Strategies for Nationhood (PNG 1974) and the Papua New Guinea constitution of 1975 summarized Eight Aims and Five Directive Principles for development. Most of these could only come about if there were efficient management of customary land. Dr Jim Fingleton’s tenure as an adviser to the Lands Department bridges the gap from pre-independence to post-independence; he recalls:

Differences in cabinet between Prime Minister Somare on the one hand and Iambakey Okuk and Lands Minister Thomas Kavali, on the other, led to the latter two being sacked from cabinet. A series of Lands ministers followed, including Michael Somare, Boyamo Sali and Jack Genia. The initiatives faltered. With the demise of the Kavali/Fingleton combination there was no competent driving force for legislative reform.

Early in the 1980s the Institute of National Affairs (INA), a private sector lobby group, focused attention on the need for land reform for development. Its principal interest was to remove land from customary tenure to facilitate development. In September 1980 INA commissioned consultants Knetsch and Trebilcock to report on land policy for development. Their report (Knetsch and Trebilcock 1981) stressed the need for reform and cautioned that incremental changes were more likely to succeed than grand, unworkable changes; they saw the recommendations of the CILM as being in the latter category. The following year INA organized a public seminar on ‘Land Policy and Economic Development in Papua New Guinea’; again, excellent discussions provided grist for government policy makers had they chosen to mill it.

A Land Task Force chaired by Kere Moi delivered a report to the Lands minister, Bebes Korowaro, in April 1983. The Task Force supported the recommendations of the CILM, and made a series of proposals concerning registration of customary land, the formalization of direct dealings in customary land, and the establishment of a Rural Development Agency (see Papua New Guinea 1983).

Specific proposals included: protection against outright alienation; focus on communal title and lack of compulsion; land registration; and use of the Land Groups Incorporation Act and the Land Disputes Settlement Act. There was recognition that the Lands Department was a total failure in dealing with customary land, and several alternatives were promoted.

In 1983 the Department of Lands prepared drafting instructions for land registration legislation but in January 1985 a World Bank consultant, Raymond Noronha, produced a very critical report on the drafting instructions, which effectively stymied further progress for some time. Noronha’s bias against Melanesian customary tenure could not be rebutted by personnel in the Lands Department. Lack of commitment by the Department of Lands, and the failure of the state to provide essential resources, throws doubt on the political support for the mobilization of customary land through registration.

In the following years a massive World Bank-funded program on land mobilization was developed and executed. It began with the Land Evaluation and Demarcation Project (LEAD) and developed into the Land Mobilization Project (LMP). The latter title came from the East Sepik provincial government’s initiatives on land registration. Between 1984 and 1987 the East Sepik Province pursued a land registration policy and enacted legislation. During this time there was much interaction between the East Sepik provincial government and the Department of Lands and their World Bank consultants and program managers. The East Sepik provincial government constantly emphasized the fact that customary tenure is a genuine form of tenure and argued that development objectives must be pursued within this context or not at all.

The implementation completion report on the LMP listed indecision on tenurial reform as a major factor limiting the success of the program. The World Bank was apparently not convinced that customary tenure can underpin development: ‘The Project envisaged a major breakthrough in transforming the traditional customary land tenure system into a modernized market oriented land tenure system’ (Wichramarachchi 1992). It is not clear, however, whether the failure of the Papua New Guinea government to embrace tenurial reform indicated a bias against altering custom or a lack of commitment to doing anything at all.

The World Bank program was ambitious and expensive, and once financial constraints affected the Papua New Guinea government its financial contribution to the program faltered and vital initiatives stalled. The funding of the East Sepik land registration legislation as a pilot project was recommended, but coming at a time when national politicians were trying to reduce the power of provincial governments, it was allowed to lapse.

The INA again made a significant contribution to the ongoing discussion on customary land issues with the visit of Professor Robert Cooter in 1988. An earlier INA consultant, Michael Trebilcock, had interested Cooter in Papua New Guinea when he spent two months in the country, including a month in the East Sepik observing the work being done on customary land registration. Cooter produced a very insightful publication comprising five essays and a series of recommendations on land registration (Cooter 1989). It used a number of case studies from land court hearings to demonstrate a methodology for development of a ‘common law’ of customary land.

