Working with mixed commons/anticommons property: Mobilizing customary land in Papua New Guinea the Melanesian way

Harvard Environmental Law Review

Volumn 31, Issue 1, 2007, Pages 219-277

  Dixon, Kathrine ^a  

^a Environmental Law and Policy Center of the Midwest   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

KINSHIP; LAND MANAGEMENT; LAND USE PLANNING; LANDOWNERSHIP; SOVEREIGNTY; STRATEGIC APPROACH;

MELANESIA; PACIFIC ISLANDS; PACIFIC OCEAN; PAPUA NEW GUINEA;

EID: 33947509558     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (373)

1. See generally John Connell, Papua New Guinea: The Struggle for Development 2-8 (1997).
2. Id. at 1.
3. Id.
4. Id. at 1-2.
5. Id. at 2.
6. Id.
7. Connell, supra note 1, at 1-2, 6.
8. Id. at 312-13.
9. See id. at 40-41.
10. Id. at 317 (citations omitted).
11. See, e.g., Austl. Agency for Int'l Dev., The Economy fo Papua New Guinea: Macroeconomic Policies: Implications for Growth and Development in the Informal Sector xiv (2000).
12. Michael Rynkiewich, Narratives About Land and Development in PNG, in Culture and Progress: The Melanesian Philosophy of Land and Development in Papua New Guinea 38, 43 (Nancy Sullivan ed., 2002).
13. Customary land has formally been defined as land that is "owned or possessed by an automatic citizen or community of automatic citizens by virtue of rights of a proprietary or possessory kind which belong to that citizen or community and arise from and are regulated by custom." John T. Mugambwa & Harrison A. Amankwah, Land Law and Policy in Papua New Guinea 118 (2d ed. 2002). An "automatic citizen" under the PNG Constitution is "a person born in the country before Independence Day who has two grandparents born in the country or an adjacent area" or a person born outside of PNG prior to Independence Day who, among other requirements, has renounced any other citizenship and has been registered as a citizen of PNG. PNG CONST. § 65.
14. See Michael Trebilcock, Communal Property Rights: The Papua New Guinean Experience, 34 U. Toronto L.J. 377, 382-83 (1984).
15. Anthony P. Power, Land Mobilisation Programme in Papua New Guinea (July 2001), http://www.pngbuai.com/300socialsciences/management/ land-development/indigenouslandgroupsregistration1.html (last visited Nov. 4, 2006) (on file with the Harvard Environmental Law Review).
16. Id.
17. Lawrence Kalinoe, Social Change in Customary Land Tenure in Papua New Guinea, in Culture and Progress: The Melansian Philosophy of Land and Development in Papua New Guinea 124 (Nancy Sullivan ed., 2002)
18. (citing John Dove et al., Mining Bitterness, in Problem of Choice: Land in Papua New Guinea's Future (Peter Sack ed., 1974)) (citations omitted).
19. Kalinoe, supra note 16, at 124.
20. Sonja Klopf, Natural Res. Law Ctr.. Private Land Conservation in Papua New Guinea 18-19 (Sept. 2004).
21. See Kalinoe, supra note 16, at 125.
22. Klopf, supra note 18, at 21.
23. Robert D. Cooter, Inventing Market Property: The Land Courts of Papua New Guinea, 25 Law & Soc'y Rev. 759, 766 (1991).
24. Customary land and alienated land in PNG are governed by significantly different regulatory regimes. Freehold land is governed by the Land Registration Act, which sets out a Torrens system of conveyance and registration of title. Land Registration Act of 1981 § 98 (2000) (Papua New Guinea).
25. Under the Torrens system, interests in land are created or transferred by registration of the transaction with the Registrar of Titles. Upon registration, title is guaranteed by the government and becomes indefeasible, meaning that once a person is registered as the proprietor of a piece of land, he or she cannot be divested of title by rival claims. See id. at § 11.
26. The National Land Registration Act governs all alienated State land, which is also managed under a Torrens title system. National Land Registration Act of 1977, Preamble (1996) (Papua New Guinea). Although non-citizens may not own land in PNG, they may lease alienated land from the State - indeed, "[m]ost alienated land in Papua New Guinea is held under State lease." Mugawbwa & Amankwah, supra note 12, at 359.
27. Tony Power, Policy Making in East Sepik Province, in Customary Land Tenure: Registration and Decentralisation in Papua New Guinea 101 (Peter Larmour ed., 1991).
28. Romilly L. Kila Pat, Papua New Guinea Dep't of Lands and Physical Planning Customary Land Tenure in a Changing Context 4 (2003), available at http://dlc.dlib.indiana.edu/archive/00001211/00/Kila_pat.pdf (last visited Nov. 4, 2006) (on file with the Harvard Environmental Law Review).
29. Robert Cooter, Kin Groups and the Common Law Process, in Customary Land Tenure: Registration and Decentralisation in Papua New Guinea, at 33, 39.
30. See, e.g., Trebilcock, supra note 13, at 377, 380
31. (citing World Bank Report on Papua New Guinea (1981) (recommending that PNG's land resources offer the most growth possibilities for the foreseeable future)).
