectively that the government can hold to participate in any such petroleum or mining ventures.

What Julius Chan is pushing for is good and the most fair thing to do because his intention is to channel the benefits to the people.

Figuratively, 22.5% and 30% must be split so resource owners get half of that benefit, the government can hold half to manage PNG's sovereignty.

This is how simple the proposal to review the Mining Act is interpreted instead of commentators' use of highly savvy vocabularies and long grammatical sentences to explain situations and scenarios.

Give the big chunk to resource owners, empower people. Money is fluid, it does not stay in one place.

Martyn - You raise some very interesting issues in your most recent article and once again your concise and articulate message shines through.

It would seem that the thorny issue of customary land ownership has never really been addressed properly post independence reflecting oversight by the founding fathers of the PNG constitution.

PNG unfortunately inherited many of its current legislation provisions from Australian model legislative frameworks, which were later, found to inappropriate to PNG’s future needs.

Here in Australia, the Australian constitution is quite clear on defining the separation of powers between the States and the Commonwealth of Australia.

In land issues particularly such separation of powers clearly defines that the States not the Commonwealth of Australia retain the control of all matters concerning land title.

The majority of lands in Australia are held under freehold or Estate in fee simple originating from the original deed in grants issued.

Most owners of such freehold title would not realise that freehold title does not bestow absolute title to the lands as the original title grants contain provisions for a peppercorn rental, as the possible granting of absolute title to lands would result in those owners obtaining full sovereignty rights over the lands.

The associated grant provisions of an estate in fee simple under terms of the original land grants not only allowed the State the right through resumption processes to later compulsory acquire those lands as well s stipulating that that such grants also entitled the State the rights to retain ownerships of any resources under the land.

The Commonwealth of Australia on the other hand does not hold any rights to resume lands as they hold no claims of sovereign rights over state lands but does provide the Commonwealth of Australia to compulsory acquire lands with the provision that such acquisitions be made on fair and just terms.

Provisions of acquisition of lands by the Previous Territory Government of PNG, pre independence, were to my knowledge, conducted under the terms of the Commonwealth of Australia model.

Similar provisions for what are defined as State and Commonwealth of Australia spheres of responsibility are also clearly defined under the Cwth constitution with the states retaining the rights of land administration, police, health, education as key examples.

This of course has not prevented the Commonwealth of Australia from exerting its interests in these matter by utilising other provisions of the constitution, albeit those measures being rather legally ambiguous, as shown by previous interventions into state issues such as timber logging where the Commonwealth of Australia used provisions of their export responsibilities to usurp defined State responsibilities thus forcing the States to comply with their policies.

Such interventions over past years has seen the Commonwealth of Australia intrude into State responsibilities in the areas of health, education, water resources and forestry practices and more recently the Commonwealth of Australia endeavours to take over the States rights to mining royalties through the implementation of the proposed Mining Resource Tax.

If approved and after the States agree to rescind their rights to collecting mining royalties, the Commonwealth of Australia will collect the previous mining royalty taxes under provisions of the Taxation Act and then redistribute those taxes back to the States under similar GST arrangements.

It would be that PNG has attempted to follow such a similar model to that currently proposed by the Australian government however the PNG model suggests the resulting incomes gained has not flowed back to those who are legally entitled to a share.

Understandably most States, especially those with large mining resources, are not happy with such proposed arrangements.

Drawing parallels to the current situation in PNG is therefore not prudent as looking for precedents regarding indigenous land rights in Australia does not provide any clear relevant answers to traditional land rights issues in PNG as shown in the findings of the Mabo case.

In that matter the wise judges decided in their findings that the previous indigenous people of Australia retained only a legal interest in the lands, which did not bestow full title.

Ensuing from this case, most States then agreed to hand back ownership of traditional lands to the original indigenous owners however such transfer of ownership title was made on the basis of Deed of Grant in Trust arrangements which is not freehold title and also gives the States the final right to decide how such lands may be used.

It may be a fine point of law, but it would seem to apparent that if the government of PNG had not acquired any traditional owned lands in the first instance, then by inference they would not have any legal rights to the future usage of customary held lands and despite any legislation enacted later, by inference any legal ownership rights to the resources lying under the ground on customary held lands.

And further it could be argued that any decisions made by the Central Government regarding such issues should had resolved by public plebiscite through a referendum.

As mentioned the issue of resolving traditional land ownership claims is one that may never be resolved due to disputes as to boundary lines, however there were provisions under earlier land legislation provisions for the legal recognition of customary lands with title issue made under types of tenant in common type arrangements that is titled vested in the names of all clan groups.

A first step may be possible by implementing such recognition of customary lands through some form of title issue similar to the model of the Deeds of Grant in Trust applying in Queensland.

Such an approach could be modelled on the registration of such lands not disputed with provision that disputed boundary lands adjoining that agreed to could then be declared as disputed lands excluded from any survey plans with the ownership of those disputed land areas then later resolved through mediation and the land courts.

Another course of action which may be fruitful would be for the central government to hand over the responsibility of land administration to the provincial governments and let those government bodies sort out these issues.

That way the decision making process would probably be more productive as the decision making process would be a grass roots rather than at central government level.

Like most things in PNG, initiating such reforms would rely on some one taking the first initiative.

My senior high school Economics students in the 1970s and 1980s were shocked to hear that the State had ownership of the minerals under their village land.

The whole process of pegging mining claims and the purchase of mining rights was then explained. The huge amounts of capital needed to set up a mine and the royalty payments that had to be paid by the miner were also explained.

I think Martyn has summed up the debate well.

Today mining companies are discovering more and more minerals and other raw materials throughout PNG, often in areas where the population has not had a lot of time exposed to the "Anglo-Australian colonial view" of the ownership of natural resources.

One would hope that the areas where minerals are being discovered will be given plenty of help in understanding the process. I feel education is the key.

Today there are PNG people who have been well trained in all the technological terms used by mining companies. This was probably not so back in the days of the contracts to mine in Bougainville. PNG people were confused by it all.

Over recent years I know these PNG experts on mining contracts have been employed to help the village land-owners understand the whole process and to check that mining contracts are fair to all and understood by all.

The fact that the government is allowing some of this money from the mining profits to be lost to corruption is another matter which also has to be dealt with as soon as possible.


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