At the time of the proclamation of Protectorates over Papua0 and New Guinea0 and their subsequent annexation, specific policies were adopted by the respective British and German administrations in the two territories to recognise and protect the property rights, in particular land rights, of the indigenous people. In Papua, pledges and assurances were expressly made by the colonial administration to protect indigenous persons and their land.0In New Guinea, although no similar pledges and assurances were expressly made to the indigenous New Guineans, specific instructions were issued to the New Guinea Company and its successors to recognise and respect indigenous land rights and interests.0 The successive Australian administrations vigorously pursued these policies when Australia took over administration of the two Territories.0
Despite such pledges and assurances and policies, there have been many instances of occupied lands being acquired as waste and vacant or ownerless land without proper investigations into the real status of the land and payment of compensation.0 These acquisitions have led to serious land shortages in many parts of the country. The situation has been exacerbated by the recent increase in population growth and the demand for more land for cash crops.
In order to deal with the land shortage problems associated with the alienation of lands and to prevent the perpetuation of the abuse of powers in relation to land rights, one of the measures instituted by the post-Independence government in the mid 1970s was to ensure that the property rights of Papua New Guineans were authoritatively protected in the Constitution as an integral part of the basic human rights provisions of individuals.0 In this regard, it can be said that the constitutional provisions guaranteeing protection of property rights were an aspect of land reform measures, directed to safeguarding the land rights of the indigenous people. Acquisition of private citizens’ property, particularly land, by using the power of eminent domain is strictly governed by constitutional provisions.0
Accordingly, the criterion used by successive governments to determine the amount of land the State should own in Papua New Guinea has been one of “necessity”, viewed in the context of public purpose, rather than of “desirability”.0 This is very important for two reasons. First, it allows the government the opportunity to deal with existing State land, if it is not needed immediately for development purposes, in the interests of the public. Such land can be returned to the original customary owners or to land-short Papua New Guineans. Secondly, the government may refrain from acquiring land unless it is absolutely necessary to do so.
It should be noted that, although “property” refers to personal as well as real property, and includes corporal and incorporeal hereditaments, this paper principally focuses on rights over or interests in land. It is, therefore, not the concern of this paper to deal with property other than land rights or related interests, and accordingly, the use of the term “property” must be read and understood in this context. In particular, the paper examines the extent of the constitutional property protection under the Constitution and the circumstances in which such protection may be curtailed. This necessarily involves the examination of the extent to which non-citizens’, as well as, citizens’ property rights are protected under the laws of Papua New Guinea.
B. Property Rights of Citizens
1. Property Rights of Automatic Citizens0
As mentioned, despite the various policies of the colonial administrations to protect indigenous land rights, a lot of occupied land was acquired through waste and vacant or ownerless declarations and other forms of forcible acquisition. Such acquisitions led to shortages in many parts of the country, and resulted in feelings of insecurity and uncertainty amongst Papua New Guineans as to their land rights.
Given this history of land acquisition, one of the important issues which featured prominently in forums conducted by Constitutional Planning Committee (hereafter “CPC”), in the course of its work leading up to the drafting of the Constitution, was the need to incorporate property rights in the Constitution to prevent repetition of such actions against the land rights of Papua New Guineans. It was consequently decided that the property rights of citizens should be incorporated as an integral part of the basic human rights provisions in the Constitution, in order to prevent the repetition of the abuse of the power of eminent domain.0
The relevant provisions guaranteeing protection of private citizens’ property rights are contained in s 53(1) of the Constitution. This section provides that possession cannot be compulsorily taken of any property, and no interest or right over property can be compulsorily acquired, except in certain specified circumstances in accordance with law.0 These specified circumstances are where the land is acquired for “a public purpose” (eg public defence, health, education and roads),0 or for “a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, provided that the purpose or reason has been so declared and described in a Organic Law or an Act of the Parliament”.0 In addition, s 53 requires that the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason “is such as to afford reasonable justification for the causing of any resultant hardship to” the dispossessed owner.0
The fact that s 53 allows for acquisition of private property in limited or specified circumstances is evidence of the fact that the protection of the property rights of citizens, as an integral part of the basic human rights provisions in the Constitution, is not absolute. Indeed, the property rights guaranteed in s 53, like most other fundamental rights and freedoms, are subject to certain qualifications.0
The incorporation and protection of the property rights of citizens in the Constitution is based on a number of considerations. In particular, Papua New Guineans throughout the country, most of whom still own much of the land under traditional tenure,0 considered the protection of their property rights in the Constitution as a matter of high priority.0 It was accordingly felt that if these property rights were merely dealt with in an ordinary statute like the Human Rights Act 1971,0 the law could be easily changed in the normal way (by a simple majority vote) at any time by the government of the day to suit its own interest. On the other hand, if the rights were incorporated in the Constitution, they would be better protected from government interference.0 Further, there had been no fundamental human rights provisions binding the colonial power, and as a result the colonial administration had not always respected the land rights of the indigenous people, notwithstanding its promises.0 The decision to accord constitutional protection to the land rights of the indigenous people was, therefore, necessary to prevent the repetition of those abuses.
