How Are Customary Land Disputes Decided?

Most land disputes in Papua New Guinea are not about titles. They are about who, under custom, holds ground that has never been registered. The Land Disputes Settlement Act (Chapter 45) provides the system for resolving them.

Why there is a separate system

A dispute about customary land is a dispute about custom, which differs between provinces, language groups and societies. It is a question of fact, proved by evidence from the area, not a question of construing a deed.

The ordinary courts are poorly suited to that, and the Constitution itself points elsewhere: Schedule 2 makes custom a source of the underlying law, and the Underlying Law Act 2000 directs the courts to look to custom first where no written law answers the question. See the underlying law explained.

Step one — mediation by land mediators

The Act’s starting point is mediation, not adjudication. Land mediators are appointed for mediation areas, and are ordinarily people with standing and knowledge of the custom of the area.

• A dispute is brought to a mediator, who convenes the parties.
• The mediator works towards an agreement between the disputing groups.
• Where agreement is reached, it can be recorded and given effect.

Step two — the Local Land Court

Where mediation does not resolve the dispute, it goes to a Local Land Court. That court:

• is constituted for the area of the dispute;
• hears evidence of the custom of the place, including from mediators and from people with knowledge of the area’s history;
• is not bound by the strict rules of evidence and procedure that apply in the National Court; and
• makes an order determining the interests in the land.

PacLII carries decisions of these courts — for example New Life League Mission v Namane [2008] PGLLC 1; DC804 and Polty v Polty [2021] PGLLC 1; DC5059.

Step three — appeal to the Provincial Land Court

An appeal from a Local Land Court lies to a Provincial Land Court. The appeal is on limited grounds rather than a full re-hearing, and it is subject to a time limit fixed by the Act.

Where the National Court comes in

The National Court does not decide customary ownership at first instance. Its role is supervisory — judicial review of the Land Courts under section 155(3) and (4) of the Constitution, on grounds such as excess of jurisdiction or breach of the principles of natural justice in section 59.

See, for example, Taleokon v Apakali [2011] PGNC 114; N4386, Pauria v Tovee [2014] PGNC 316; N5538 and Kawira v Bone [2017] PGNC 164; N6802.

The Land Titles Commission

A separate body with its own jurisdiction, which appears at several points in the Land Act 1996:

• Section 5(4) — where a claim is made within three months that land declared to be State land is customary land, the Minister shall refer the matter to the Commission.
• Section 9(1) — before acquiring customary land, the Minister may apply to the Commission or a Local Land Court for a determination of ownership.
• Section 19 — the Commission exercises, for customary land, the compensation jurisdiction Part IV gives the National Court. See who decides compensation for customary land.

If your group is in a land dispute

1. Start with the mediator, not with a lawyer’s letter. The system requires it and it works.
2. Gather the evidence of custom now — genealogies, the history of gardens and settlement, boundary markers, the names of places, and the older people who can speak to them. Record it while they can.
3. Keep every order and record. An earlier determination about the same land is powerful.
4. Watch time limits for appeals.
5. Beware of side deals. Any purported sale of customary land outside section 132 is void, and money paid under one is very hard to recover.