32. See id.
33. Trebilcock, supra note 13, at 382.
34. See Peter Larmour, Land Registration in Papua New Guinea: Fifty Years of Contention, in Land Registration in Papua New Guinea: Competing perspectives 1, 1-5 (2003), available at http://dspace.anu.edu.au/ bitstream/1885/40180/1/Curtin03-1.pdf (last visited Nov. 4 2006) (on file with the Harvard Environmental Law Review).
35. Klopf, supra note 18, at 21.
36. See Trebilcock, supra note 13, at 380 (citing World Bank Report, supra note 25, which notes that "[d]isputes over land ownership in a nation with neither the machinery nor the political will to deal with them have been a major constraint on development.").
37. Id.
38. L. T. Jones & P. A. McGavin, Land Mobilisation in Papua New Guinea 26, 28 (2001).
39. U.S. Department of State, Background Note: Papua New Guinea, http://www.state.gov/r/pa/ei/bgn/2797.htm (last visited Nov. 4, 2006) (on file with the Harvard Environmental Law Review).
40. See Cooter, Kin Groups and the Common Law Process, supra note 24, at 38.
41. See Power, supra note 14 (noting that PNG has, in fact, thousands of years of experience in land management under customary land tenure and thus could easily transition into a tenure system that retains group control).
42. Heller defines anticommons property as "the mirror image of commons property." Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 622 (1998).
43. The anticommons regime still has ownership vested in multiple parties, but by having too many owners, the land is "prone to underuse - a tragedy of the anticommons." Id.
44. See generally Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990) (arguing that where stable institutions of self-government exist to manage against overconsumption, resources can be held in common even without privatization or enforcement imposed by an outside force). Among armslength bargainers, parties will often engage in opportunistic behavior as a wealth-maximizing strategy.
45. Gary D. Libecap, Contracting for Property Rights 19 (1989). Such behaviors include delay (blocking a use from going forward by refusing to assent to that use) and shirking from property-enhancing activity.
46. See id. at 4, 19-20.
47. Cooter, Inventing Market Property, supra note 21, at 766 (citation omitted).
48. Jones & McGavin, supra note 32, at 26 (Figure 3.1).
49. T. Harding, Land Tenure, in Anthropology in Papua New Guinea 107 (I. Hogbin ed., 1973).
50. See Robert Ellickson, Property in Land, 102 Yale L.J. 1315, 1322 (1992) (defining group-owned property as property over which use rights are restricted to members of a group "small enough to permit intermittent face-to-face interaction"). For group-owned property, the group exercises the role of a unitary private landowner, which the right to exclude non-group members.
51. Id.
52. Cooter, Inventing Market Property, supra note 21, at 767-68.
53. See Jones & McGavin, supra note 32, at 30-31.
54. Trebilcock, supra note 13, at 383
55. (citing Ron Crocombe and Robin Hide, New Guinea: Unity in Diversity, in Land Tenure in the Pacific 304 (Ron Crocombe ed., 1971)).
56. Social groups in PNG may be classified in the following way: the immediate/nuclear family consists of the parents and children; the clan/ sub-clan includes all members originating from the same male ancestor (in patrilineal societies) or the same female ancestor (in matrilineal societies). Jones & McGavin, supra note 32, at 29.
57. This is the level at which land ownership rights are conferred. Id.
58. The lineage is "closely related to the clan unit, however, where more than one clan or sub-clan is descended from an original founder then the lineage will consist of all of these related groups." Id.
59. The tribe encompasses all of these subunits and is defined by a single language. Id.
60. Trebilcock, supra note 13, at 383.
61. Id.
62. Id.
63. Id.;
64. Jones & McGavin, supra note 32, at 30-31 (under customary law, land was occasionally transferred to a different individual or group in a manner similar to a sale or lease).
65. Trebilcock, supra note 13, at 383.
66. See Hartmut Holzknecht, Customary Properly Rights and Economic Development in Papua New Guinea, in Property Rights and Economic Development: Land and Natural Resources in Southeast Asia and Oceania 139, 140 (Toon van Meiji & Franz von Benda-Beckmann eds., 1999).
67. Id.;
68. Trebilcock, supra note 13, at 383.
69. Cooter, Inventing Market Property, supra note 21, at 768.
70. See also Trebilcock, supra note 13, at 383-84.
71. Customary Law in Papua New Guinea: A Melanesian View viii (Richard Scaglion ed., 1983).
72. Peter G. Sack, Land Between Two Laws: Early European Land Acquisitions in New Guinea 33, 36-38 (1973);
73. Stuart Banner, Two Properties, One Land: Law and Space in Nineteenth-Century New Zealand, 24 Law & Soc. Inquiry 807, 811 (1999).
74. Cooter, Inventing Market Property, supra note 21, at 768.
75. See Sack, supra note 54, at 42 (1973).
76. Id.
77. Banner, supra note 54, at 811 (citation omitted).
78. Id.
79. See Trebilcock, supra note 13, at 383.
80. See Alyssa A. Vegter, Comment, Forsaking the Forests for the Trees: Forestry Law in Papua New Guinea Inhibits Indigenous Customary Ownership, 14 Pac. Rim L. & Pol'y J. 545, 552 (2005).
