James Cook University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
James Cook University Law Review |
|
* MPhil (Cantab) PhD (Massey) Senior Lecturer at Papua New Guinea University of Science and Technology.
** LLM (Cornell) SJD (NYU) Associate Professor of Law at James Cook University.
Abstract Sovereignty, the plenitude of political and legal power that a modern state wields in relation to a defined territory and people and things within it, would appear fragmented in the case of Papua New Guinea. Granted that even with regard to the older and established nations the idea of an illimitable, indivisible and inalienable sovereignty cannot stand careful scrutiny, in the case of Papua New Guinea the determination of the attributes and content of sovereignty becomes even more problematic due to many factors. The most important of these is the status of customary law and its appurtenant incident of customary tenure.
Sovereignty belonging to the nation-state paradigm of 18th-century European traditions was imposed on Papua New Guinea at Independence. A concomitant of this type of sovereignty is a legal system comprised of the received common law and customary law. In this paper it is argued that sovereignty therefore appears fragmented, especially where land proprietorship is in issue.
Mismatch between the imposed form and indigenous forms of sovereignty tends to weaken the ability of the state to maximise good and effective governance. Fragmentation of sovereignty is the consequence of divided allegiance among the populace of the state at the centre and the community at the local level, invariably the situs of particular clan or tribe land, where clan membership determines rights to the use and enjoyment of such land and its resources. The imposed sovereignty merely fractured but did not obliterate local allegiance to, and the primacy of, community solidarity. The Constitution of Papua New Guinea exacerbates the problem in its prohibition of the taking of property without ‘just compensation on just terms’.[1]
Therefore, attempts to refine theories of legal pluralism to fit the Papua New Guinea context from the point of view of conventional legal theory, especially the positivist theory of law, fail because of the aversion of positivist theory of law for any discussion of the political and decisive aspects of law. Similarly, attempts to theorise legal pluralism from the purely anthropological point of view, with the possible exception of the Malinowskian and Cambridge group, fail because anthropological theory offers no coherent view of politics beyond that practised at the community level. Formal legal theory implicitly acknowledges the state, and emphasises the ordering of the legal decision- making process, while folk-law theory is based on the idea of community norms and the desire for the emancipation of minorities through the devolution of decision-making powers. Tensions between these theories have their origins mostly in Hegelian conceptions of emancipation and liberty.
The modern sovereignty of the Western democracies is the outcome of several centuries of historical change. During the lengthy historical process of its formation, it was shaped by a complex amalgam of events and ideas that in many cases transcended the boundaries of the individual European and North American nation states.[2] In some cases the sovereignty of a region was ceded willingly to a centre; in other cases it was contested and lost to the centre. In many cases this contest has since acquired mythical significance as the crucible of conflict out of which the respective modern national identities were created. As such these events have become the heritage of nationhood in the popular mind in many countries. In contrast, in many parts of the Third World, sovereignty did not so much evolve as arrive uninvited in the wake of imperialism, decolonisation and neocolonialism — now conflated with Washington-sanctioned globalism.
For many developing countries the state was created by colonial fiat; borders were drawn sometimes indiscriminately, administrations established and a modern sovereignty imposed, all within the last one hundred years. The imposition of an administration and the attempt to create a state from the top down has had many consequences for these nations. This paper discusses some of the consequences of the arrival and inauguration of statehood in Papua New Guinea and the implications of sovereignty contestation and the multiple legal plurality that characterises Papua New Guinea today.
Today, in a modern democracy, sovereignty (albeit undergoing rapid and radical transformation under globalisation) of the state is beyond question. In contrast, in Papua New Guinea the imposed sovereignty of the state has been questioned and contested since its establishment in the colonial era. The idea of an independent, Papua New Guinean nationhood is only weakly sustained by the narrative of liberation from colonial oppression. Nation building has proved to be a Herculean task for the new nations which have emerged from colonial tutelage, and Papua New Guinea is no exception. The continuing questioning of the sovereignty of the developing state has complex consequences for the political life of the nation and its regions. While producing some familiar effects, which may include vote buying, corruption, parliamentary floor crossing, electoral slush funds, wantokism,[3] destruction of state property, compensation demands, maladministration and social disruption, the political existence of a sovereignty never regarded as legitimate in the face of many competing sovereignties is also responsible for the creation of variant forms of politics and struggle contests that may have no equivalent in the developed countries. The politics of sovereignty confrontation introduces elements of uncertainty into the politics of the modern liberal democratic state. In Papua New Guinea the widely contested character of the sovereignty of the state, the creative assertion of regional and local sovereignty and the element of uncertainty in politics creates a politics without parties and issues and is likely to introduce an element of cultural jeopardy into many people’s’ lives. Sovereignty confrontation cannot be divorced from the land issue because the contestation tends to be parochial and localised and therefore inextricably intertwined with it. This paper focuses on the following areas of conflict:
(b) Conflicts between state law and customary law (c) Conflicts between customary laws (d) Conflicting ideas about justice (e) Conflicting ideas about legal process (f) Conflicts of sovereignty
Land was valued because of what is symbolized at least as much as for what it produced — it was the source of identity for individuals and groups as well as the basis from which almost all subsistence requirements were met … The group was the land — its ancestors were buried in it. Through membership in the group, the individual derived his or her social status, power, livelihood, name and rights to land [4]
Sack expresses similar ideas in relation to Papua New Guinea when he says:
Ancestors added a timeless aspect to the territorial claim of the group. The group did not only consist of its living members but included the spirits of the dead ancestors to whom the living members were responsible for the use they made of the group’s territory. The group as a land holding unit was immortal. Once it had been identified with a territory for more than one generation, it left a mark on the land which could never be fully distinguished as long as memory lasted.[5]
The significance of land to Papua New Guinea nationals is also underscored by the fact that, in Papua New Guinea, land is classified as either alienated or unalienated. Alienated land is land acquired from the traditional domain, whether by voluntary or compulsory processes, and comprises only 3% of the land mass of Papua New Guinea. Unalienated land, on the other hand, is land within the dominium of indigenous people and is governed by traditional laws and customs. This comprises 97% of the nation’s total land mass.[6] The feudal link between the sovereign and imperialism, intrinsic to the colonial model, does not exist. This is a profound structural deficiency upon which to build a ‘nation’ on the liberal capitalist model.
