Part IV of the Land Act 1996 is written in terms of the National Court. Section 19 then redirects it for customary land.
Except where the contrary intention expressly appears, the jurisdiction conferred by this Part on the National Court may, with the necessary modifications, be exercised in relation to customary land by the Land Titles Commission, and references in this Part to that Court shall be read as references to the Commission accordingly.
What that changes
Read section 19 into the rest of Part IV and the customary landowner’s route becomes:
| Step | Other land | Customary land |
|---|---|---|
| Claim made to | Departmental Head | Departmental Head |
| Claim rejected — declaration of entitlement (s 22) | National Court | Land Titles Commission |
| Adjusting rights and liabilities (s 20) | National Court | Land Titles Commission |
| Declaring the basis of assessment (s 20(3)) | National Court | Land Titles Commission |
| Determination of the amount (s 30) | National Court or District Court | Land Titles Commission (as “court of competent jurisdiction” under s 6) |
| Order for payment out (s 46) | National Court | Land Titles Commission |
Note also section 6, which defines “court of competent jurisdiction” for Part III: in relation to customary land — the Land Titles Commission.
Ownership has to be settled first
The recurring difficulty with compensation for customary land is not the amount. It is who is entitled to it.
Two provisions bear directly on this:
- Section 9(1) — where it is intended to acquire customary land, the Minister may apply to the Land Titles Commission or a Local Land Court for a determination of the ownership of the land or of interests in it. This is discretionary, and landowner groups should press for it.
- Section 21(2)(b) — compensation is 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.
If two groups claim the same land and the State pays one of them in good faith, the other group’s claim is barred by section 21(2)(b) — even if they turn out to have been the rightful owners. Internal disputes must be dealt with alongside the claim, not before it. Lodge the claim within the year, and resolve entitlement in the Commission.
The appointed agent, and the money
Under section 9(2) the Commission or a Local Land Court may appoint an agent who may, on behalf of the customary landowners, execute instruments in his own name and accept and distribute rent, purchase money or compensation.
Section 9(4) is the provision every landowner group should know: the State is not bound to see to the application of any money paid to an agent, and the agent’s receipt is a sufficient discharge. Once the money reaches the agent, the State is done. Misapplication is a claim against the agent.
Take an active interest in who is appointed agent, and settle how distribution will work in writing before the money moves. Consider having the group’s side held by an incorporated land group, which is a legal entity with members, rules and accountability, rather than by an individual.
How notices reach a landowner group
Under section 135, a notice required to be given to customary landowners may be served on the Custodian for Trust Land. 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 there.
And under section 134 it is the duty of the Custodian, in any matter under the Act, to take such action as seems necessary or desirable — or as ordered by the National Court or the Commission — to establish, further or protect the interests of customary landowners. That duty can be invoked.
Where ordinary customary land disputes go
Compensation for acquisition is one thing. A dispute between groups about who owns customary land, where no acquisition is involved, follows a different path — mediation by land mediators, then the Local Land Court and, on appeal, the Provincial Land Court, under the Land Disputes Settlement Act (Chapter 45). See how customary land disputes are decided.
Sources
- Land Act 1996 — ss 6, 9, 19, 20, 21, 30, 46, 134, 135
- Land Disputes Settlement Act (Chapter 45)
- Constitution — ss 53, 54
- Resena, Gaigo and Oala v The State [1991] PGSC 15; [1991] PNGLR 174
- Kawira v Bone [2017] PGNC 164; N6802
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.