81. See Trebilcock, supra note 13, at 383.
82. See Cooter, Inventing Market Property, supra note 21, at 768.
83. Id. at 769.
84. Id. at 766.
85. Sack, supra note 54, at 43.
86. Id.
87. Id.
88. Id. at 43.
89. Cooter, Inventing Market Property, supra note 21, at 767.
90. Id. at 768.
91. See, e.g., William Blackstone, 2 Commentaries *2. It should be noted that a number of decisions with respect to uses of private property are impacted by parties other than the property owner - for example, easement holders, state and local governments (through taxes and zoning regulations), and the courts. However, as compared to communal land ownership, private property ownership concentrates decision-making power in a single individual or family. Generally, this concentration of decision-making powers is one of the distinct advantages of private property ownership because it significantly lowers transaction and monitoring costs.
92. Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. (Pap. & Proc.) 347, 356-57 (1967).
93. Cooter, Inventing Market Property, supra note 21, at 769.
94. Id.
95. Vegter, supra note 61, at 553.
96. Id.
97. Id.
98. Id.
99. Jones & McGavin, supra note 32, at 29-30.
100. Id.
101. Sack, supra note 54, at 44-45.
102. Id.
103. Klopf, supra note 18, at 21.
104. See generally Heller, supra note 36.
105. Demsetz, supra note 72, at 354.
106. Id.
107. It should be noted that modern property law scholars question whether communal ownership and state ownership should be separate classifications. Robert Ellickson, for example, argues that although the state has unique sovereign powers to tax, regulate, and exercise eminent domain, in its capacity as a land manager it is largely indistinguishable from nongovernmental landowning groups. Ellickson, supra note 41, at 1322 n.23.
108. Demsetz, supra note 72, at 354.
109. See C.B. Macpherson, Liberal-Democracy and Property, in Property: Mainstream and Critical Positions 199, 201 (C. B. Macpherson ed., 1978).
110. Ellickson, supra note 41, at 1322.
111. Id.
112. Id.
113. Id.
114. Aristotle, Politics, Book 11, Ch. 3 (quoted in Ostrom, supra note 37, at 2).
115. Demsetz, supra note 72, at 354.
116. Id.;
117. Ellickson, supra note 41, at 1325-26.
118. Ellickson, supra note 41, at 1326.
119. Id.
120. Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244 (1968).
121. Grundrente" af Fiskegrunde, 49 Nationaløkonomisk Tidsskrift 495 (1911), translated in Peder Andersen, "On Rent of Fishing Grounds": A Translation of Jens Warming's 1911 Article, with an Introduction, 15 Hist. Pol. Econ. 391 (1983).
122. Warming's analysis was independently discovered by H. Scott Gordon in H. S. Gordon, The Economic Theory of a Common Property Resource: The Fishery, 62 J. Pol. Econ. 124 (1954);
123. and extended by Steven N. S. Cheung in Steven N. S. Cheung, The Contractual Nature o the Firm, 26 J.L. & Econ. 1 (1983).
124. Hardin, supra note 99, at 1244.
125. Id.
126. Id. at 1245.
127. See Demsetz, supra note 72, at 356-57.
128. Id.
129. Ellickson, supra note 41, at 1326 ("Different land regimes ... involve different combinations of transaction costs and deadweight losses. A change in land rules is efficient when it reduces the sum of these two sorts of costs.") (emphasis in original).
130. Hardin, supra note 99, at 1245.
131. See Ellickson, supra note 41, at 1326 (efficiency is achieved when there is a reduction in the sum of deadweight losses and efficiency costs).
132. See, e.g., Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. 453, 458 (2002).
133. Id.
134. See Smith, supra note 108, at 458.
135. Ostrom, supra note 37, at 61.
136. Id. at 61-65.
137. Id. at 62-65.
138. Id. at 66.
139. Id. at 67-69.
140. Id. at 68-69
141. (quoting Margaret A. McKean, Management of Traditional Common Lands (Iriaichi) in Japan (Apr. 21-26, 1985), in Proceedings of the Conference on Common Property Resource Management 533-89 (National Research Council ed., 1985), reprinted in Making the Commons Work: Theory, Practice & Policy 63-98 (Daniel W. Bromley ed., 1992)).
142. Ostrom, supra note 37, at 90.
143. See id at 88.
144. Ellickson, supra note 41, at 1366.
145. Ostrom, supra note 37, at 58.
146. Ellickson, supra note 41, at 1320.
147. Ostrom, supra note 37, at 88-89.
148. Id. at 61, 63.
149. Id. at 63 (citation omitted).
150. Ostrom, supra note 37, at 63.
151. Ellickson, supra note 41, at 1341.
152. Id. at 1369-70 (arguing that this development of private property within communal landowning structures tracks the development of literacy within customary groups).
153. See, e.g., Ostrom, supra note 37, at 61, 66;
154. Ellickson, supra note 41, at 1371.
155. See also Ellickson at 1375-76 (arguing that these private rights are restricted by blanket prohibitions on alienability and approval requirements for proposed transfers or leases).
156. Ellickson, supra note 41, at 1329.
157. Heller, supra note 36, at 673.
158. See J.E. Penner, The Idea of Property in Law 71 (1997).
159. Id.
160. See Cooter, Inventing Market Property, supra note 21, at 768.
161. Id. at 787.
162. See Ellickson, supra note 41, at 1358.
163. See Vegter, supra note 61, at 552.
164. Id.
165. Ellickson, supra note 41, at 1327-28.
166. John McManus provides some empirical evidence of the costly monitoring of communal resource use in the context of beaver hunting among the Montagnais and Naskapi North American Indian tribes. As McManus describes, these tribes had no central coercive authority for the enforcement of property rights and no institutional constraints other than those established within the tribe itself. Thus, enforcement of the exclusive right to harvest furs within communal territory was generally left to the individual, which encouraged faster depletion of beaver resources. McManus argues that constraints on behavior within these tribes were stricter with respect to commercial resource uses as opposed to subsistence resource uses. John McManus, An Economic Analysis of Indian Behavior in the North American Fur Trade, 32 J. Econ. Hist. 36, 45-50 (1972).
