Defending Papua New Guinea: An Interview with Brian Bunton
Born in the United Kingdom, Brian Brunton has lived in Papua New Guinea since 1964. After a career in public service, he began working with the Individual and Community Rights Advocacy Forum (ICRAF). Founded in 1993, ICRAF is a non-governmental organization of lawyers and activists dedicated to protecting human rights, community land rights and the environment.
Multinational Monitor: What are the traditional land tenure schemes in Papua New Guinea?
Brian Brunton: Ninety-seven percent of all the land in Papua New Guinea is owned customarily. That means it is generally owned by families, clans or larger customary groups. The precise sort of conceptual framework of that group varies: there are over 300 distinct language groups and another 300 distinct and different dialects in Papua New Guinea. So 97 percent of the land is fragmented into small landholding entities.
The actual legal situation is fairly confused in that the law tends to recognize the property or ownership rights of these landowning groups indirectly. Various statutes recognize that the land ownership does exist, but there is no overall Customary Land Act. That makes it rather difficult to specify exactly what is the nature of that land ownership in law. There are also a host of statutes that impinge on what one might call the sovereignty of that ownership, most notably mineral and petroleum legislation. These laws claim that the minerals and petroleum under the land are the property of the state. That type of rule is complete anathema as far as the customary landowners are concerned; it is quite clear from their perspective that they would follow the old common law rule of owning everything from the center of the earth up.
MM: If a mining company, say BHP, wants to begin mining operations, does it have to negotiate directly with the land owners, or can it deal solely with the government?
Brunton: Actually, they can deal solely with the government, and most of them do. They do a bit of public relations work on the side, some more, some less.
Exploration rights are guaranteed under the Mining and Petroleum Acts. What they say is, once you have got your exploration license, away you go; all you have to do is pay compensation for any damage you do in the course of your exploration. If there is a dispute over the extent of the damages, that is worked out before a special court. But the rights to actually walk onto somebody else's land is backed up by the state and is contained in the Mining and Petroleum Acts.
MM: How are the traditional rights of landowners being affected by the so-called Land Mobilization Project?
Brunton: The Land Mobilization Project is somewhat difficult to define, in part because it was pushed forward suddenly, and then pulled back when opposition arose.
Customary land rights have always been under pressure as far as modern law is concerned. Modern law - including the Mineral Act, the Petroleum Act and the Water Resources Act, under which the state claims control over all the country's water - hems in and tics down customary land rights, and makes it very difficult for customary landowners to enforce these rights.
Also, because custom is custom, and because it has never been written down in most cases, it is very difficult to work out in custom just what landowners' rights are.
There is a great temptation to equate customary rights with recognized common law rights. That is ludicrous, because custom and common law are two completely different systems. Common law is a legal system run by a state; customary laws arc normative rules generated by communities, which are non-state in their overall social function. This poses another problem for modern law; it becomes very difficult then to administer common law rules of state, particularly the capitalist state, in a non-property-owning social grouping.
The land mobilization program came first of all out of a general need to renovate the Department of Lands, whose primary responsibility is to look after that 3 percent of land which has been alienated [that is, privately owned and subject to transfer]. …