Indeed in most non-Western and indigenous societies similar views are prevalent. Asante writes on West Africa: ‘Land was an ancestral trust committed to the living for the benefit of themselves and generations unborn.’[7]
In the Australian landmark decision of Mabo v Queensland (No 2) the High Court affirmed that in relation to indigenous Australian native title, ‘its incidents and the people entitled thereto are ascertained according to the laws and customs of the indigenous people who by those laws and customs, have a connection with the land.’[8] This is a reverberating rhetoric that is almost impossible to translate into political and legal reality in a state conceptualised in terms of Austinian sovereignty.
Also, legal pluralism is a conceptual device designed to mitigate the dysfunctionality of sovereignty where multiple sovereignties have existed since time immemorial.[9] It helped to buttress the power base of local dignitaries, the chiefs, and consequently the effervescent effect of imperial presence. The imposition of English law as well saw the manifestation of a paralleled or plural legal system. The British would proudly proclaim subsequently: ‘wherever we went, we preserved systems which elsewhere have become extinct’.[10]
Interesting comparisons can be drawn here between the situation of Papua New Guineans and that of indigenous Australians. While in an extractive colony the imperial power avoided wholesale appropriation of land, in a settler colony the acquisition of the colony rested on the fiction of terra nullius and justified the dispossession of indigenous people. Thus in Australia, for example, sovereignty was all-encompassing and the King’s writ ran throughout the continent. However, indigenous people were left pretty much on their own, generally speaking, in settlements, living out their lives according to their time-honoured customs and traditions which the established political legal order denounced as either barbaric or as not having anything remotely resembling a legal system.[11] However, in exercising its criminal jurisdiction, the judiciary was prepared to take into account for sentencing purposes the Aboriginal background of an accused person if he were an indigenous Australian.[12] The Mabo decision has revealed the fallacy in that kind of judicial posture. Customs and traditions have been relevant to tenurial issues among indigenous Australians since time immemorial.
The juxtaposition of sovereignty and community ownership of land under customary law or traditional institutions gives rise to conceptual and practicable contradictions. A fundamental incomparability is clearly discernible between sovereignty and community ownership of land under customary law: the former represents an alien cultural contraption superimposed sometimes coercively on an unwilling people who hardly have any comprehension of its implications; the latter is indigenous and symbolises the ethos of community existence and the status quo.
On the New Guinea side the German New Guinea Company established and extended its authority by similar means. German interest in New Guinea was initially purely commercial. The German New Guinea Company Annual Report for 1886–87, the second year of operations, describes the establishment of an armed native police force.[15] The Annual Report for 1892–93 provides details of an administration vengeance expedition on the Gazelle Peninsula in 1893. It reads:
… the shells, fired from a distance of 5–7 km, had the effect of killing one native and paralysing another with fear.
As a result of this campaign, all the inland tribes have now declared their readiness to pay in diwarra the indemnity demanded from them during the first visitation by the Administrator, and have in fact paid it in whole or in part. Where this has not been done, it is nevertheless regarded as certain that the remainder will be paid and peace thereby restored. The collapse of the resistance is attributed not least to the impression made on the natives by the firing of the shells. They now believe that no distance would be great enough to guarantee their safety from the white man’s missiles.[16]
The commercial interests of the Neu Guinea Kompagnie (German New Guinea Company) were clear-cut, and the German government support for these interests was virtually unquestioned. The company later served as the vanguard to imperial involvement. Sovereigns hardly risk capital in speculative ventures. That was a matter for private enterprise. On the Papuan side commercial interests were less to the forefront, and after Papua passed into Australian control following World War I and under the Murray administration, a form of benign paternalism held sway for many decades. But what is striking is that while the commercial, or exploitative, capitalist elements in the two colonies differed greatly in their expansionary force, the claimed sovereignties for the two colonies were conceived of and implemented in remarkably similar ways and ultimately shared the same geo-political and economic agenda.
