South of the Fly River, in the Independent State of Papua New Guinea – Australia’s closest neighbour and the only country where we can see land from our own coastline – reside over a million Indigenous Torres Strait Islanders. Unlike the Indigenous Torres Strait Islanders in Australia, where native title is limited in scope of rights, the customary landowners in Papua New Guinea may apply to own their land entirely beneficially, either as an incorporated land group (‘ILP’) or, strikingly, as an individual. This is a part of the world where customs of our indigenous people are shared with another nation, and yet the customary landowners of Australia have limited avenues to ownership of any kind. Unlike Torres Strait Islanders in Australia, Torres Strait Islanders in PNG have, since their country’s inception, a mechanic for just compensation on compulsory acquisition of their land.

Any practitioners of native title in Australia who do not understand the complex customary land law of Papua New Guinea will have a severe gap in their knowledge. For much of the 20th century, before their independence in 1975, the geographical Papua and New Guinea was an Australian territory. It is also worth noting that the Australian Mabo decision followed, if a decade later, this shift in recognition of land for Indigenous Torres Strait Islanders be Papua New Guinea: see Mabo v Queensland (No 2). I strongly encourage Australian native title lawyers to independently research Papua New Guinean customary land law.

Registration of customary land rights grants freehold or perpetual lease title to indigenous Papua New Guineans as provided for by statute. By contrast, Australian native title rights primarily arise because of recognition, under Australian common law and the (frankly limited) Native Title Act 1993 (Cth) (‘NTA’), of pre-existing rights and interests according to traditional laws and customs. To clarify, the NTA recognises the rights and interests of Aboriginal and Torres Strait Islanders in land and waters according to their traditional laws and, importantly, customs.

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For indigenous PNG landowners (including the aforementioned PNG Torres Strait Islanders), their rights, and the factors for the expropriation of land, are provided for in the Papua New Guinean constitution (‘constitution’) and Land Act 1996 (PNG) (‘Land Act’). It serves as the legal framework governing land acquisition and the rather intricate process of determining and disbursing “just compensation” when land is compulsorily acquired for public purposes.

Where PNG law differs significantly is in recognition of land and, in events where land is compulsorily acquired by the state or a third party, financial compensation. For example, customary land may be applied for by an individual to become their own land per Torrens title. Compensation is inbuilt to the constitution and, the compensation principles are statutory: see Lands Acquisition Act 1974 (PNG) (‘LAA’), particularly sections 19, 20, 22, and 23. These principles highlight the necessity for any compulsory land acquisition to entail “just compensation on just terms”: see Papua New Guinea constitution (‘constitution’) s.53.

The various methods of land acquisition are outlined in Land Act sections 6–16 inclusive. Any land acquisition must first satisfy these elements:

First, it must serve a “public purpose”, as defined within the act. Importantly, certain circumstances, such as national defence, fall within the scope of a public purpose, so far as it aligns with section 2 of the Land Act and section 38(1)(a) of the Papua New Guinean constitution (‘the constitution’).

Second, any land acquisition must be “reasonably justified” in the sense that it should be “reasonably justifiable in a democratic society having proper respect for the rights and dignity of mankind”: constitution s.38(1)(b). What constitutes “reasonable justification” is governed, and defined, by section 39(3) of the constitution. Any other land acquisition, such that does not meet these criteria, has been deemed unconstitutional by the Supreme Court and National Courts of Papua New Guinea: Land Act s.11; see also Papua New Guinea Forest Authority v Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (No 2) (2003).

Upon the acquisition of land or chattel, the Land Act mandates that all existing interests in the property are automatically converted into a right to compensation: Land Act s.14. This conversion also extends to any newly created interests resulting from the acquisition.

To ensure transparency and uphold the rights of landowners, the Land Act prescribes that the departmental head serves a formal notice of acquisition to several stakeholders: Land Act s.15. These include the owner of the land (if any), the occupier (if distinct from the owner), and any individuals reasonably believed to have an interest in the land. Publication in a local newspaper is required, but if it cannot do so, then affixing the notice to the land itself can satisfy the requirement: see National Forest Board and Apoi (SCA 87 of 2015) pages 7–10.

In cases where the acquired land was previously registered under the Land Registration Act 1981 (PNG) (‘LRA’), the Land Act dictates that a certified copy of the notice of acquisition must be filed with the Registrar of Titles: LRA s.16. Subsequently, the registrar is responsible for registering the acquisition in a manner akin to standard land dealings, treating it as a valid transfer of the land to the state.

The compensation determination process is described in the case of Minister for Lands v Frame [1980]. Central to the process is a two-step method for assessing “just compensation”. This involves the following:

The first step is the conventional assessment of compensation, evaluating the value of the land expropriated from the plaintiffs, and preferably by independent report: see Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017).

The second step involves the adjustment of the conventional compensation amount, considering various factors such as the national goals and directive principles, the national interest, expressions of the national interest by the PNG Parliament, the interests of the person directly affected, and the overarching right of the person affected to receive compensation deemed “just” within the unique context of their case.

Vital to the compensation determination process is the identification of the expropriating authority: see Gawi v PNG Ready Mixed Concrete Pty Ltd [1984]. Typically, the expropriating authority is the PNG state or one of its instrumentalities. Section 53 of the constitution “protects citizens from deprivation of property”, though this is qualified.

Scenarios where land may be expropriated is in the invoking of emergency powers (section 233(2) of the PNG constitution), such as responding to an epidemic, mass rioting, or disputes with landowners were affecting or damaging municipal infrastructure: note Land Act s.4. Otherwise, there would be no way to disturb the residence of indigenous landowners in PNG. A real-world example was the National Pandemic Act 2020 (PNG), which regulated and restricted certain “Rights of All Persons and Special Rights of Citizens”.

However, if the regulation or restriction of the qualified right had gone “beyond” the authority given by the law, the person had constitutional right to complain to the National Court. Acquisition cannot occur if to do so would impinge, or qualify in any way, upon the right to life (section 35 of the PNG constitution) or the right to freedom from inhumane treatment (section 35 of the PNG constitution). Right to ownership, by comparison, is otherwise qualified.

Coming from what could be described as a colonised or settled country, it is striking to see the difference. With the evolution of the law, and as influenced by that coming from common law countries, it is likely that Australian native title will be directly influenced by the statutory scheme of land registration and compensation for full beneficial ownership as provided for in Papua New Guinean customary land law.

Nicholas Collier is a practitioner admitted in the Supreme Court of Queensland, the High Court of Australia, and the High Court of New Zealand. He currently works at the Legal Services Commission.