167. Heller, supra note 36, at 667 (outlining previous definitions of anticommons property).
168. Id. at 624.
169. Id. at 670.
170. Id. at 624.
171. Id.
172. id. at 635.
173. See Heller, supra note 36, at 634-35.
174. See id. at 638, Figure 2.
175. See id. at 639.
176. Id. at 631.
177. Id. at 640.
178. Id. at 687-88.
179. Heller, supra note 36, at 641.
180. Id. at 637, 641.
181. Id. at 641.
182. Id. at 640.
183. Id. at 643.
184. However, Hernando de Soto suggests that informal economies tend to produce other efficiency drains, as will be discussed further in Part III of this Article.
185. Heller, supra note 36, at 673.
186. Id. at 674.
187. Id. at 673.
188. Sack, supra note 54, at 42, 44-45. This is not to say that there is not a functional hierarchy of rights within customary landowning groups. As Peter Sack writes: The different strength of the claims of different categories of group members or "attachers" to share the use of the land within a group's sphere of control, can be described as a hierarchy of rights. Another kind of hierarchy develops when a sphere of control is divided by transferring parts of the right of control to sub-groups or individuals. A third kind of hierarchy is made possible by the traditional notion that ownership is a result of human effort; several persons can independently in different ways establish claims to the same object.
189. Sack, supra note 54, at 43. However, this traditional notion of hierarchy may be distinguished from Western notions of hierarchical estates in land, which would privilege one estate owner (namely a fee holder) over another (for example, an easement holder) with respect to determining the ultimate use of the land.
190. See id. at 42. Although traditional notions of hierarchy may help facilitate efficient resource use within a customary landowning group, when a decision to sell or lease land outside of clan ownership is involved, this traditional form of hierarchy does not vest in one user a right to make that decision without the approval of other affected rights-holders.
191. See id. at 44-45. In a Western system, on the other hand, owners of land in fee may sell their property without necessarily involving the holder of an easement on that property, although the easement will generally survive the sale.
192. Heller, supra note 36, at 638, Figure 2.
193. See Cooter, Inventing Market Properly, supra note 21, at 768.
194. Heller, supra note 36, at 674-75.
195. Ostrom, supra note 37, at 90, Table 3.1.
196. Jones & McGavin, supra note 32, at 29-30;
197. Klopf, supra note 18, at 21.
198. Cooter, Inventing Market Property, supra note 21, at 787.
199. Id. at 787-88.
200. Heller, supra note 36, at 673.
201. As noted above, all rights of use entail concomitant rights of exclusion, but these rights need not be rights of actual use or exclusion. In his discussion of property rights as "gatekeeper" rights, J. E. Penner notes that "the important feature of property is the individual's determination of the disposition of a thing, not any requirement that he use it on his own." Penner, supra note 131, at 75.
202. See also Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 744 (1998) (describing property rights as "gatekeeper" rights: "At its core, the gatekeeper right is the right to determine the use of resources, by exercising the power of exclusion and inclusion."). The right of exclusion, in Penner's view, is any auxiliary right that enforces or protects this broad use right. Thus, the right of exclusion may be a positive right, in the way that setting up a fence will actually exclude others from one's property or, as Penner argues, it may also be a negative right, which places a duty on others not to interfere with a right-sholder's property interests.
203. Penner, supra note 131, at 73. With respect to nonpossessory property interests, only negative exclusionary rights are available to protect that interest: "although the holder of [a nonpossessory interest] does not have a general right to exclude others from defined metes and bounds, such a person is given a full panoply of legal rights to protect the limited interest that they have from interference by others."
204. Merrill, supra, at 748. Although Merrill's account suggests in this way that every property right has an exclusionary valence - a position not widely accepted among property theorists - this Article does not attempt to forward that theory. Instead, this Article focuses on veto rights over transfers of land, which are most clearly exclusionary in nature.
205. In Heller's example, all of the relevant players hold only nonpossessory rights to storefront property in Moscow. The "right of occupancy" currently exercised in relation to many post-Soviet Moscow storefronts - which is presumably closest to a possessory interest of all of the competing rights at issue - is merely an ambiguous, "squatter-type" right that is not integrated into the formal rights-holding structure of Moscow storefront property. No positive rights of physical occupation or actual use of storefront property have been allocated in the post-socialist system. Heller, supra note 36, at 636-37.
206. Jones & McGavin, supra note 32, at 29.
207. Id. at 31.
208. Id.
209. Cooter, Inventing Market Property, supra note 21, at 788.
210. Id.
211. See supra Part I.B.1.
212. See Ostrom, supra note 37, at 63-65, 67.
213. See Heller, supra note 36, at 666.
214. Merrill, supra note 169, at 750.
215. Jones & McGavin, supra note 32, at 72.
216. Id. at 74.
217. Id.
218. See Philip Pettit, The Cunning of Trust, Phil. & Pub. Aff., Summer 1995, at 202, 209-10.
219. Id.
220. See Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 Yale L.J. 549, 574, 582 (2001). Dagan and Heller posit a theory of the "liberal commons" - a solution to the problems created by communal ownership in the form of a new regime of property ownership based partly on Ostrom's theory that cooperation among close-knit landowning groups can lead to economic and social gains. Within this framework, Dagan and Heller argue that trust fosters economic success and thus an ideal land ownership regime would encourage the development of strong relationships among property owners.
