This is the first question in every land problem in Papua New Guinea, and the one most often got wrong. Get it right and the rest of the law follows. Get it wrong and you can spend a great deal of money acquiring nothing.
Section 4 — national title to land
(1) All land in the country other than customary land is the property of the State, subject to any estates, rights, titles or interests in force under any law.
(2) All estate, right, title and interest other than customary rights in land at any time held by a person is held under the State.
So there are two categories and no third. Land is either customary land, or it is State land in which people may hold interests granted by the State.
What customary land is
Section 2 defines it as land owned or possessed by an automatic citizen or community of automatic citizens by virtue of rights of a proprietary or possessory kind that belong to that citizen or community and arise from and are regulated by custom.
Four features follow, and each one matters in practice:
- It is held by groups more often than individuals. The Act’s definition of “citizen” expressly includes a land group, a customary kinship group, a customary descent group, and a customary local group or community.
- Custom decides the content of the rights — who holds them, who may use the land, how they pass on death. Custom differs profoundly between provinces and language groups, and is a question of fact to be proved in the particular area.
- Custom need not be ancient. Section 2 says so: the definition applies regardless of whether the custom has existed from time immemorial.
- Rights may be layered. One group may hold the land, another may hold rights to garden, fish, or take timber over it. “Ownership” in the introduced sense often does not describe it well.
Customary land is estimated to make up the overwhelming majority of land in the country. Nearly all of the written land law operates on the small remainder.
What State land is
Everything else. Land that was alienated before Independence, or that the State has since acquired, is the property of the State. Private parties hold interests in it — almost always a State lease for a term of years — granted by the State and recorded under the Land Registration Act.
Section 5 — declaring land to be State land
The Minister may, by notice in the National Gazette, declare that land which appears to him not to be customary land shall — unless good cause is shown to the contrary — be conclusively deemed State land at the expiration of three months from publication.
The notice must set out the name of the land, a description or plan, its position and an estimated area, and the Departmental Head must immediately give a copy to the Custodian for Trust Land.
Where, before the three months expire, a claim that the land is customary land is made to the Minister by or on behalf of a citizen, the Minister shall refer the matter to the Land Titles Commission — and the land is not deemed State land until the Commission has decided, and any review, re-hearing or appeal to the National Court has run its course.
Miss the window and the deeming is conclusive for all purposes. Watch the National Gazette, and act within three months.
Section 5(6) preserves any right, title, estate or interest in the land that is in force under, or continued in force by, an Act.
Why the distinction decides everything
| Customary land | State land | |
|---|---|---|
| Who holds it | A clan, kinship group or community, under custom | The State, with interests granted to others |
| What you can hold | Customary rights | Usually a State lease for a term of years |
| Is there a title deed? | Usually not | Yes — a certificate of title on the register |
| Can it be sold to an outsider? | No, not simply | Yes, subject to approval of the dealing |
| Who decides a dispute | Land mediators, Local and Provincial Land Courts, the Land Titles Commission | The National Court; the Land Board and its appeal route |
| Governing law | Custom, the Land Disputes Settlement Act, Schedule 2 of the Constitution | The Land Act 1996 and the Land Registration Act |
Ask for the title. If there is a certificate of title with a lease term, a purpose and a registered proprietor, it is State land. If there is no title, treat it as customary land until proved otherwise, and do not pay anybody anything until you have taken advice.
Sources
- Land Act 1996 — ss 2, 4, 5
- Land Disputes Settlement Act (Chapter 45)
- Constitution — ss 53, 54; Schedule 2
- Resena, Gaigo and Oala v The State [1991] PGSC 15; [1991] PNGLR 174
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.