Land decisions in Papua New Guinea pass through several hands, and knowing whose decision you are dealing with tells you what you can do about it.
The Minister
The Minister responsible for lands holds the substantive powers under the Land Act 1996:
- Grants State leases (s 65), normally on a Land Board recommendation.
- Acquires land on behalf of the State, by agreement or compulsory process (s 7).
- Declares land to be State land (s 5) or, going the other way, declares Government or trust land to be customary land (s 133).
- Exempts land from advertisement (s 69(2)) — one of the more consequential discretions in the Act.
- Forfeits leases for breach of condition (Part XV).
The Departmental Head
The Departmental Head of the Department responsible for lands runs the machinery: advertising available land in the National Gazette (s 68), publishing the names of successful applicants (s 74), issuing Letters of Grant (s 75), extinguishing granted applications where the acceptance is not returned (s 77), and lodging notices of acquisition with the Registrar of Titles (s 16).
Part XXIII allows the Departmental Head to delegate powers and functions.
The Land Board
Established by section 55, consisting of a Chairman and other members appointed under the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, with power for the Minister to appoint additional members for particular localities or types of lease, and Deputy Chairmen.
Except where the Minister may make a direct grant, the Land Board shall consider all applications for the grant of leases investigated and referred to it by the Department, and all other matters remitted to it by the Minister. It recommends to the Minister who should get a lease. It does not itself grant.
Section 58 sets the procedure, and the timing is worth knowing:
- at least seven days before a meeting, the Chairman publishes in the National Gazette a list of the applications, matters and lands to be dealt with;
- the Chairman notifies by post every person he considers interested;
- the meeting is held not less than seven nor more than 42 days after that publication;
- the Board deals with the matters, hears any objections, and reports to the Minister within 14 days;
- three members, one being the Chairman or a nominated Deputy Chairman, are a quorum; matters are decided by majority, and the person presiding has a deliberative and a casting vote;
- the person presiding may exclude the public from the meeting.
Board members must take an oath or affirmation of office before entering on their duties, unless they are public servants appointed to the Board (s 56).
See appealing a Land Board decision.
The Registrar of Titles
The Registrar operates under the Land Registration Act (Chapter 191), not the Land Act. The Registrar keeps the register, issues certificates of title, registers transfers, leases, mortgages and caveats, and has statutory powers to correct the register. See the Torrens system in PNG.
The two Acts meet at registration: the Minister executes a State lease and forwards the original and a duplicate to the Registrar (s 76), and the Departmental Head lodges notices of compulsory acquisition with the Registrar, who gives effect to them as if they were a transfer to the State (s 16).
The Custodian for Trust Land
An office under the Land Registration Act with a specific protective function under the Land Act.
In connection with any proceedings, matter or thing under the Act, it is the duty of the Custodian for Trust Land to take such action as seems necessary or desirable, or as ordered by the National Court or the Land Titles Commission, to establish, further or protect the interests of customary landowners.
Section 135 makes the Custodian the fallback for service. Where a notice must be given to customary landowners, it may be served on the Custodian instead — and 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 in that area.
That last requirement is unusual and sensible: the Act recognises that a Gazette notice is not how news travels in most of the country.
The Land Titles Commission and the Land Courts
Disputes about the ownership of customary land do not go to the Minister or the Land Board. They go to the Land Titles Commission, or to Local and Provincial Land Courts under the Land Disputes Settlement Act (Chapter 45), which begins with mediation by land mediators. See how customary land disputes are decided.
Under section 9 of the Land Act, where the State intends to acquire customary land it may apply to the Commission or a Local Land Court for a determination of ownership before acquiring.
A Land Board recommendation has its own appeal route. A Ministerial decision is generally challenged by judicial review in the National Court. A Registrar’s decision has remedies under the Land Registration Act. A customary ownership question belongs to the Land Courts or the Commission. Identify the decision-maker first.
Sources
- Land Act 1996 — ss 5, 7, 9, 16, 55–58, 65, 69, 74–76, 133–135
- Land Registration Act (Chapter 191)
- Land Disputes Settlement Act (Chapter 45)
- Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] PGSC 96; SC2280
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.