221. See supra note 118 and accompanying text.
222. Jones & McGavin, supra note 32, at 73.
223. Holzknecht, supra note 50, at 141.
224. See also Banner, supra note 54, at 825-26.
225. Jones & McGavin, supra note 32, at 73.
226. This Article focuses primarily on the decision-making process within a customary landowning group leading to a commercial transaction in land with non-kin. Although an extended analysis of how continuing relations between kin and non-kin should be governed after such a transaction has been completed is a natural extension of this discussion, it is beyond the scope of this Article. It will suffice to note that the dynamics of kin/non-kin relations will likely be different for transactions transferring rights to a non-kin purchaser than for transactions in which the selling group and the purchaser will maintain continued dealings. Trust is central to ensuring the efficiency of both types of transactions. It also might be noted that even sales of customary land will involve some continued relationship between kin and non-kin as neighboring landowners whose behaviors might create negative externalities for each other.
227. Jones & McGavin, supra note 32, at 75.
228. Id.;
229. Andrew Pai & Jacob Sinne, A Framework for Management of Customary Land for Development and Investment in Urban Centres of Papua New Guinea, in Culture and Progress: The Melanesian Philosophy of Land and Development in Papua New Guinea 187, 196 (Nancy Sullivan ed., 2002).
230. Amnesty International, Annual Report 2005: Papua New Guinea http://web.amnesty.org/report2005/png-summary-eng (last visited Nov. 4, 2006) (on file with the Harvard Environmental Law Review).
231. Distrust may actually be beneficial for customary landowners in discouraging some dealings with non-kin. For example, because non-kin transferees (particularly potential developers) are presumably more experienced at appropriating land, customary landowners might be at a bargaining disadvantage due to disparities in information costs, leaving them vulnerable to price-gouging. Further, because a non-kin transferee would likely have interests that are at odds with the interests of the larger group, governance of clan land following a sale would likely be made more difficult due to the influence of a relatively unrestrained non-kin actor. See generally Heller, supra note 36.
232. Holzknecht, supra note 50, at 142.
233. Askim Siming, Welcome, in Culture and Progress: The Melanesian Philosophy of Land and Development in Papua New Guinea 1, 4 (Nancy Sullivan ed., 2002).
234. Holzknecht, supra note 50, at 142-43.
235. Id.
236. Id. at 143 (citation omitted).
237. Id.
238. Id. at 142-43.
239. Trebilcock, supra note 13, at 397 (citing Demsetz, supra note 72, at 357).
240. (citing Demsetz, supra note 72, at 357).
241. Trebilcock, supra note 13, at 396.
242. Id. at 396-97.
243. See Cooter, Kin Groups and the Common Law Process, supra note 24, at 35.
244. See also Village Courts Act of 1989 (Papua New Guinea); Land Disputes Settlement Act of 1975 § 45 (Papua New Guinea).
245. Land Disputes Settlement Act of 1975 § 45 (Papua New Guinea).
246. See generally Cooter, Inventing Market Property, supra note 21.
247. Klopf, supra note 18, at 21.
248. Note that Michael Heller's article on the anticommons contains no analogue to this kind of direct State involvement in the determination of land uses (at least with respect to property in the post-Soviet era, when anticommons problems began to occur). See generally Heller, supra note 36.
249. The PNG government does claim eminent domain over all land and water in PNG, and it also claims rights to all minerals and petroleum. Tony
250. Land Act of 1996 § 10 (Papua New Guinea);
251. Mugambwa & Amankwah, supra note 12, at 359.
252. Cooter, Inventing Market Property, supra note 21, at 775.
253. Land Act of 1996 § 7 (Papua New Guinea).
254. The Minister may lease customary land for business or agricultural purposes by compulsory process without compensation to the customary owners. Id. at § 11. The government also has the power to acquire property through its emergency powers without compensation to the landowner, as long as the property is returned to the landowner as soon as the emergency situation has ended.
255. The Constitution guarantees, however, that "property cannot be compulsorily acquired by the government unless the land is acquired for a specific public purpose or a reasonably justifiable reason." Klopf, supra note 18 at 17;
256. PNG Const. § 53(1). For example, government acquisition of land other than customary land is allowed as a consequence of an offense against the law or if the land has been abandoned. In addition to acquisition of land, the government may also restrict property ownership rights for environmental or cultural conservation purposes.
257. Klopf, supra note 18, at 17-18.
258. Land Act of 1996 § 11 (Papua New Guinea).
259. Francis Irara, Customary Land Registration: A Demon or a Blessing in Disguise?, in Culture and Progress: The Melanesian Philosophy of Land and Development in Papua New Guinea 140, 144 (Nancy Sullivan ed., 2002).
260. C. E. P. (Val) Haynes, The Land Mobilisation Program and Customary Land, in Custom at the Crossroads 129, 136 (Jonathan Aleck & Jackson Rannells eds., 1995).
