This is the provision that underlies every mining dispute in Papua New Guinea, and the one most often misunderstood by people whose land a mine is on.
(1) All minerals existing on, in or below the surface of any land in Papua New Guinea, including any minerals contained in any water lying on any land in Papua New Guinea, are the property of the State.
(2) Nothing in subsection (1) is to be construed as an additional acquisition of property in relation to section 53 of the Constitution beyond that which prevailed under the repealed Acts and all previous Acts.
Land and minerals are separated
Owning land in Papua New Guinea — whether under customary tenure or a State lease — does not give you the minerals under it. The two are legally separate:
- The surface may be customary land held by a clan, or State land held under a lease.
- The minerals are, and always have been, the property of the State.
The same separation appears in section 82(3) of the Land Act 1996, which implies into every State lease a reservation to the State of all minerals and of all petroleum, together with rights of entry to search for and recover them.
Why subsection (2) is there
Section 53 of the Constitution protects against unjust deprivation of property and requires just compensation on just terms for a compulsory acquisition. If section 5(1) were read as taking minerals from landowners in 1992, it would raise an immediate constitutional question.
Subsection (2) forecloses that argument. It says section 5(1) is not an additional acquisition beyond what already prevailed under the repealed Acts and all previous Acts. In other words, the Act is declaring an existing position, not creating a new one — State ownership of minerals long predates the 1992 Act.
Section 5(2) answers the question whether section 5 itself effected an acquisition. It does not answer what compensation is payable for the surface damage, occupation, and loss of use that mining causes. That is dealt with separately, and generously, in Part VII — Compensation to Landholders.
What landowners do keep
State ownership of minerals is not the end of landowner rights. Under the Mining Act and related law, landholders retain:
- Ownership of the surface, and the customary rights that attach to it;
- A right to compensation for damage, loss of use, disturbance and improvements — Part VII;
- Protections for dwellings, gardens, burial grounds and sacred sites, which cannot simply be entered or worked;
- A place at the development forum before a special mining lease is granted, and a share in the benefits distributed under a memorandum of agreement;
- A statutory voice under section 5(d) of the Environment Act 2000, which requires all persons exercising powers under that Act to recognise and provide for the role of landowners in decision-making about the development of the resources on their land.
Sections 6 and 7 — all land is available, unless reserved
Section 6: subject to the Act, all land in the State, including all water lying over that land, is available for exploration and mining and for the grant of tenements over it. There is no category of land that is automatically off-limits.
Section 7: where the Minister considers it in the best interests of the State, the Minister may by notice in the National Gazette reserve land from exploration or mining, effective from the date of publication. The notice must describe the land by latitude and longitude and comprise sub-blocks.
A reservation does not affect a tenement or an application already registered before publication, an application to extend the term of such a tenement, or the right of a person to apply and have the application registered.
Section 5A — the data repository
A more recent addition requires the State to maintain a repository for all mineral and geological data with the Mineral Resources Authority. Tenement holders and others in possession of mineral and geological data must submit it, and every operating mine must transmit live data on mineral production, extraction and sales to a central monitoring hub.
Failure to comply with section 5A is an offence carrying a fine not exceeding K1,000,000 or imprisonment for up to four years, or both, with a default penalty of K100,000 for every day the offence continues.
Sources
- Mining Act 1992 — ss 5, 5A, 6, 7; Part VII
- Mineral Resources Authority Act 2018
- Land Act 1996 — s 82(3)
- Environment Act 2000 — s 5
- Constitution — ss 53, 54; Fourth National Goal
- Chief Collector of Taxes v Bougainville Copper Ltd [2007] PGSC 1; SC853
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.