One outcome of the East Sepik initiative was that the World Bank, in conjunction with the Department of Lands and Physical Planning (DLPP), hired the East Sepik land legislation legal draftsman, Jim Fingleton, to advise on national framework legislation for customary land registration. His report discussed the fundamental questions that had been thrashed out in the East Sepik before approval for land registration could take place; these included inalienability of land, group title, use of the Land Groups Incorporation Act, systematic project-oriented registration, and lending agencies. Fingleton hailed the East Sepik Land Registration Act as ‘the only important land registration law to be introduced in the Pacific, since island states began achieving independence in the early 1960’s’ (Fingleton 1988). Clearly the government did realize that something had to be done about customary land mobilization.

In 1992 Val Haynes was hired to draft a manual on the lease leaseback system, ironically since the inadequacy of this option was one of the considerations which led East Sepik opting for registration legislation.

In 1993, as a result of recommendations by a committee headed by former professor of law at University of Papua New Guinea, Rudi James, the Lands Department produced draft legislation purporting to be framework legislation along the lines that would logically flow from Fingleton’s advice. However, the legislation provided a mechanism for land to be individuated and alienated, leading to the very things that the East Sepik legislation and Fingleton’s advice sought to avoid. The draft proposed a national act and a model provincial act to be adopted by provincial governments. This initiative seems to have died out without debate.

Two years later, the Department of Lands once again retained a consultant to prepare draft legislation for land registration. Loani Henao came up with a draft act, being an amendment to the Land Registration Act (Chapter 191), adding a new section on registration of customary land. Henao stated that:

It was assumed that Henao’s reference to ‘that legislation’ referred to Rudi James’s draft. Henao did not review the East Sepik draft, and the provisions for securing the inalienability of land in the East Sepik legislation were lacking. Introductory rhetoric to the contrary, there was no watertight provision to prevent alienation of land.

Henao’s draft was released at a time when the Chan government was busy pushing through amendments to the Organic Law on Provincial Government, which amongst other things aimed to severely reduce the legislative powers of the provincial governments, and Henao completely dismissed provincial government’s involvement in land registration.

About this time, opponents of the government and the World Bank’s Structural Adjustment Programme (SAP) attacked its proposals for land registration, in terms of ‘attempts to take over our land’. But students and NGO protests generated more heat than light and failed to generate informed debate. The Department of Lands was equally responsible because it did not sponsor a coherent discussion of Henao’s draft legislation. Such a forum could have facilitated a proper assessment of Henao’s proposals.

In 1995 Norm Oliver, a very experienced former land titles commissioner, was hired to contribute to ‘General Institution Building’ for both DLPP and the Attorney General’s Department. He gave excellent advice, which, however, does not seem to have had any real impact. Henao re-presented his draft legislation at a seminar on land matters held by Divine Word University in Madang in 2001, but had not taken into account the wise recommendations of Oliver, particularly those concerning outstanding land disputes attributed to lack of manpower and funding resources, and the role of provincial governments. Oliver concluded:

In October 2000 Brian Aldrich presented a paper to a Special Parliamentary Committee on Urbanization and Social Development. This paper approached the problems of customary land management from the point of view of someone promoting development for the customary landowners. It suggests that the difficulties were immense, given the almost total lack of governance in the relevant areas (Aldrich 2000).

In 2001 the student body at UPNG once again went on strike and took to the streets, linking a so-called ‘Land Mobilization Programme’ with the World Bank’s Structural Adjustment Programme attached to loans to Papua New Guinea. The prime minister shamelessly denied that the government had a land mobilization program. The crisis was handled badly, and ended up in an armed clash at the university campus, where four activists, three of them university students, were fatally shot by out-of-town mobile squad police.

In June that year the Divine Word University held a conference on land matters, titled ‘Culture versus Progress’. This was a further effort to focus political leadership on urgent issues relating to customary land management. Once again Henao presented his draft legislation with a short covering paper (Henao 2001). One contributor commented that the Henao bill had no watertight provision safeguarding clan land from alienation, and that, under the bill ‘it certainly becomes possible to dispose of registered customary land’ (Irara 2001).