The freehold restriction is often described as “citizens only”. The constitutional text is narrower than that, and the difference matters to a substantial number of people.
Section 56 of the Constitution
Section 56 of the Constitution reserves certain rights and privileges to citizens, and it does so in terms that exclude citizens who hold dual citizenship. Paragraph (b) — the acquisition of freehold land — is one of the rights so reserved.
- Are you a citizen of Papua New Guinea?
- Do you also hold another citizenship?
A person answering “yes” to both is a citizen for most purposes, but is outside the class to whom the freehold right is reserved.
Papua New Guinea’s constitutional and statutory provisions on citizenship — including on dual citizenship — have been the subject of amendment. Read section 56 and the citizenship provisions in Part IV of the Constitution as they currently stand, together with the Citizenship Act (Chapter 12), before acting. This article states the framework, not the position of any particular person.
It restricts acquisition
Section 56(1)(b) is directed at the acquisition of freehold land. That framing is why the Land (Ownership of Freeholds) Act devotes a whole Division to interests that are not treated as acquisitions:
- a life estate (s 6);
- interests held by an executor, administrator, trustee or trustee in insolvency, so far as not beneficial, and interests arising by operation of law or court order (s 7);
- the additional interest on converting an equitable interest into the legal one (s 8);
- the additional interest arising from registration (s 9);
- title by survivorship between joint tenants (s 12);
- a mere power of sale under a mortgage or charge (s 13); and
- interests under contracts made before Independence Day (s 14).
These provisions prevent the restriction operating capriciously. A person does not acquire freehold by outliving a joint tenant, and a personal representative does not acquire it beneficially by taking a grant. Whether a subsequent dealing is caught is assessed on its own terms — that is what section 5 makes clear.
Section 4 — indirect interests are caught
Section 4 of the Freeholds Act treats ownership of an indirect interest in freehold land as freehold ownership. An indirect interest is one that in law or in equity confers or includes powers or rights equivalent to those of an owner of freehold land — and “interest” there extends to any right, power or privilege in, over or in connection with land conferred by any instrument or transaction.
Holding through a nominee, a trust, an option or a control agreement therefore does not take the arrangement outside section 56(1)(b). And an ordinary company is not a citizen corporation, so incorporating does not help either.
What is available instead
The restriction bites only on freehold. It does not close off land holding generally.
| Tenure | Restricted by s 56(1)(b)? | Notes |
|---|---|---|
| State lease | No | A term of years, outside the s 3 definition of freehold. The ordinary commercial tenure |
| Sublease of a State lease | No | Registrable; mortgagee consent needed if the head lease is mortgaged |
| Tenancy | No | Three years or less binds a proprietor even unregistered |
| Freehold | Yes | Reserved to citizens who do not hold dual citizenship |
| Customary land | Separate regime | Section 132 of the Land Act confines dealings to citizens in accordance with custom |
This is why the overwhelming majority of registered land in the country is held under a State lease, and why the Register of State Leases is where nearly all dealings happen.
If you already hold freehold
Part IV of the Freeholds Act provides the route out: apply for a substitute State lease. Approval shall not be unreasonably withheld, conditions must be reasonable, and a person aggrieved may object to the National Court, which can direct the Minister to grant.
Conversion turns an interest that is hard to deal with into one that is freely dealable — subject, of course, to the Land Act controls that come with a State lease.
Get advice on your own status
Citizenship status, dual citizenship, and the effect of section 56 on a particular transaction are fact-specific and the law has moved. Before buying, inheriting, or structuring anything that touches freehold, confirm your position against the current text of section 56 and Part IV of the Constitution — and take advice. The Public Solicitor, or a firm from the law firms directory, is the place to start.
Sources
- Constitution — s 56; Part IV (Citizenship)
- Land (Ownership of Freeholds) Act (Chapter 359) — ss 3–15; Part IV
- Citizenship Act (Chapter 12)
- Land Act 1996 — ss 2, 132
The constitutional provisions on citizenship, including dual citizenship, have been amended. Read the current consolidated text before relying on this summary in a particular case.
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.