From the time of the imposition of sovereignty much of the subsequent history of Papua New Guinea can be viewed as a long-running attempt by administrators to coerce or suborn individuals to act out the sovereign fantasies of the administration in opposition to their local communities. But these are well-known facts that were not only repeated in many British colonies during this period but were also repeated on a smaller and more local scale on the expanding administrative frontiers of lesser and more local officials.
In Papua Sir William MacGregor expanded his administration by declaring districts and appointing Resident Magistrates to administer them. A Resident Magistrate writing in 1897 commented on the effectiveness of the pacification programme in the following terms:
I think that the chief cause [of their peacefulness] is due to the fact that the natives now thoroughly understand the intentions of the government, and recognise in it a superior power, which alone makes an impression on the native mind, but more so, when that power acts as their protector, not only from the unlawful actions of unscrupulous Europeans, but also from violence by their own countrymen.[17]
The aggressive drive towards the assertion of an unquestioned sovereignty is typical of the colonial ‘official mind’ during the imperial period. Colonial officials thought of their administrations as ‘rule of law’ states, and the extension of colonial authority as an extension of the rule of law. Kuklick, discussing the characteristics of the imperial bureaucrats of the late 19th and early 20th centuries, comments on their attachment to:
the recapitulation hypothesis: the growth of each individual and every society invariably repeated a single linear developmental sequence. The evolutionary stages leading to the development of civilization were invariant; what differed were the rates at which societies changed, modified by environmental factors. All of a people’s characteristics were interdependent ... Within any given society, at no matter what level of evolution, it was the elite that was most advanced, the lower orders that were closest to primitive nature. The purpose of British colonial rule was to accelerate evolutionary trends ... [and it was] presumed that as societies evolved, their political organization becameincreasingly centralized, resulting in the formation of strong native states with patriotic populations.[18]
This view is also premised on the thesis of a single trajectory of development — ever upwards towards the liberal state or market capitalism, or its antithesis towards the communist state under the dictatorship of the proletariat. The widespread acceptance of this high doctrine of the state and the sovereign power of the colonial authorities reached its apogee with the publication in 1922 of Lord Lugard’s The Dual Mandate in British Tropical Africa with its discourse on the principles and practices of the administration of ‘subject races’. The title page quotations include:
It will be the high task of all My Governments to superintend and assist the development of these countries ... for the benefit of the inhabitants and the general welfare of mankind. HIS MAJESTY THE KING[19]
What is of interest to us, however, are the following points:
• Sovereignty makes absolutist claims;
• Sovereignty is established by the exercise of force;
• Sovereignty has an expressively decisive character in its quotidian aspects.
Sovereignty does not question itself. Discussion there may be on administrative policy matters, but there is no record of doubt on the issue of sovereignty. Sovereignty in the colonial conception has rock solid qualities. The legal order of the state is ultimately the Austinian type: that is, sovereignty based on threats.[20] These decisions arise not so much from the circularity of law and state as on the ultima ratio of the decree. Complaining that Papua New Guinea had ‘never produced a leader “capable of uniting two contiguous glens”’, MacGregor intended to do just this.[21] The instrument he used was armed force. The concept he imposed was sovereignty. The cloak of legalism is associated with the state at its inception. However, the state is not lawful by foundation; rather, its lawfulness derives from the fact that it establishes and imposes and cloaks itself with law by decree.
In practice, however, the straightforward extension of the colonial legal system into indigenous communities required recognition of, and a measure of adaptation to, existing native custom. It was in this process of accommodation and adaptation that the colonial state met some limits to its claims for a wide ambit and an evolutionary intent. While the coloniser brought capital for development, land and labour provided access to critical local resources. The fundamental split has therefore always been over land and its ownership.
The art and practice of colonial administration revolved largely around law and its implementation, extension, adaptation and evolution. Colonial officer trainees were educated in the languages of their colonies, administrative law and the study of native customs. Colonial anthropology, in many cases established with the support of the colonial administrations, was from the turn of the century dominated by preoccupation with the determination of the rules and laws of kinship and the explication of the labyrinthine complexities of particularising native customary and traditional case law.[22]
Malinowski’s pioneering fieldwork in the Trobriand Islands established the ground rules for the anthropological study of customary law.[23] According to Malinowski, customary law had some of the characteristics of a system, its symmetry deriving not from its politics, but rather from its function of meeting fundamental human needs.[24] Less ambitiously, later ethnographers saw customary law as enshrining, more or less systematically, community norms and performing dispute resolution functions. Fieldworkers found a convenient tool in dispute resolution mechanisms. Dispute resolution provides them with something to do; it engages and involves the fieldworker with the people among whom he or she is a participant observer. It fills notebooks with observations which later lead to extended explanations. Disputes when recorded have real, almost palpable overtones. They involve real people and their emotions. Dispute analysis as a means of approaching the analysis of social reality also reflects a rather Anglocentric view of law.[25] It is the view of these writers that the discourse produced by dispute analysis reproduces some of the characteristics of English common law discourse, particularly the presumption of an absolute character to custom itself.[26]
An important characteristic of traditional law in preliterate societies based on oral tradition is its dependence on memory. Its existence in the living memory, in human time, is its most important structuring characteristic. Practically speaking, how does this come about? Human time, the present, is never confined to the present, to just the here and now. In every society there is some sort of conception of a future and a past. The transit of the generations at least ensures that this is the case. In every society the past is better known than the future because of its existence in human memory. Old people know the past as part of their lived experience. Young people know of the past only by learning from the old. In any kinship system, simple or complex, older people have a more certain knowledge of relationships that actually existed or are remembered as having existed. Old people are able to cite practical rules based on their experiences and to draw morals and define what is right and proper. In doing so they may invoke religious sanctions, supernatural power, beliefs, or some form of socially sanctioned authority. But there is a sense in which memory is the authority. In traditional societies, whatever form authority may take in the present, it shows a dependency on the past; it is built out of memory of the past. The past in human terms is a memory of people, names, incidents, events and places. It is this incidental base that gives customary law its multiplicity of cases, its wide-ranging variability of principles and its ability to create itself anew with each generation. Some critical historiographers, however, make a break from official history and colonial anthropology and expose the raw character of power masked by the trappings of civilization.[27].
