What Are Derivative Interests in Customary Land?

Introduced land law thinks in terms of one owner with a bundle of rights. Customary land in Papua New Guinea generally does not work that way, and the law has had to accommodate the difference.

Land held in layers

On a single piece of ground there may be:

• a clan or descent group holding the land itself;
• sub-clans or families with rights to garden particular blocks;
• individuals or groups entitled to take sago, nuts or timber from named stands;
• hunting and fishing rights, sometimes held by people from another group;
• access and water rights — paths, crossings, springs;
• rights arising from past gifts, compensation payments or marriages.

These secondary rights are what the Act calls derivative interests. They are real, they are often the most economically important rights on the ground, and they are held by people who are not the owners.

Section 34F — the Registration Plan records both layers

Paragraph (b) requires three things for each derivative interest: who holds it, where it is, and what it is. That last element matters — a gardening right and a right of way are recorded as what they are, not flattened into a single category.

Section 34F(2) then confines the ownership inquiry: for subsection (1)(a) the Director shall concern himself only with the area of the land determined as being in the ownership of the Clan.

Why getting them on the Plan matters

1. They are otherwise invisible. Once land is on a register, people deal with what the register shows. An unrecorded gardening right held for generations can quietly disappear from the paper picture.
2. Objection is time-limited. The only chance to correct the Plan is the objection window of up to 90 days. After the Final Registration Plan, the position is far harder to change.
3. Compensation follows recorded interests. Where land is later acquired, section 14 of the Land Act 1996 converts the interest of every person into a right to compensation. Being on record makes proving that interest far easier — and section 21(2)(b) bars a claim inconsistent with one the State has already paid in good faith.
4. Reservations in a lease-leaseback. Under section 11(2) of the Land Act, all customary rights except those specifically reserved in the lease are suspended for the term. A documented schedule of derivative interests is exactly what a group needs when drafting that reservations clause.

The lease-leaseback problem in practice

Where a dispute about a derivative interest goes

Two different forums, and the distinction matters:

• During registration — object to the Registration Plan under section 34I, within the notice period, specifying capacity, matters, areas and grounds.
• Outside registration — a dispute about whether the interest exists under custom is a customary land dispute: mediation, then the Local and Provincial Land Courts under the Land Disputes Settlement Act, on evidence of the custom of that place.

Recording derivative interests well

1. Do it before you need it — not when a developer arrives.
2. Walk the ground with the older people, and record each interest: who holds it, where, what it permits, and how it arose.
3. Name the holders, and record how the interest passes on death under the custom of that place.
4. Include sacred sites, burial grounds and water sources — these are the rights most often lost and least easily replaced.
5. Keep the record with the Incorporated Land Group, and review it periodically.
6. Use it — in the Registration Plan under section 34F(1)(b), in any reservations clause, and in any compensation claim.