Legal personality and the Land Groups Incorporation Act of Papua New Guinea
On 27 October 2017, the National Court of Papua New Guinea discussed the legal personality of clans and incorporated land groups.
On 27 October 2017, the National Court of Papua New Guinea (Anis AJ) rendered a judgment in the case between N. Morris for and on behalf of Tobatobon Clan and (inter alia) Arch Bishop F. Panfilot and the Roman Catholic Archdiocese of Rabaul. Before going into the judgment, two legal instruments of Papua New Guinea will be discussed: the Land Disputes Settlement Act of 1975 and the Land Groups Incorporation Act of 1974.
The Land Disputes Settlement Act was enacted for the purpose ‘to provide a just, efficient and effective machinery for the settlement of disputes in relation to interests in customary land’. Customary land is land that traditionally belongs to e.g. a customary kinship group, a customary descent group or a customary local group or community. Between these groups and communities disputes may arise on the issue to which group or community the land belongs. In that respect, the Act provides for the appointment of Land Mediators and Land Courts. A fair amount of court judgments exists on disputes between (as they are called) clans over entitlement to pieces of land.
The Land Groups Incorporation Act was enacted for the purpose of ensuring ‘the legal recognition of the corporate status of certain customary and similar groups, and the conferring on them, as corporations, of power to acquire, hold, dispose of and manage land’. The Act provides for the national government to ‘appoint an officer to be the Registrar of Incorporated Land Groups’. This Registrar ‘may recognize a customary group of persons as an incorporated land group’. Under the Act, an incorporated land group ‘is a corporation’, that ‘for the purpose of the more effective exercise and performance of its powers and functions, may do and suffer all things that a corporation may do or suffer’.
The Roman Catholic Archdiocese of Rabaul had decided in 2002 to transfer pieces of land it held to local clans. One of these clans was the Tobatobon clan that was represented by the Tobatobon Incorporated Land Group (the Tobatobon ILG). In the course of the process of redistributing the land, the Tobatobon ILG and the Livuan clan signed a memorandum of understanding (MoU) on demarcating their respective areas of land. This MoU entailed that the Tobatobon ILG would give up a piece of land in favour of the Livuan clan. This prompted a senior member of the Tobatobon clan, N. Morris, to start proceedings against Arch Bishop F. Panfilot and the Roman Catholic Archdiocese of Rabaul. N. Morris did so ‘for and on behalf of Tobatobon Clan’. He asked the court to forbid the Roman Catholic Archdiocese of Rabaul to assist in actions that would lead to the redistribution of the land to anyone other than the Tobatobon clan. The Court dismissed the application. The court considered that the MoU had been agreed between the Tobatobon ILG and the Livuan clan, and not between the Tobatobon clan and the Livuan clan: ‘the plaintiff is not suing on behalf of the Tobatobon ILG. On the contrary, he is expressly suing for and on behalf of the Tobatobon Clan’. In addition, the court added: ‘The question I have is this. Is the said [Tobatobon] clan a legal entity recognized under law? The obvious answer would be “no”. A clan, unlike an incorporated land group or a company or a natural person, does not have a legal status’.
The judgment indicates that a clan, although it has legal standing under the Land Disputes Settlement Act, is not a legal person that has legal standing in other proceedings.
The judgment of the National Court of Papua New Guinea can be found at: www.commonlii.org, Papua New Guinea, National Court of Papua New Guinea decisions (PacLII), 2017, October 2017, Morris v Panfilo.