Land Tenure Law: An Overview

Land Tenure Law

• Land tenure law is a legal field which deals with the rights, restrictions, and responsibilities associated with land ownership, use, and transfer.

Meaning of Land in Law

• Under Roman Law, ownership of all the soil extended from the heavens to hell.
• Common law includes the surface of the earth, soil beneath, air above and all things affixed to it, including minerals, excluding Gold & Silver
• In PNG customary contexts land ownership was passed down orally through generations
• Rivers, trees and mountains are used to mark portions of land belonging to a particular family in the clan

The Feudal System

• Land was held under a chain of feudal relations, with the king at the top, aristocratic tenants in chief, intermediate tenants, and the tenant who occupied the property.
• Each piece of land was held under a particular condition of tenure, in return for a certain service or payment; for example an armed knight would provide service for a certain period
• Succession to tenancies was regulated by different estates, or rights in land, which determined the duration of the tenant's interest

Tenures or Services Included:

• Free Tenures(knight service)-required to serve the king by military service for 40 days each year.
• Serjeanties: nonmilitary services to a lord in exchange for land.
• Spiritual tenures and free socage: holding of land by tenant in return for nonmilitary service to the lord.
• Incidences relating to free tenures were burdensome, homage, serve the lord with oath, break it and commit serious offence.
• Death of a tenant results in Lord claims money from property
• Suit in court is a tenants duty to attend court and perform duties
• Aid-assist his lord pay debts and fines
• Marriage-barons consult king on marriage of barons daughter.
• Escheat and Forefiture forfit to the state
• Tenure at will (normally not inherited)-depended on their existence, at death it went back to the owner of the land.

Freehold Land

• Owner has title in perpetuity and can pass onto his surviving heir.
• Freehold title system was common for plantations in the 1800s
• The Land (Ownership of Freehold) Act 1981-s26 restricts transfer of freehold land

Meaning of Land Under Custom

• Section 4 of the Land Act states that all land that is not consider customary is property of the state.
• Land Act 1996 clearly states land owned or possessed by automatic citizen community of citizens by virtue of rights/belonging is regulated by custom.
• Customary Land cannot be solved/disposed through a contractual agreement?

Meaning of Land in Modern Context:

• Cujus est solum eius est usque ad coelum et ad inferos-to whomsover owns the soil extends to the heavens and hell
• "Land means to include the soil and everything above and below the soil and includes land below low water mark and within jurisdiction and land covered with water and to rivers and streams
• "In an instrument to which this section applies, "land" includes all easements and appurtenances appertaining to the land described in the instrument or reputed to be part of the land or appurtenant to it
• The surface and any ground beneath the surface of the land
• All bodies of water including foreshore, offshore areas, river, stream, estuary, lake or swamp plus any interest in the land

Connection to Land

• Strong connection exists between indigenous people of PNG and the land
• People are inseperable and the community is the heart of economic, cultural, and spiritual foundations of society.
• Individual and group sense of social identity and belonging
• The land is life, physical life-food and sustenance, social life, and only world

Minerals and Petroleum

• Most if not all mineral and petroleum projects is found on customary land.Should customary land owners also own the minerals and petroleum?

Legal Arguments

• Mining Act and Oil and Gas Act vests ownership of minerals and petroleum in the state
• Legal issues regarding land falls under Hieracy of Laws and Judicial Interpretations
• CPC wanted collective ownership of minerals and petroleum.The Constitution was ammedned section 212(b) and section 6 of the Oil and gas to reflect this per Salika Chief Justice