Ownership of customary land is contested across much of Papua New Guinea. Sections 4 and 160 of the Mining Act 1992 deal with what that means for a mining project.
Section 4 — the dispute does not affect the tenement
(1) Where a dispute arises as to interests in customary land or the position of boundaries of customary land, that dispute shall not affect:
(a) the right of a person to make application for and be granted a tenement; or
(b) the validity of a tenement granted.
(2) Such a dispute shall be settled as provided for by the Land Disputes Settlement Act (Chapter 45).
The Mining Act deals with the tenement. The Land Disputes Settlement Act deals with who owns the land. Section 4 keeps them apart so that a long-running ownership dispute does not indefinitely block mineral development — and so that the mining system is not asked to decide questions of customary ownership it is not equipped to decide.
Customary land disputes go to mediation, then to a Local Land Court, with appeal to a Provincial Land Court. See how customary land disputes are decided.
Section 160 — compensation where there is a dispute
(1) Where a dispute as defined in the Land Disputes Settlement Act concerning the land the subject of a tenement makes agreement on compensation impracticable, the amount of compensation payable shall be determined as provided for in section 157.
(2) The amount so determined shall be payable into a statutory trust established for that purpose, to be held therein until the land dispute has been resolved — and thereafter paid from the trust account as determined by the Warden, or subject to a compensation agreement.
| Question | Answer |
|---|---|
| Does the dispute stop the tenement? | No — s 4(1) |
| Does it stop the amount being fixed? | No — a Warden determines it under s 157 |
| Does it stop entry for mining? | Not once compensation has been determined and paid or tendered — s 155(b) |
| Who receives the money? | Nobody yet — it goes into a statutory trust |
| When is it paid out? | When the land dispute has been resolved, as the Warden determines or under a compensation agreement |
It protects the true owners, because the money is not paid to whoever asserts ownership first. It protects the miner, because paying into the trust discharges the obligation and satisfies section 155. And it protects the losing claimants from having to recover money already spent.
It also removes an incentive that has caused real harm: where compensation is paid out during a dispute, the payment itself becomes a reason to fight about ownership.
Section 157(1)(b) — claimants may ask for a determination
The holder of a tenement, or landholders claiming an entitlement to compensation, including the claimants to disputed land, may, where unable to agree, by notice to the Chief Warden request a Warden to determine the amount payable.
So a claimant to disputed land does not have to establish ownership before asking for a determination. The Warden fixes the amount; the Land Courts decide who gets it.
What a disputing group should do
- Start the land dispute process under the Land Disputes Settlement Act — mediation, then the Local Land Court. The compensation cannot be paid out until it is resolved.
- Ask the Chief Warden for a determination under section 157, whether or not you have yet been recognised as owner.
- Put your evidence in at the determination — the section 154 heads, measured areas, counted trees against the Valuer-General’s values, improvements, earnings, disruption, and social disruption.
- Confirm the money goes into the trust, and ask for confirmation in writing of what has been paid in and when.
- Do not accept a side payment to drop your claim or permit entry. Under section 154(4) and (5), compensation in consideration of permitting entry is not payable and paying it is an offence — up to K10,000 or five years’ imprisonment.
- Keep the group’s records — genealogies, boundary evidence, garden and burial sites, and any earlier decisions of a Land Court.
- Consider incorporating a land group once ownership is settled, so that the payout and its distribution are handled through a body with a constitution and a membership list.
- Get advice — the Public Solicitor, or a firm from the law firms directory.
The parallel under the Environment Act
A mine will also be a level 3 activity under the Environment Act 2000, which has its own compensation regime in section 87 — payable to owners and occupiers of, and any person with customary rights in, any private land, in relation to their several interests.
That regime covers heads the Mining Act does not name expressly, including rights to water customarily associated with the land and damage to flora and fauna. And unpaid compensation there is a ground on which the environment permit may be suspended or cancelled, on application by a person entitled.
The two regimes run in parallel, before different decision-makers, and cover overlapping but not identical ground. A group affected by a mine should be pursuing compensation under Part VII of the Mining Act and considering its position under section 87 of the Environment Act at the same time.
Sources
- Mining Act 1992 — ss 4, 154–160
- Land Disputes Settlement Act (Chapter 45)
- Environment Act 2000 — ss 72, 87
- Land Groups Incorporation Act — PacLII 1986 Revised Edition
Before relying on anything here, read the current text of the Mining Act 1992 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.