Set up a Custom and Lands Commission

Focus, Normal

Frank S Kolma

“NA nena angana, Na dumena, kamnya”.
That in my mother tongue translates to “my father, my brother (literally but usually means my people), my place, my time”.
The descriptions basically cover my family, my clan, my home, my land and all on it, my property, and my space. There is an esoteric aspect with regard to “time” which is hard to explain. It refers not only to periods lapsed but also the physical space which we cannot see and touch, including the spiritual realm.
The above words would be the strongest, most important, and compelling in the language, which convey ownership of everything. They convey my own and my people’s relationship to nature and to each other.
This is the traditional man’s universe.
In this world, there is no space for “gavman”, an alien name we have adopted into the language for an alien concept or entity.
There is no concept of how far up in the sky my “kamnya” extends although the rain that falls on a hot day is mine, as is the sunlight and the moonlight which come to us from further off.
There is also no concept of how far my “dumena” extends below the ground although when a landslip occurs whatever it exposes is mine.
My land extends to where the neighbour’s land begins and the boundary is agreed to by consensus and landmarks such as mountains, waterways or plants are used to mark the boundaries.
If you have survived this far, this rather confusing start is to give an appreciation of what the tribal man’s (the landowner) view might be of the current debate on the Boka Kondra Bill, which attempts to transfer ownership from the State to the landowning group.
The Mining Act in section 5 states: “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.”
A similar provision in section 6 of the Oil and Gas Act confers ownership of all hydrocarbon resources upon the State.
Mr Kondra’s bill seeks to make a simple amendment by replacing the words “are the property of the State” to “are the property of the landowner” or words to that effect.
The landowner languishing on his customary land has always been wondering why the State has “shelled” and removed all the valuable resources and left him only the shell to farm.
The State, for instance, has the right to grant Timber Rights Purchase Area (TRP) but itself recognises that the land upon which the trees grow belong to the traditional landowners – a no-go zone for the State.
The State of Papua New Guinea claims legitimacy because it has full sovereignty under the Constitution over all the territory, affairs, existence, and people of Papua New Guinea.
Therein lies the crux of PNG’s present dilemma. It has a Constitution and lesser laws which grant it ultimate authority over the whole of PNG – covering all land, water and open space within boundaries recognised by the international community as belonging to it alone, and over all the people and other resources within these boundaries. Yet in practice it has chosen to govern the smallest part of the land which has been alienated, leaving the largest portion – 97%, in the hands of the people, declaring it as traditional land.
The people, being citizens, deserve and do have a full right to expect the State to provide for their safety, comfort and wellbeing. At the same time since the State has proclaimed that their land is theirs to do as they please, they have a right to expect all on the land to belong to them. If the same State which granted them rights over customary land comes nosing around after mineral or hydrocarbon wealth on their land, it is perfectly understandable if they bristle with indignation and cry: “robbery”.
The landowner problem has nothing to do with the traditional man or his practices. It has to do with the Government’s continued inefficiency in dealing with land issues decisively.
Changing the law on who owns the minerals and hydrocarbon resources on the land will not remove the dilemma.
Indeed, vesting the resource ownership back with the landowners where it currently belongs under customary law will create a crisis so huge it will most likely fragment PNG as a nation.
What does need to happen and quickly is to colour out the grey area in the Constitution and accompanying laws with regards to customs and their relationship to the Constitution and the even graver and more difficult question of sovereign State rights over customary land and its use.
As it stands, I see a State which really controls only 3 % or 13,800 sq km of the 460,000 sq  km of land said to belong to PNG. That is the small parcel of land covered by the Lands Act and which the Department of Lands and Physical Planning has jurisdiction over. Everything else lies outside it.
Yet, at the same time, the State claims all 6.2 million or so inhabitants of the lands as its subjects and citizens. By rights, therefore, it must intrude on land which does not belong to it (customary land) to fulfil its constitutionally guaranteed duties to the citizens.
It follows that it must pay landowners to deliver roads, schools and hospitals to them. The landowners are placed by the Government’s own practice and the law in a win-win situation. They deserve to be paid for their land and for all on it. And they deserve services which are guaranteed to them by the Constitution and which is the primary obligation of Government to deliver.
Landowners equally have a legitimate claim when they claim that they are sole owners of the mineral, oil, gas and other resources on customary land. If the State wants them, it must pay for it.
Arguments can be waged for or against forever. Suffice it to say that in giving recognition to custom and customary ownership of land, the State has brought upon itself the trouble that it faces currently and will keep facing into perpetuity.
Attempts to change the law at the level of the Konda Bill will only perpetuate this argument and will, in the final analysis, should the Bill be passed into law, lead to greater problems.
The Government needs to get a great land Custom and Lands Commission together to begin the massive task of addressing these two issues which are the most sensitive and emotive as the riots of 1997 will show, and yet they form the most crucial areas of government and the way forward for PNG as a nation.
It just has got to be done.