The Land (Tenure Conversion) Act 1963 does something no other PNG land statute does: it converts customary land into registered land held in fee simple, without the State acquiring it first.
What conversion actually does
A conversion order shall direct the Registrar of Titles —
(a) to register in the Register established under the Land Registration Act the applicant or another person as the owner of an estate in fee simple in some or all of the land;
(b) to enter on that title any lease, encumbrance or other estate or interest less than a fee simple in favour of the applicant or another person which the Commission thinks should be entered; and
(d) to take such further or other action as to the Commission seems just and proper.
Two consequences follow, and both are significant.
- The land ceases to be customary land and becomes registered land, with all that brings — a certificate of title, indefeasibility under section 33, and the ordinary machinery of transfers, mortgages and caveats.
- Rights by custom are abolished and replaced by the registered estate. Section 10(4) requires the Commission to satisfy itself that everyone understands the effect “both in relation to the rights by custom which would be abolished and in relation to the rights which would be created”.
Conversion is not a recording exercise. It ends customary tenure over the land and substitutes a fee simple. A group considering it should understand that the land will thereafter be governed by the Land Registration Act rather than by custom, and that customary rights over it — gardening, access, sago, hunting — are abolished rather than carried across, except so far as the Commission enters them under section 11(1)(b).
Section 7 — who may apply
Subject to the Act, a citizen may apply to the Commission in the prescribed form for registration in his name of any customary land or of an interest in customary land.
Note the difference from Part IIIA registration under the Land Registration Act, where only representatives of an Incorporated Land Group may apply. Here an individual citizen may apply — though as section 9 shows, the agreement of everyone interested is what actually determines the outcome.
Section 8 — the conversion plan and notice
When the Commission decides an application should be dealt with, it shall:
- (a) prepare a conversion plan of the area;
- (b) publish notice of the application and the plan by such means as will, in the circumstances, ensure reasonable notice to all persons affected or likely to be affected; and
- (c) specify in the notice a period not less than 30 days within which a person may object.
The plan shall show the location and boundaries of the land, and as far as practicable the ownership or alleged ownership (s 8(3)).
Before proceeding to a hearing, the Commission shall arrange for any parties interested to be shown the boundaries of the land and any boundary marks placed on it.
A sensible and practical requirement: boundary disputes are resolved on the ground, not on paper. Section 13 then provides for permanent marking of boundaries.
On the notice obligation, compare section 135 of the Land Act 1996, which requires notices to customary landowners to be given by any method by which it is customary to transmit orders or news in the area. The same practical concern runs through both.
The two grounds of objection
Under section 8(2)(c), a person may object on the ground that:
- they claim ownership of, or an interest in, the land and are not included in the application as owning or having that interest; or
- they are incorrectly represented in the application as being agreeable to the registration.
The second ground is the important one for a group. An application that asserts everyone has agreed, when they have not, is met by an objection saying exactly that. See how objections are dealt with.
Section 9 — agreement is the condition
After the objection period, the Commission considers the application and objections, and must be satisfied of a number of matters — including that the land is customary land and that all persons interested in the land are in agreement with the application.
The Commission shall not make a conversion order over land which should, in order to meet the need for the production of food for their own consumption by some or all of the owners, remain customary land.
This is a hard limit, not a discretion. Land that the owners need for subsistence gardens is to stay customary. It echoes National Goal 4 and section 5(b) of the Environment Act 2000, which requires the maintenance of subsistence food sources to be recognised and provided for.
Conversion or customary land registration?
| Tenure conversion (1963 Act) | Part IIIA registration | |
|---|---|---|
| Who applies | A citizen | Representatives of an ILG |
| Decided by | The Commission | The Director of Customary Land Registration |
| Objection period | Not less than 30 days | Not more than 90 days |
| Result | Estate in fee simple on the Register | Customary ownership recorded; land stays customary |
| Customary rights | Abolished, save as entered under s 11(1)(b) | Preserved; derivative interests recorded |
| Can it then be sold? | Yes — subject to s 56(1)(b) of the Constitution | No — section 132 still applies |
Section 11(2) — the title carries restrictions
On a title registered under a conversion order, the Registrar of Titles shall endorse a statement that the title is subject to the conditions and restrictions imposed by this Act.
Those restrictions — principally the rules against fragmentation in Part III — travel with the land and appear on the face of the title. Anyone buying converted land must read them.
Sources
- Land (Tenure Conversion) Act 1963 — ss 7–13; Part II
- Land Registration Act (Chapter 191) — ss 33, 82; Part IIIA
- Land Act 1996 — ss 132–135
- Constitution — s 56; Preamble (National Goal 4)
- Land Disputes Settlement Act (Chapter 45)
Several provisions of the 1963 Act, including sections 5 and 6 on adjudication areas, are shown as repealed in the consolidated text. Read the current version before relying on any procedure.
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.