Traditional Papuan society regarded instances of ill fortune as being the product of evil-intentioned individuals using sorcery. Group feelings could run high where such instances occurred, and those individuals who were known to be practitioners of sorcery might be punished or forced to make retribution for damages. [29] Sorcery was and is still today abhorred by many Papuans. Missionaries also opposed and abhorred sorcery, and many Papuans, both directly and as a result of mission influence, made representations to the colonial authorities to proscribe sorcery.[30] Papuan attitudes to sorcery and the administration’s response to shifts in the balance of power and authority in Papuan society are well documented.[31]
The official response was not to ban sorcery, as this was considered a matter of personal belief, but rather to create the offence of ‘pretending to practise sorcery’ or alternatively the offence of ‘spreading lying reports’.[32] Elsewhere in the British Empire, however, the ‘repugnancy rule’, according to which customary law was unenforceable if it was contrary to equity and good conscience, was the norm.[33]
In this way the administration could officially claim to give no credence to sorcery, to allow sorcery to persist as a belief and hence outside the ambit of the law, and to suppress its manifestations when they were such as to cause public unrest. In West Africa, however, the recognition of personal belief made it possible for society to be organised along spiritual and temporal lines.[34]
Because of its jurisdictional sovereignty paradigm the new colonial legal system showed a marked disinclination to recognise authority outside itself. There were complex reasons for this. One was the tendency for the colonial administration not to recognise the time dimension within Papuan society. Administration officials came to villages as outsiders, made short visits and left. Their lack of extended contact over time and frequent transfer to new districts meant that their grasp of time-related social processes was minimal. Insofar as the time element in the Papuan villager’s life was perceived, this was defined by the administration as ‘custom’. Custom was a complex concept in colonial culture. On the one hand native customs were thought of as being simply inherited and having the force of moral law. From this point of view the administration sometimes described the natives as being ‘slaves to custom’[35] and hence trapped in an irrational past which history and the national development process would simply have to grind down. On the other hand, and with much encouragement from the Malinowskian ethnographers, custom was assumed both to have, and to be explained in terms of, its utilitarian properties. Associated with this was the equally widespread view which maintained a posture of regret that the old ways were passing and that native beliefs were being eroded, traditional authority weakened and the morality of the village destroyed.[36] These contradictory themes were very much part of the anthropology of the colonial period. Anthropologists wrote both classical ethnographies, which presented a timeless view of societies and cultures existing largely without reference to an external political environment, and, at the same time, booklets for colonial administrations on subjects such as modernisation, education and the management of social change.[37] To some extent both these tendencies were reinforced by the development of fieldwork anthropology. Indeed, the fieldworker did not spend more time than the administration official in the village. However, there is a strong pressure within the discipline to put things together, in the sense that the fieldworker’s account of village life is taken out of time and presented in such a way as to construct a functioning system, a seamless web of functioning interrelationships held together by moral values.[38]
When the administration official entered the village he necessarily became involved in the process of dispute settlement. It was quickly recognised by Papuan litigants that the involvement of the administration made the outcome of the process very uncertain. In the first place most administration officials were too impatient to listen to the wealth of historical detail that Papuans can bring to a dispute. In the second place most administration officials were unable to comprehend issues that had no resemblance to Anglo-Australian conceptions of the law governing sale and exchange. To the extent that they could find and recognise something approximating this in a dispute they tended to rule accordingly.[39] Hence it was possible to get an enforceable administration judgment that went entirely against the Papuan grain and that might satisfy none of the parties.
To this extent the colonial legal system appeared to the villager as arbitrary and capricious and blatantly disrespectful of Papuan authority.[40]
In practice the duties of a colonial administration at the end of the 19th century were to administer the law and control public order; to raise revenues sufficient to meet the costs of administration; and to monitor and control the process of capitalist economic penetration and development by systems of land tenure laws and labour laws. Land tenure laws made land available for expatriate capital and development, and labour laws were directed at the control of the use of native labour by these commercial interests. In a wider sense the administration was engaged in the process of attempting to define and manage the introduction of capital and property rights along the moving frontier of statist expansion, while avoiding the violent political confrontations associated with native land alienation and excessive capitalist exploitation.
