Customary Land Tenure and Registration in Australia and Papua New Guinea

Anthropological Perspectives

Table of Contents

Chapter 1. Anthropological Perspectives
Chapter 2. A Legal Regime for Issuing Group Titles to Customary Land: Lessons from the East Sepik
East Sepik Land Legislation of 1987
East Sepik Land Act 1987
East Sepik Customary Land Registration Act 1987
Results of the East Sepik Land Legislation
National Legislation for Land Group Incorporation
Land Groups Incorporation Act 1974
Results of the National Legislation for Land Group Incorporation
Issues Raised by the Legal Recognition of Customary Groups and Their Land Titles
Problems in Implementing the Legislation
Problems with the Legislation Itself
A Response
Chapter 3. Land, Customary and Non-Customary, in East New Britain
Free from Custom? Land at Sikut
Does Custom Hold Back Development, or Is It ‘Fading’?
Buying and Selling Land at Matupit: Can Customary Land Be Alienated?
Registration of Landownership and Transfer
Chapter 4. Clan-Finding, Clan-Making and the Politics of Identity in a Papua New Guinea Mining Project
Development, The Melanesian Way, and The Eight Aims
Mining, Tradition, and Legibility
Legibility and Recognition in Nenataman
Clanship as Legible Tradition
Chapter 5. From Agency to Agents: Forging Landowner Identities in Porgera
Porgera’s ‘Seven-Clan System’
Ipili Sociality
Forging Landowners: the Porgera Land Study
Discussion and Conclusion
Chapter 6. Incorporating Huli: Lessons from the Hides Licence Area
Retrospective on Incorporated Land Groups
Approaches to ILG Formation
The Hides Experience
The ‘Zone ILG’ Concept
How the ‘Zone’ Concept Fared
Conclusion: What Hides Reveals
Chapter 7. The Foi Incorporated Land Group
The ILG and the Petroleum Industry in PNG
The Proliferation of ‘New’ ILGs
The Local Clan Versus the ILG
What is Customary Law?
The Fragmentation of Foi Clans
Some Comparative Observations and Conclusions
Chapter 8. Local Custom and the Art of Land Group Boundary Maintenance in Papua New Guinea
Land, Groups, and Boundaries as Elements of ‘Custom’
Compensation and Incorporation in the Realm of Heavy Industry
The Brave New World of Customary Land Law
Land Group Incorporation in the Petroleum and Forestry Sectors, 1990–95
Land Groups in the Oil and Gas Act, 1998
The Beast’s Two Back Legs
Conclusion: African Models in the Neo-Melanesian Mindscape
Chapter 9. Determinacy of Groups and the ‘Owned Commons’ in Papua New Guinea and Torres Strait
Approaches to Identification of Traditional Owners of Land
The Handling of Proximate Titles — Papua New Guinea
The Handling of Proximate Titles — Australia
Determinacy, Bounded Groups and ‘Owned Commons’
‘Owned Commons’ Cases: Dauan and Iralim
The Collectivisation of Land at Mer Island
When Owned Commons is a Contrivance: The Case of Nauti
Determinacy of Groups
Boundedness of Groups
Were Internal Ownerships Differentiated and Boundaries Surveyed?
Were There Other Primary Claimants from the Same Ethnic Group?
Were There Secondary Claimants from Other Ethnic Groups?
Chapter 10. Outstation Incorporation as Precursor to a Prescribed Body Corporate
The Outstation Movement
Outstation Establishment
A Place of One’s Own: The Politics of Land Tenure
Local Organisation
Prescribed Bodies Corporate
Towards a Representative Structure
Local Organisation in the Contemporary Context
Chapter 11. The Measure of Dreams
The Land Claim Process
The Mining Provisions
Gold Mining Returns to the Tanami Desert
The Measurement of Dreams
Mining and the Creation of Blocks
The Site Clearance Process
The Work Area Clearance
The Mining Model of Place
Chapter 12. Laws and Strategies: The Contest to Protect Aboriginal Interests at Coronation Hill
The Land Council and the Sites Authority
The Regional Context
Liaison and Consultation
The Role of the Northern Land Council
The Contest over Aboriginal Interests
The Contest over Policy
The Jawoyn and the Custodians
Chapter 13. A Regional Approach to Managing Aboriginal Land Title on Cape York
Cape York Peninsula
Forms of Aboriginal Land Tenure on Cape York
Native Title — Prescribed Bodies Corporate
Active and Passive PBC Structures
Structural Options for PBCs in Relation to Land Trusts and Other Indigenous Landholding Entities
The Wik Subregion
The Coen Subregion
Operational Models for Land Use and Management in the Case Study Subregions
The Wik Subregion Model
The Coen Subregion Model
Managing Aboriginal Title Holding Entities at the Subregional Level

List of Figures

Figure 4-1: Nenataman location map.
Figure 4-2: Topographical and site map of Nenataman.
Figure 6-1: Percentage of landowner households dissatisfied with different types of landowner organisation, 1998–2005.
Figure 6-2: Petroleum Development Licence areas in PNG.
Figure 6-3: A simplified model of the Huli descent and residence system.
Figure 6-4: Zone ILGs proposed for the Hides licence area (PDL 1).
Figure 6-5: Zone ILG structure proposed for the Hides licence area.
Figure 6-6: Landowner preferences for benefit distribution, 2005.
Figure 9-1: Area of common interest at Hidden Valley.
Figure 9-2: Approximate number of signatories for ‘Nauti’ by year.
Figure 10-1: Approximate location of outstation groups in 2001.
Figure 10-2: General locations of Bardi and Jawi buru.
Figure 11-1: Diagram depicting places of significance for the Warlpiri in relation to the licence area in initial year of exploration.
Figure 11-2: Diagram depicting places of significance for the Warlpiri in second year of exploration with reduced licence area.
Figure 11-3: Diagram depicting broader areas of importance for Walpiri in relation to the exploration licence area in initial year of exploration.
Figure 11-4: Diagram depicting mining lease area in relation to areas of significance for Walpiri in the fifth year of mining.
Figure 12-1: Kakadu National Park, showing Coronation Hill and reduced (post-1989) Conservation Zone.
Figure 12-2: Kakadu National Park, showing stages of declaration and the original Conservation Zone.
Figure 13-1: Cape York Native Title Representative Body’s area of administration and the subregions of Wik and Coen.
Figure 13-2: Wik subregion model.
Figure 13-3: Coen subregion model.

List of Tables

Table 6-1: ILGs in petroleum licence areas, October 2004.
Table 9-1: Distribution of living descendants of the ‘Nauti’ constituent patrilines of Equta patronymic by village (in 2000).
Table 9-2: Some attributes related to commons ownership in four cases in Torres Strait and Papua New Guinea.
Table 13-1: Tenures on Cape York Peninsula showing potential for overlapping Aboriginal ownership.
Table 13-2: Model of harmonised rules for a PBC as trustee of a Land Trust.