How Does the State Acquire Customary Land?

Nearly all State land in Papua New Guinea was once customary land. Part III of the Land Act 1996 governs how it stops being customary.

Section 7 — two modes of acquisition

The Minister may, on behalf of the State, acquire land (a) by agreement or (b) by compulsory process. In Part III, “acquire” includes purchase or lease — so a lease of customary land to the State is an acquisition for these purposes.

Section 8 adds that what is acquired may be an easement, right, power, privilege or other interest that did not previously exist as such in, over or in connection with the land. The State can create and take a new interest, not only take an existing one. It may also acquire chattels being used on developed land in connection with its development or production, where the Minister thinks it desirable to develop the land or maintain or increase its productivity.

Section 10 — acquisition by agreement

Customary land is acquired by agreement in accordance with section 10, and must be authenticated by such instruments and in such manner as the Minister approves. The Minister may acquire on such terms and conditions as are agreed with the customary landowners.

Two things about that test. It looks to the future as well as the present — “or likely to be required”. And it looks past the present generation, to those on whom the land may devolve by custom.

Section 10(4) provides the middle course: where the Minister is satisfied the land is not required for a certain period but may be required after it, he may lease the land from the customary landowners for the whole or part of that period rather than buying it outright.

Section 9 — establishing who owns it first

Where it is intended to acquire customary land — by agreement or by compulsory process — the Minister may apply to the Land Titles Commission or a Local Land Court having jurisdiction for a determination of the ownership of the land or of interests in it.

This is the step that prevents payment to the wrong people, and it is discretionary rather than mandatory. Where the ownership of the land is genuinely contested, landowners should press for a determination before any acquisition proceeds.

Section 9(2) — the appointed agent

Where the State acquires customary land, the Land Titles Commission or a Local Land Court may appoint an agent who may, on behalf of the customary landowners:

• execute in his own name all conveyances, transfers, releases and other instruments, and do all other acts necessary or convenient for effecting the acquisition and vesting the land in the State; and
• accept any rent, purchase money, compensation or other moneys, and distribute them to the persons entitled.

An instrument executed by such an agent is as valid and effectual as if executed by all the customary landowners (s 9(3)).

And compulsory acquisition

The State can also take customary land by compulsory process under Division 5, beginning with a notice to treat. That route is constrained by section 53 of the Constitution, which permits compulsory acquisition only for a declared public purpose, only where the necessity justifies the resulting hardship, and only on just compensation made on just terms.

Note that section 53(5)(d) of the Constitution also excludes from its protections any taking of possession or acquisition that is in accordance with custom, and section 53(5)(e) excludes ownerless or abandoned property other than customary land.

How notices reach customary landowners

Under section 135, a notice required to be given to customary landowners may be served on the Custodian for Trust Land instead. The Custodian must then, unless satisfied the landowners actually received it, take all practicable steps to serve them, post a copy in a conspicuous place on the land, and notify details in the area by any method by which it is customary to transmit orders or news there.