The formal recognition of customary law in Papua New Guinea remained an elusive target in the colonial period. In view of the very large number of languages (more than 700) and vastly greater number of social identities, the task of recognising and responding to the regime of indigenous customary law was understandably too much for the colonial authorities. Additionally, the diminution of the significance of the pre-colonial Papuan physical boundaries contributed to the atomised tendencies and custom variability of Papuan societies. Accordingly, the lasting heritage from the colonial period is the continuation of the more or less traditional local group, with a solidarity based on land ownership, that constitutes the atomised, fragmented and sometimes warring civil society of the region, village and locality in Papua New Guinea today.
After World War II there was a general worldwide movement towards decolonisation. This movement had diverse intellectual origins that included the anti-slavery movement, anti-imperialism, Fabianism and Fanonism, among others. During this period the colonial state was widely perceived as a brake on development and growth, and the newly- independent states were expected to realise a Promethean transformation in full-blooded Anglo-American capitalist mode.
The most influential theorist of third-world emancipation during this period was Frantz Fanon. Fanon’s personal experience of race prejudice in metropolitan France greatly influenced his thinking and he was acutely aware of the extent to which African culture was denigrated and despised by many Europeans during this period. In two novels Fanon attempted to raise the status of African and Caribbean culture by asserting its values in the face of the European assumption of superiority.[41] In the course of these works Fanon developed the notion of the culture of the Third World. Until Fanon, the concept of the Third World was simply an economic category with no cultural dimensions except that of being ‘backward’, ‘swamped in ignorance’ and ‘fettered by tradition’. Fanon’s writing gave the Third World both a cultural existence and a political agenda. Fanon argued that the culture of the Third World was viable and modern and that politically it needed to be freed from the demoralising and evil effects of colonialism in order to realise its full potential. According to Fanon, colonialism was a gigantic psychological destruction machine that destroyed people by always insisting on the dividing line of race and by emphasising the inferiority of the colonised. Fanon also concluded, as did Hobson, that colonialism was destructive of the best liberal values of European civilisation.[42]
Fanon developed his political theories in the two highly influential books mentioned above. In these works he drew on the Kojèveian reading of Hegel’s concept of the master/slave relationship and the role of this relationship in the Hegelian dialectic of historical progress.[43] Following Hegel, Fanon argued that the consciousness of the master and of the slave is always different. The master thinks of the slave or servant as an object, something that is there to do the bidding of the master. The consciousness of the master is a consciousness of self alone. But the consciousness of the slave is always greater than that of the master because the slave is aware not only of himself as a person but also of the master as a person — how the master is thinking, what his moods are, etc. But the consciousness of the slave is not only a consciousness that includes two people; it also includes an awareness of the slave’s status as slave. Fanon argued that this inequality of relationship gives the slave a greater consciousness of himself and the world than that experienced by his master, who remains limited to a consciousness of himself and his power. According to Fanon, this consciousness of inequality on the part of the slave gives rise to a sense of grievance and, ultimately, to the possibility of a slave revolt and liberation from the tyranny of the master. Fanon argued that this was the situation of the colonised nations. The consciousness of the colonised ‘natives’ is always greater than that of their masters, and the various wars of liberation taking place in the colonies during the time he was writing were evidence of this fact. Out of the ‘native’ experience of colonisation a consciousness of national identity is formed, and from this comes the drive for political liberation and independence.
In Fanon’s view, colonial regimes were an active brake on the process of development, and the overthrow of colonialism should be understood as an outcome of the operation of that Hegelian engine of history, the dynamics of the master/slave relationship. Accordingly, the overthrow of the political tyranny of colonialism and the removal of the pernicious and economically oppressive effects of racism would lead to a spontaneous efflorescence of ‘indigenous’ cultural values. This in turn would lead to political self-determination and the removal of the ‘brake’ from the economic development of the former colony. Fanon, by writing a third- world version of the Hegelian narrative of progressive, emancipatory history, had an enormous influence on the rhetoric of liberation as a philosophy of consciousness and as a political and cultural theory for the Third World, both in the Third World and in the developed world. This influence continues to the present day.[44]
The collision between modernity and tradition has long been recognised as a major potential source of conflict in Papua New Guinea. Oliver’s reports on the impact of the giant Bougainville copper mine on the Bougainville villagers, written during the 1970s, contain many prescient comments and warnings.[46] What was not fully understood at that time was the extent to which many of the conflicts provoked by the development process had their roots in custom, that customary law processes would prove inadequate to the task of resolving inter-group disputes, and that some landowner groups would respond to the inter-group conflict by reasserting the sovereignty of their customs and laws in their pursuit of justice and the redress of grievance by force. Similar comments may also be made about the recent court cases in Australia between the Lower Ok Tedi landowners and the giant Australian company BHP, the ‘guiding hand’ behind the Ok Tedi Mining company.[47]
In any society, and Papua New Guinea is no exception, modern state law includes among its many functions that of regulating and containing conflict. Laws tend to be effective in so far as they are known, used, and provide consistent and uniform solutions to a range of problems. Laws may be ineffective insofar as they are unknown, unused, give rise to variable solutions or are seen to harass people in the conduct of their ordinary, everyday lives. These are the common problems of law and legal education. Some problems, however, are unique to the Papua New Guinean context of endemic legal pluralism and sovereignty contestation,[48] and raise special difficulties.
