On acquisition, section 14 converts the interest of every person in the land into a right to compensation. Part IV of the Land Act 1996 then governs how that right is turned into money.
Who may claim
Any person who had an interest in the land immediately before the date of acquisition. In practice that includes:
- the registered proprietor of a State lease;
- a lessee or sublessee;
- a mortgagee — who must elect to claim or waive;
- a holder of an easement, licence or other interest;
- customary landowners, where customary land was taken;
- a person empowered under section 17 to claim on behalf of a person under a disability.
Where a new interest is created and acquired — an easement that did not exist before — each person’s interest converts into a right to compensation to the extent it is affected.
Section 21(1) — making the claim
A person with a right to compensation may make a written claim to the Departmental Head, and shall provide such information in relation to the claim as the Departmental Head requires.
It must be in writing, it goes to the Departmental Head, and further information can be demanded.
Section 21(2)(a) — one year, and it is fatal
Compensation is not payable if a claim is not served on the Departmental Head within one year after the date of acquisition — or within such further time as the Departmental Head allows.
The date of acquisition is the date of publication of the notice in the National Gazette. Not the date you learned of it. Not the date you were served. Diarise it the moment you see the notice, and if you need longer, apply in writing for an extension before the year expires.
Section 21(2)(b) — the inconsistent-interest bar
Compensation is also not payable where the interest claimed is inconsistent with an interest claimed by another person in respect of which the State has, in good faith, paid or agreed to pay compensation.
This matters enormously for customary land. Where two groups claim the same land and the State pays one of them in good faith, the second group’s claim is barred by this paragraph. It is a powerful argument for insisting on a section 9 determination of ownership before any acquisition or payment, and for lodging a claim promptly rather than waiting for an internal dispute to settle.
Sections 21(3) and (4) — acceptance or rejection
Where a claim is made, the Minister must consider it, and:
- if satisfied the claimant has produced prima facie evidence that immediately before the date of acquisition they had the interest claimed, the Minister shall accept the claim for determination;
- otherwise, he shall reject the claim.
Within three months after a claim is made, the Minister shall, by written notice served on the claimant, accept the claim for determination or reject it — and if the Minister fails to notify the claimant, he shall be deemed to have accepted the claim for determination.
Silence works in the claimant’s favour. Keep proof of the date the claim was made.
Section 21(5) is a caution: acceptance for determination does not entitle the claimant to payment otherwise than in accordance with Division 8. Acceptance means the claim proceeds to be quantified; it is not an agreement to pay.
Section 22 — if the claim is rejected
The claimant may bring an action against the State in the National Court claiming a declaration that, immediately before the date of acquisition, they were entitled to the interest specified in the claim.
After notice to such persons as it directs, the National Court hears the action and may declare the claimant was entitled to the interest claimed or to some other interest, or dismiss the action.
An order of the National Court under section 22 is binding on the State and on all persons who had interests in the land immediately before the date of acquisition — whether or not they were represented before the court.
So a section 22 action settles entitlement for everybody, not only for the parties who turned up. If you have an interest and you hear of such an action, appear in it.
What happens after acceptance
Once a claim is accepted for determination, the amount is fixed in one of three ways:
- by agreement (Division 4);
- by arbitration (Division 5); or
- by a court of competent jurisdiction (Division 6),
on the principles in Division 3, with payment and interest governed by Division 8.
Fix the date of acquisition. Identify your interest precisely and gather the documents proving it as at that date. Get a valuation as at that date. Serve the written claim on the Departmental Head and keep proof of service. Diarise three months for the accept/reject notice, and one year for the outer limit.
Sources
- Land Act 1996 — ss 6, 14, 17, 21, 22; Part IV
- Constitution — s 53
- Claims By and Against the State Act 1996
- Minister for Lands v Frame [1980] PGSC 12; [1980] PNGLR 433
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.