261. Many authors have noted that severing customary landowners from participation in determining uses of customary land in this way has contributed to the failure of effective land mobilization. See, e.g., Pai and Sinne, supra note 192, at 187-96.
262. Heller, supra note 36, at 639.
263. See Klopf, supra note 18, at 17.
264. Id. at 18.
265. See, e.g., Eric Kades, The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands, 148 U. Pa. L. Rev. 1065, 1112 (2000). Kades suggests that the United States government purposely established itself as the only purchaser of Indian lands as part of a larger strategy to drive down the costs of tribal land acquisition. It should also be noted that the lease-lease-back scheme distorts land values in that, although by statute lands available for lease must be widely advertised and all applicants must be considered, applicants do not engage in bidding over a State lease.
266. Rent on State leases is set by the Minister of Lands and Physical Planning, under advisement of the Land Board, and tender offers for less than the set rental figure are considered void. Land Act of 1996 §§ 69, 71, 73, 83 (Papua New Guinea) (excerpted in Mugambwa & Amankwah, supra note 12, at 362-63, 378-79).
267. Cooter, Inventing Market Property, supra note 21, at 776.
268. See also Charles Benjamin, Sectoral Land Issues and Government Policy Directions, in Culture and Progress: The Melanesian Philosophy of Land and Development in Papua New Guinea 97, 99 (Nancy Sullivan ed., 2002).
269. Rynkiewich, supra note 12, at 51 (citation omitted).
270. See Romilly L. Kila Pat, supra note 23, at 4.
271. See generally, Peter Larmour, Land Registration in Papua New Guinea: Fifty Years of Contention, supra note 28, at 1-5;
272. Peter Larmour, Registration of Customary Land: 1952-1987, in Customary Land Tenure, supra note 22, at 51, 51-72. The vast majority of the scholarship on customary land tenure in PNG written during the 1990s focuses on the numerous governmental efforts to implement widespread registration of interests in customary land and the limited success these efforts achieved. Nevertheless, the Land Registration Act does make provisions for registration of customary rights. Land Registration Act of 1981 § 98. East Sepik Province has also passed its own customary land registration statute under which clans may register their lands. Under this system, "registration ... has little or no effect upon the legal powers of the groups whose boundaries are recorded.
273. Their property rights are allocated according to customary law ...." Cooter, Kin Groups and the Common Law Process, supra note 24, at 43. Registration does not change substantive property law and thus neither strengthens nor weakens existing property rights.
274. Id.
275. Trebilcock, supra note 13, at 394.
276. Heller, supra note 36, at 621, 640.
277. An exhaustive account of each of these land mobilization strategies is beyond the scope of this paper, as each has received in-depth treatment by other authors.
278. Heller, supra note 36, at 641.
279. It should be noted, however, that the PNG government does have a practice of effectively condemning customary land to access mineral and petroleum resources, over which the State has absolute ownership. Direct dealings in land are generally prohibited under the Land Act; however, foreign companies may deal directly with customary landowners under government-issued exploration and development licenses. See generally Tony Power, Landowner Compensation: Policy and Practice, supra note 209, at 84-93.
280. Admittedly, this condemnation practice does not "re-bundle" property rights in such a way as to create permanently marketable private property, as was envisioned by Heller. However, by exercising its right to mineral extraction the government does effectively consolidate core rights to the surrounding land in a sole owner (the government itself). It also gives that owner clear hierarchy in decision-making. Therefore, this condemnation practice could still be considered a possible means of overcoming anticommons problems.
281. Customary landowners have difficulties reconciling this condemnation practice to their views of property ownership, which suggests an argument that this effective condemnation is a compensable taking of customary property. However, although the government would argue that it is just claiming a valid right to the minerals underlying customary land, it has nevertheless developed an informal policy of compensating customary landowners for the use of their land through royalty sharing, mitigating non-mineral related development, employment preferences, and education and training opportunities.
282. See id., at 85-87. In this way, the PNG government may have managed to overcome some of the drawbacks of regulatory strategies enumerated by Heller. Overall, however, this particular strategy is not so broad in applicability to adequately respond to general anticommons problems.
283. Although first regarded by the PNG government as foreign law, customary law is currently accepted as part of the underlying law of PNG. See Klopf, supra note 18, at 21.
284. See also Owen Jessep & Anthony J. Regan, Developing a Coherent Underlying Law - Integrating Custom and Common Law: Part One, in Twenty Years of the Papua New Guinea Constitution 114, 115-18 (Anthony J. Regan, Owen Jessep & Eric L. Kwa eds., 2001).
285. See generally Sean Dorney, Papua New Guinea: People, Politics and History Since 1975 101-30 (3d ed. 2000). In his chapter entitled Bougainville: Origin of the War 1988-90, Sean Dorney describes violent guerilla warfare in the Bougainville province to sabotage a copper mining operation from which customary landowners saw no economic benefit and suffered much environmental degradation from mining waste that retarded crop growth, led to the extinction of the flying fox, poisoned economic trees and fish, and caused birth defects among village children.
286. See Cooter, Inventing Market Property, supra note 21, at 777-78.
287. See generally Land (Tenure Conversion) Act of 1963 (Papua New Guinea);
288. Cooter, Inventing Market Property, supra note 21, at 777-78.
289. A "citizen" under this act includes a business group, a land group, a customary kinship group, a customary descent group, and a customary local group or community. Land (Tenure Conversion) Act of 1963 §4 (Papua New Guinea).