Underlying these systemic difficulties, legacies of the colonial state, lie some unresolved policy problems in the area of law and development. This point will be illustrated with an example from the field of environmental law.
The primary piece of legislation governing the environment in Papua New Guinea is the Environmental Planning Act[49] (EPA) passed in 1982. The passing of the EPA followed the Stockholm initiative which called on legislatures to make legislation at the national level governing the relationship between development and the environment and setting standards for the protection of the environment.[50] In these respects the EPA followed ‘best practice’ as it was understood at the time, and contains clauses reflecting recent advances in environmental thinking such as ‘“environment” means the total stock of physical, biological and social resources available to man and other species and the ecosystems of which they are a part.”[51]
The EPA widened previous legal definitions of ‘environment’ to include not only flora and fauna but also natural features and ‘social resources’. The Act was intended to be the primary vehicle for the assessment of environmental impact of major development projects, and requires developers to submit for approval environmental plans and impact assessments. In these respects the EPA is unexceptional. In practice, however, it has proved to be ‘dead law’ in the sense that since its passing it has engendered no prosecution, nor is it likely to do so. The reasons for this are complex. They involve: the exceptionally wide powers of ministerial discretion that are granted under the Act; the idea within the Act that matters of national interest will override environmental protection conditions; the limitation of the juridical scope of the Act (which had the unintended and undesirable consequence of forcing the Lower Ok Tedi landowners into an offshore jurisdiction); and the administration of the Act. It must be said, however, that non-implementation of environmental legal prescriptions is ubiquitous. This is because when development, viewed from the narrow perspective of economic growth, confronts conservatory values head-on in a normative system, what so often happens is that growth trumps conservation and sustainable development.
What is of interest in this context, however, is not so much the limitations of the Act and its administration, but rather the underlying policy problems. The principal problem is that while the Act more or less satisfactorily performs its allotted task at the national level, it is now widely recognised that the protection of the environment must, in order to be effective, be grounded in local interests. The role of national legislation is to set certain standards, to ensure uniform codes, to establish principles, and to supply a legal framework for local activism. Accordingly, many countries have tended in recent decades to make legislation the national interest and regulation the local interest. The duty of care for the environment is found in its most effective form at the local level, and an important purpose of national legislation is therefore to give an effective legal voice to local and community interests. In Papua New Guinea this latter feature is non-existent.[52]
The structure of the contemporary legal system in Papua New Guinea is unusually complex. The Constitution, while establishing the primacy of parliamentary legislation, also recognises the existence of customary law and common law. The relationship between these three kinds of law is not fully worked out in the Constitution and it has been clarified neither by later legislation nor by judicial decisions.[53] Among the many difficulties is the fact that the Constitution does not identify ‘customary law’, but rather indicates, only, ‘underlying law’. It was the intention of the authors of the Constitution that subsequent statutes develop the concept of underlying law by defining and incorporating customary law points and principles into the legal system. This has not been done. Nevertheless, a hierarchy of laws has been established.[54] Orr has pointed out:
Customary law is subject to written laws and common law is subject to both. Firstly, customary law is not adopted where and to the extent that it is inconsistent with Constitutional Law (the Constitution and the Organic Laws). There may in particular be clashes between, on the one hand custom, and on the other hand the National Goals and Directive Principles, the Basic Social Obligations and the equality of citizens (s 550). In all cases the constitutional requirements prevail.
Secondly, ‘custom’ is subject to statutes ... [and under the powers granted by the Organic Law on Provincial Government (OLPG)] ... the provincial Act, regulation or rule will prevail over custom.[55]
The effect that customary law has on common law has not yet been established; nevertheless it appears that where there is an inconsistency, custom applies and not the common law.[56] It is unlikely that any significant advances will be made towards clarifying this situation for a considerable period of time. The existence of these problems within the legal system has had the unfortunate effect of diverting attention away from the underlying policy problems. Whatever the legal confusion this entails, there remain the larger problems of the relationship between law and civil society.
The law enforcement function of the police is quite well understood in rural and village Papua New Guinea. There is a long history of colonial policing and a continuation of the colonial practices and policies into the modern period. However, in recent decades the ability of the police to function as a paramilitary force, a direct extension of the power of the central state, has declined. This decline has been paralleled by the rise of assertive local sovereignty.
Local communities, with a solidarity defined through tribal or clan land ownership and perceiving the state to have failed in its developmental tasks, have in recent years frequently confronted the state with assertive sovereignty and compensation claims. The response of the state has been, in many cases, to avoid confrontations and to meet local group compensation demands for both real and imagined wrongs. The moral basis of these claims is to be found in the customary law of the group. But the same landowner group pursuing similar customary law claims against a near neighbour may find itself enmeshed in a violent conflict. In these contemporary regional conflicts the police and the state are reduced to being largely powerless bystanders playing, at best, a mediating role between the warring parties.