2. Property Rights of Non-Automatic Citizens
The protection of property rights in the Constitution is accorded to all citizens, that is, both automatic and non-automatic citizens.0 However, the property rights of non-automatic citizens were not accorded constitutional protection for the first five years after Papua New Guinea’s Independence on 16 September 1975, that is until 16 September 1980. During the first five years after Independence, the property interests of non-automatic citizens were treated in the same way as those of non-citizens.0
At first glance, the distinction between different classes of citizens appears to conflict with the principle of equality between citizens as required by the National Goals and Directive Principles,0 and to violate the substantive provision on equality of rights of citizens guaranteed by s 55 of the Constitution, irrespective of inter alia race, tribe or place of origin. However, it can be argued that the distinction between different classes of citizens may be rationalised on the basis that without it, the Constitution would have institutionalised the exploitation of automatic citizens by non-automatic citizens who were beneficiaries of the colonial rule. If the property rights of automatic citizens were to be truly protected, then that distinction was justified by the need to redress the economic and social imbalance between automatic and non-automatic citizens caused by the colonial system. The limiting of the protection of property rights to automatic citizens for five years from Independence Day was in accord with that need. It was necessary to enable the government to complete the Plantation Acquisition Scheme and to implement other land reform proposals.0
Furthermore, it can be argued that s 55 of the Constitution is a qualified right, and that the equality of citizens guaranteed by that section is subject to the making of any laws under any other provisions of the Constitution for the special benefit or advancement of under-privileged or less advanced groups in the country.0 This includes the enactment of discriminatory legislation against any category of citizens for the purpose of giving an advantage or special assistance to automatic citizens. The recently repealed Lands Acquisition (Development Purposes) Act19740 (hereafter “Lands Acquisition Act”) was such a discriminatory statute enacted for the benefit of an under-privileged or less advanced group of automatic citizens. This Act was enacted to give effect to the Plantation Acquisition Scheme by providing for the acquisition of plantation lands or properties owned by foreigners or persons or bodies originally of foreign origin. The lands were then to be re-distributed to the original customary landowners or their descendants, for subsistence farming purposes where land for such purposes is in short supply, or for economic development purposes so that they may participate in and benefit from the economic development of the country.
The acquisition of land involved in the case of Frame v Minister for Lands0 is a case in point. In that case, the land owned by Mr. Frame, a naturalised (non-automatic) citizen, was acquired by compulsory process under the provisions of the Lands Acquisition Act for the purposes of redistribution to the original customary owners under the Plantation Acquisition Scheme for economic development purposes. The Minister for Lands determined the compensation payable for the acquired property.
Although there was no dispute as to the power of acquisition under the Act, there was a disagreement as to the quantum of compensation determined by the Minister. Mr. Frame therefore appealed to the National Court against the Minister’s determination, arguing that his property was under-valued particularly given the vast improvements achieved, the high coffee prices prevailing at the time of the acquisition and the demand for the acquired property. The compensation determined by the Minister, the appellant argued, could not be termed “just compensation on just terms” as required by s 53(2) of the Constitution; it fell far short of the constitutional yardstick. The National Court, in allowing the appeal, said that the quantum of compensation was palpably unjust. The expression “just terms” in s 53(2) “involves full and adequate compensation for the compulsory taking”.0