290. Land (Tenure Conversion) Act of 1963 § 16 (Papua New Guinea).
291. Id.
292. Trebilcock, supra note 13, at 386.
293. Cooter, Inventing Market Property, supra note 21, at 778.
294. Id. at 778-79.
295. Id. at 778.
296. Cooter, Kin Groups and the Common Law Process, supra note 24, at Appendix I.
297. Klopf, supra note 18, at 24.
298. Cooter, Inventing Market Property, supra note 21, at 780.
299. Id.
300. Id.
301. Cooter, Inventing Market Property, supra note 21, at 773.
302. Trebilcock, supra note 13, at 396.
303. Jack K. Knetsch & Michael Trebilcock, Land Policy and Economic Development in Papua New Guinea (1981), reprinted in Mugambwa & Amankwah, supra note 12, at 73 (citation omitted).
304. Cooter, Inventing Market Property, supra note 21, at 776.
305. See generally John D. Conroy, Essays on the Development Experience in Papua New Guinea 24-28 (1982);
306. Holzknecht, supra note 50, at 145-46.
307. Informal arrangements could have negative repercussions for landowning clans depending on how decisions to sell or lease land on the black market are actually made. Although traditionally all decision-making with respect to significant changes in land use required unanimous consent from the affected clan members, Jones & McGavin, supra note 32, at 29-30, black market strategies may or may not adhere to these procedures. If decisions to sell may be made by a single clan member, informal markets would seem to create a situation where clan land - important for spiritual, subsistence, and social security purposes - can be sold out from under a clan member without his or her consent. It may be presumed, however, that disputes of this nature would be worked out through traditional mediation procedures or in land court, which is unlikely to uphold a black market sale or lease that was not conducted in accordance with customary practice.
308. See Cooter, Inventing Market Property, supra note 21 at 773.
309. Heller, supra note 36, at 643.
310. Klopf, supra note 18, at 25.
311. Cooter, Inventing Market Property, supra note 21, at 773.
312. See id. at 774.
313. Id.
314. See Cooter, Inventing Market Property, supra note 21, at 773.
315. See generally Hernando de Soto, The Other Path: The Invisible Revolution in the Third World 177-82 (1989).
316. See id. at 60-62.
317. See Holzknecht, supra note 50, at 146.
318. See also Conroy, supra note 249, at 26-27.
319. See De Soto, supra note 257, at 161-62, 164-71, 177.
320. Id. at 179.
321. Land Groups Incorporation Act of 1974 (Papua New Guinea); Power, supra note 14.
322. Land Groups Incorporation Act of 1974 (Papua New Guinea).
323. Id. at 11, 13.
324. See Lynne Armitage, Customary Land Tenure in Papua New Guinea: Status and Prospects § 3.1 (2001), http://dlc.dlib.indiana.edu/archive/ 00001043/00/armitage.pdf (last visited Nov. 4, 2006) (on file with the Harvard Environmental Law Review).
325. Land Groups Incorporation Act of 1974 § 8 (Papua New Guinea).
326. See, e.g., Vegter, supra note 61, at 565 (citation omitted).
327. Trebilcock, supra note 13, at 408.
328. See Demsetz, supra note 72, at 358.
329. It may be argued that a corporate structure will not function as efficiently in the context of customary landowning clans as it might for other corporate actors that face greater competition and market constraints. Because competition and market constraints have opposing effects on the efficiency of a particular market, however, it is difficult to say whether this distinction is meaningful in evaluating the efficiency of a corporate structure governing commercial uses of customary land.
330. Peter Donigi, Indigenous or Aboriginal Rights to Property 48-49 (1994).
331. A Case Study on Indigenous People, Extractive Industries and the World Bank: Papua New Guinea § 2.3 (2003), available at http://www.forestpeoples.org/documents/prv+sector/eir/ eir_internat_wshop_png_case_apr03_eng.pdf (on file with the Harvard Environmental Law Review).
332. Michael Taylor, The Economics and Politics of Property Rights and Common Pool Resources, 32 Nat. Res. J. 633, 635 (1992).
333. See Ellickson, supra note 41, at 1334-35, 1341.
334. Trebilcock, supra note 13, at 400.
335. Rynkiewich, supra note 12, at 50.
336. See Tim Curtin, Scarcity Amidst Plenty: The Economics of Land Tenure in Papua New Guinea, in State, Society, and Governance in Melanesia: Land Registration in Papua New Guinea: Competing Perspectives 6 (2003).