What is absent is a regional civil society that transcends the moral community of the village. What is also absent is the statutory law, regulation and rule that both supports and is supported by the institutions of a regional civil society. The reference here is to those aspects of law and society that have little or nothing to do with policing but nevertheless play an essential role in supporting the politics and economics of daily life of all citizens. They have the function of regulating and supporting markets, exchanges, rights and obligations, entitlements — of being the rules of everyday life. These matters are part of every developed society, and their role in the growth and development process has gained in recognition in recent decades. International financial institutions often define growth and development in terms of capitalism in which land acquires the status of a commodity, a thing which is inimical to traditional and customary governance.[57]
When a mineral resource extraction company enters a region for the first time it typically deals with landowners, villagers, forest dwellers, who have been waiting for the state to bring essential services to them for a very long time. They have expectations for the modern. When the company officials step out of their offices and into the village or into the forest clearing to meet with landowners they step into a customary law setting. When liaison officers make their regular trips to villages to hear the ‘talk’, they hear verbiage which comes from a customary law context, and insofar as the talk raises disputatious matters these are such in reference to the villagers’ aspirations for justice to be done according to custom. Land is the physical basis of the sovereignty of the community, and customary law its cultural and legal basis. In order to deal with these matters effectively, community liaison officers must have a knowledge of, and sympathy for, customary law issues. Mining companies ignore customary law and the individual and community desire for justice at their peril.
At the beginning of the mine project the host landowner community may be viewed as traditional. Before 10 years have elapsed, this community will have been transformed by the process of economic differentiation, migration in and out, employment and unemployment, the rise of new forms of politics, and new kinds of households — all the factors that accompany development and that, when combined, create a sharp sense of difference between people where perhaps none existed before. Traditional forms of dissensus frequently continue and may also be sharpened by the progression to modernity. Traditional forms of consensus are found inadequate. Therefore new forms become imperative.
For endogenous economic growth to take place in a developing country, three main requirements or ‘gaps’[60] must be met. The first (and best understood) is the ‘object gap’ — capital, human capital and embodied capital. The second is the ‘idea gap’ — the transfer of ideas from the developed world to the developing country. The third is the ‘trust gap’: in a developing country there is a relative absence of the set of shared expectations, norms, rules and institutions that support the interpersonal exchanges that lie at the heart of the economic life of the market, town and city in a developed society. This is the social element in economic development. It is easy to underestimate the extent to which the institutions of a developed society support modern forms of interpersonal exchange, because their ubiquity ensures that they form mostly a backdrop to people’s conscious lives. The formal legal system of a country constitutes the projecting tip of this complex of ideas and expectations. However, the legal order would not exist without a supporting framework of social practices and attitudes which simultaneously support and constitute the element of trust that is part of all social and economic exchanges and that defines where trust ends and bad dealing, malfeasance, misfeasance and nonfeasance begin.
Development economists have devoted considerable efforts towards the definition and analysis of the object gap, the need for capital and embodied capital, in the developing countries. In recent years some attention has been paid to the idea gap, both to limit and to aid the transfer of intellectual property to developing countries. In each case there is an obvious and prominent role for North/South transfers in overcoming these gaps. But overcoming the ‘trust gap’ in a developing country is strictly a local problem. This further accentuates the status and significance of community and locality in national development, because this gap can be bridged only through individual and personal interactions among people.
The issue of ownership of minerals, petroleum, gas and oil in Papua New Guinea is an intractable one. It is true that the Mining Act 1992 and Oil and Gas Act 1998 superseding the Petroleum Act (Cap 198) vest ownership of such natural resources in the state. However, this has to be posited against section 53 of the Constitution of Papua New Guinea, which outlaws the taking of property without ‘just compensation on just terms’. Under customary law, land includes minerals on or below the surface of the land.
This meaning of customary land is borne out by s 2 of the Land Disputes Settlement Act (ch 45). Commentators on the matter are divided on the issue: some favour state ownership, [61] others proclaim the opposite,[62] and in the middle there are those who simply say ‘We don’t know’, further indications of the disjunction in governance — lawlessness, normlessness and chaos![63]
The constitutional validity of legislation vesting ownership of minerals and petroleum in the state has been challenged[64] and is yet to be determined.[65]
In many colonial states the colonising power represented itself in terms of enlightenment and emancipation, as a modern progressive force, bringing with itself a modern legal system and all that it implies in terms of liberation from the mediaeval, the feudalistic and backwardness. Papua New Guinean societies do not fit into this narrative because they already possessed many of the modern characteristics of personal freedom. Hence the turn to customary law in Papua New Guinea after independence constituted a reaffirmation of the sovereignty of the local community and accordingly an assault on the unitary basis of the modern state. Again, this example of an attempt at decolonisation aimed at redressing the wrongs of colonisation is bound to fail because the tools for repairs were the same as those that created the initial deficiency.
In a broader sense these Papua New Guinean problems fit within the contemporary problem of generating a general theory of emancipation. The late colonial period and the post-independence period were dominated by the idea of rational progress, with the state and its ‘rule of law’ ideology as vehicle for the self-determination of community and individual. However, the conventional rhetoric of liberation and independence frequently conflated the interests of the individual with the interests of the post-colonial independent state. This high doctrine of the state, conceived in the colonial period and buttressed only by the violent authoritarianism of colonialism, was carried forward with little or no modification into the independence period, the newly democratic state, experiencing democratic, Westernised politics within government and the state apparatus for the first time. More than four decades after the onset of the post-colonial independence era, humanity no longer share the certainty that the state can, by adopting high moral principles, enshrine the emancipatory interests of all its citizens and then realise these interests through bureaucratic design. While at the level of the individual, at the very personal level, the specificities of emancipation remain as clear as they ever have been, the potential for the modernising state to use repressive violence in the furtherance of sectional or group interests defined in terms of an absolutist ethnicity is also well understood.
