This is the provision a landowner group most needs to understand before agreeing to tenure conversion. Section 16 of the Land (Tenure Conversion) Act 1963 is short and comprehensive.
The three limbs of section 16
Upon the making of a conversion order — but subject to any decision on review or appeal under Part V of the Land Titles Commission Act 1962 —
(a) the land ceases to be customary land, and the land, any right to its ownership or possession, and any other right, title, estate or interest in or in relation to it, cease in all respects to be subject to or regulated by custom;
(b) all rights, titles, estates and interests — whether legal or equitable, whether arising from or regulated by custom or otherwise, and whether in rem or in personam — subsisting before the date of the order are abolished, other than those specified in the order; and
(c) the order has effect as though the Registrar had taken the action referred to in section 11(1)(a), (b) and (d) — whether or not that action has been taken.
Paragraph (b) — the sweep of the abolition
The abolition covers rights legal or equitable, arising from or regulated by custom or otherwise, and whether in rem or in personam. It is drafted to leave nothing standing.
The only survivors are those specified in the order. Everything a group wants to keep must therefore be written into the conversion order itself — under section 11(1)(b), which directs the Registrar to enter on the title any lease, encumbrance or other estate or interest less than a fee simple which the Commission thinks should be entered.
The practical consequence for the rights that matter most in daily life is stark. Gardening rights, sago and nut rights, hunting and fishing rights, paths and access, water sources, burial grounds and sacred sites — derivative interests of exactly the kind Part IIIA registration is designed to record — are abolished on conversion unless they are specified in the order.
Before deciding an application or making a conversion order, the Commission shall assure itself that all persons interested understand the effect — both in relation to the rights by custom which would be abolished and in relation to the rights which would be created.
That obligation exists precisely because section 16(b) is so comprehensive. A group should insist on it being discharged properly, and should come to the hearing with a written schedule of the interests it wants entered under section 11(1)(b).
Paragraph (c) — the order operates immediately
The order takes effect as though the Registrar had already registered the fee simple, entered the lesser interests and taken any further action — whether or not that action has been taken.
So the legal position changes on the making of the order, not on the Registrar acting. There is no gap in which the land is neither customary nor registered. It also means an administrative delay at the registry does not revive customary rights that section 16(b) has abolished.
The opening words — review and appeal
Section 16 is expressed to be subject to any decision on review or appeal under Part V of the Land Titles Commission Act 1962. That is the route by which a conversion order is challenged, and it is the reason to act promptly if you say the order should not have been made.
Recall also the conditions the Commission had to be satisfied of under section 9 — in particular that all persons interested in the land are in agreement, and the hard limit in section 9(2) that no order is to be made over land which should remain customary land to meet the need for production of food for the owners’ own consumption.
Section 16A — no substitute lease afterwards
Land the subject of a conversion order shall not be converted into a substitute lease under the Land (Ownership of Freeholds) Act.
So the two conversion regimes do not stack. Land converted from customary tenure into a fee simple cannot then be run through Part IV of the Freeholds Act to become a substitute State lease.
That matters for a practical reason. Freehold acquired on conversion remains subject to section 56(1)(b) of the Constitution — acquisition reserved to citizens — and section 16A closes the route by which a holder might otherwise convert into a more freely dealable leasehold.
Sections 18 and 19 — how the Commission sits
- Section 18 — all hearings shall be held in public.
- Section 19 — except with the consent of the parties, all hearings shall be held as close to the land concerned as is reasonably practicable.
A decision that abolishes customary rights should be made where the people affected can attend and be heard, not in a distant town. Section 19 works with section 8(4), under which the Commission must arrange for interested parties to be shown the boundaries and any boundary marks on the land before a hearing.
Before a group agrees to conversion
- Understand that custom ends. Section 16(a) removes the land from customary regulation entirely.
- List every interest you want to keep, and press for each to be specified in the order under section 11(1)(b). What is not specified is abolished.
- Check the food-production limit in section 9(2) — land needed for subsistence gardens should stay customary.
- Confirm that everyone interested actually agrees, and object under section 8(2)(c) if the application misrepresents that.
- Attend the hearing — it is public, and close to the land.
- Note the Part III restrictions that will be endorsed on the title: minimum area and frontage, no more than six owners, Land Board consent for transfers or leases over 25 years, and the 25-year cap on a mortgagee’s possession.
- Get advice for the group — the Public Solicitor, or a firm from the law firms directory.
Sources
- Land (Tenure Conversion) Act 1963 — ss 8–11, 16, 16A, 18, 19; Parts II and III
- Land (Ownership of Freeholds) Act (Chapter 359)
- Land Registration Act (Chapter 191) — ss 33, 104; Part IIIA
- Constitution — s 56; Schedule 2
- Underlying Law Act 2000
Review and appeal proceed under Part V of the Land Titles Commission Act 1962, which is not carried in the PacLII databases; no direct link is given rather than an unverified one.
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.