337. See supra note 118 and accompanying text.
338. See supra notes 100-102 and accompanying text.
339. See, e.g., Ostrom, supra note 37, at 88.
340. See supra notes 97, 115 and accompanying text.
341. See supra note 135 and accompanying text.
342. See supra note 36 and accompanying text.
343. See supra note 121 and accompanying text.
344. Libecap, supra note 37, at 11.
345. Id. at 16.
346. Id. at 21.
347. See id. at 19-21.
348. See Dagan & Heller, supra note 185, at 576-77.
349. See id. (stating that: "Strong exit allows each commoner an unwaiveable right to leave the commons at any moment. But each commoner also knows that others can leave at any moment, raising a serious concern for those who want to stay put. The stay-putters worry what may happen between the moment the foot-out-the-door folks decide to leave and the moment they actually exit. In the interim, the stay-putters may continue to cooperate, but the foot-out-the-door folks are now playing a transitory and short-lived game. The stay-putters may worry that, during the interim period, which can happen at any time, the foot-out-the-door folks will take advantage of them, either by overexploiting or underinvesting in the commons resource."). leave the commons at any moment. But each commoner also knows that others can leave at any moment, raising a serious concern for those who want to stay put. The stay-putters worry what may happen between the moment the foot-out-the-door folks decide to leave and the moment they actually exit. In the interim, the stay-putters may continue to cooperate, but the foot-out-the-door folks are now playing a transitory and short-lived game. The stay-putters may worry that, during the interim period, which can happen at any time, the foot-out-the-door folks will take advantage of them, either by overexploiting or underinvesting in the commons resource."). leave the commons at any moment. But each commoner also knows that others can leave at any moment, raising a serious concern for those who want to stay put. The stay-putters worry what may happen between the moment the foot-out-the-door folks decide to leave and the moment they actually exit. In the interim, the stay-putters may continue to cooperate, but the foot-out-the-door folks are now playing a transitory and short-lived game. The stay-putters may worry that, during the interim period, which can happen at any time, the foot-out-the-door folks will take advantage of them, either by overexploiting or underinvesting in the commons resource.").
350. Heller, supra note 36, at 688.
351. See Klopf, supra note 18, at 18.
352. See supra note 221 and accompanying text.
353. See supra note 247 and accompanying text.
354. See Cooter, Inventing Market Property, supra note 21, at 773-74.
355. See Vegter, supra note 61, at 556.
356. See id. at 557-60.
357. See also Melissa A. Jamison, Rural Electric Cooperatives: A Model for Indigenous Peoples' Permanent Sovereignty over Their Natural Resources, 12 Tulsa J. Comp. & Int'l. L. 401, 422-37 (Spring 2005).
358. Lee J. Alston, Gary D. Libecap & Bernardo Mueller, Titles, Conflict, and Land Use: The Development of Property Rights and Land Reform on the Brazilian Amazon Frontier 17 (1999).
359. Id.
360. See Connell, supra note 1, at 274-301.
361. Id.
362. Dagan & Heller, supra note 185, at 590. In the liberal commons structure Dagan and Heller propose, decisions are governed by majority rule.
363. Rynkiewich, supra note 12, at 51.
364. See id. at 51-52.
365. Many scholars of customary law in PNG have noted its responsive nature. The most comprehensive region-by-region study of customary laws in PNG also reflects their fluidity. See generally Customary Law in Papua New Guinea, supra note 53. For example, a small number of customary societies have not adopted a formal system of law at all: Investigation of the customary law of the Abelam people in this area revealed relatively few generally agreed upon substantive rules. Their customary legal system appeared to be less of a system of application of formal legal rules to a given fact situation and more a flexible and changing system of ensuring an equitable solution through compromise.
366. Id. at ii.
367. Further, even in societies that have developed more formal laws, succeeding generations have modified traditional principles: in the Madang province, for instance, "[i]t is evident ... that ... traditional values ... have lost their meaning .... The many changes are due largely to formal education [;] ... the impact of commercial activity (cash economy); church influence[;] and declining knowledge of ancestral ways even among the older people." Id. at 44-45. Some clans have also modified their customary practices with respect to land in response to changing economic conditions. In the Western Highlands, [1]and was never a problem in the past, because people were never permanently settled on the land because of tribal fights. There were also fewer people[,] allowing more land for gardening, etc. However after the colonial practice of buying land [,] ... people realised that land should be preserved and protected by individuals, so individual members of certain clans started to claim the land on which they once built houses, because they realised the economic benefits for themselves and their children. Further, even in societies that have developed more formal laws, succeeding generations have modified traditional principles: in the Madang province, for instance, "[i]t is evident ... that ... traditional values ... have lost their meaning .... The many changes are due largely to formal education [;] ... the impact of commercial activity (cash economy); church influence[;] and declining knowledge of ancestral ways even among the older people." Some clans have also modified their customary practices with respect to land in response to changing economic conditions. In the Western Highlands, [1]and was never a problem in the past, because people were never permanently settled on the land because of tribal fights. There were also fewer people[,] allowing more land for gardening, etc. However after the colonial practice of buying land [,] ... people realised that land should be preserved and protected by individuals, so individual members of certain clans started to claim the land on which they once buil
368. Id. at 121. This transition from communal to quasi-private property ownership signals the capacity of customary law to respond to economic pressures.
369. Cooter, Inventing Market Property, supra note 21, at 774.
370. Customary law has also been central to the development of other areas of law in PNG. For example, Sinclair Dinnen of the National Research Institute has evaluated the central role of traditional and modern forms of social censure and self-policing within customary groups in ensuring a responsive criminal justice system accessible to the population directly affected by it. Dinnen argues that granting primacy to customary law is the "only direction for criminal justice that offers any real hope of progress in Papua New Guinea." Sinclair Dinnen, Custom, Community, and Criminal Justice, in Custom at the Crossroads (Jonathan Aleck & Jackson Rannells eds., 1995) 167.
371. Rynkiewich, supra note 12, at 50.
372. Trebilcock, supra note 13, at 399.
373. Nancy Sullivan, Introduction, in Culture and Progress, supra note 12, at 5, 29-30.