Many developed countries still face sovereignty issues today. In the United Kingdom there are moves to delegate a limited sovereignty to Scotland and Wales. In New Zealand there are the limited claims for Maori sovereignty in respect of certain administrative and juristical issues.[66] However, the concession of sovereignty that is contemplated will have a delegated character and some kind of federal structure is expected to continue as the arena for contestation between the more or less disaggregated parts. In these cases pluralism exists not because the native sovereignties are recognised but rather because a limited and partial sovereignty is delegated by the state to these large and relatively non-cohesive social groups.
In Australia, Aboriginal sovereignty remains still a fond hope. In Coe v Commonwealth the High Court held:
The Aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the laws of the
Commonwealth, or the States or territory might confer upon them. The contention that there is in Australia an Aboriginal Nation exercising sovereignty even if of a limited kind, is quite impossible to maintain at Law.[67]
Such extreme judicial opposition to the concept of sovereignty notwithstanding, it is becoming increasingly evident that indigenous people have attained a modicum of self-determination, as exemplified by the establishment of ATSIC in 1989 replacing both the Commonwealth Department of Aboriginal Affairs and the Aboriginal Development Commission. This however still falls far short of the devolution of limited or partial sovereignty as previously related in the cases of overseas states.
On the other hand, in many cases the high doctrine of the state is peculiarly inapposite in the Third World. The colonial state was a command state. Admitting no politics (except the personal rivalries of the bureaucrats) it functioned more or less effectively as a command structure with public order and, in its final period, developmentalist goals. The post-colonial independent state has, for complex reasons, largely failed to realise these goals. To this extent it is seen by its citizens, the villagers, to be the enemy in the struggle for resources. This, accordingly, gives rise to a new politics — a politics based on the contestation of sovereignty between the village and the state and adding a new dimension to the old contest between village and village. In Papua New Guinea today we can find instances of the kind of bureaucratic capitalism and political kleptocracy that supported Fanon’s later pessimism.[68]
Also in Papua New Guinea we can find many instances of extreme conflict between local groups and between villagers and the state. Some of this conflict may be attributed to the failure of the developmentalist aspirations of the independent state, but much of it falls outside the framework of identity politics and class struggle. And the question is: What is the basis, root or character of this animosity? Politics, a famous writer on the subject says, is emergence
from the friend–foe constellations that challenge the polity to distinguish between allies and enemies; friend–foe constellations arise in the situations in
which civil war or war between states has to be considered an immediate possibility. All human groups ... may enter into extreme conflicts. The state, therefore, is valued because it is the institution which protects its citizens against the enemy within and without.[69]
Modern legal pluralists, in common with other micro-nationalists, seek perhaps to expand a modern ‘micro-’ or ‘semi-’ state within the state. This would seem to be a political act. They seek to establish an order by putting in place a boundary within the state. These boundaries are based on the politics of ethnic identity, a politics that emerges with the formation of the modern state and the simultaneous creation of subaltern histories and their folk narratives. Assertions of legal orders, normative orders, informal rules, etc, to one side, an assertive legal pluralism begins with the assertion that the state is an enemy. We should not ignore the fact. The emerging democratic governance theory is sometimes dubbed the ‘new radicalism’ because it posits a decentralised order or network without a simple hegemonic sovereign. This represents also the new global-order governance.[70]
This conclusion, that the construct of legal pluralism is more of political than legal pedigree, is consistent with the view that sovereignty is a political concept rather than a legal contraption. The view that the acquisition of sovereignty is a political act and therefore not justiciable has also received judicial endorsement.[71]
However, inasmuch as the existence of a politico-legal system (an administration) becomes a categorical imperative in the establishment of ‘continuous and peaceful display of state authority’ as evidence of territorial governance,[72] sovereignty acquires legal dimensions also. It is therefore possible to argue that, since an administration embraces the dispensation of law and justice which is a function of sovereign power, wherever a legal system, however rudimentary, is evident, there must also exist a sovereign which constitutes its genesis. The sovereign may be a group of people — for example, a parliament or a council — or an individual — for example, a president, king or chief.[73]
The uninitiated may have difficulty in accepting the position that non- Western societies can possess legal institutions. For such people, the dicta of the Privy Council in In Re Southern Rhodesia[74] are instructive. Their Lordships said:
Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or ideas of civilized society… On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law.
Even in Australia, Blackburn J was prepared to concede that the law of the Yolgnu people of western Arnhem Land deserved to be regarded as ‘government of laws and not of men’.[75] That realisation did not, however, override a fundamental principle of Australian constitutional law then in existence, that Australia was terra nullius at the time of colonisation.
This state of affairs could support a localised sovereignty, the source of customary law — a local equivalent of a national law which emanates from an external power or sovereign and is imposed from without in the case of colonial subjects. The two are incompatible so conflict inevitably arises from the tussle between them for dominance. A compromise could result from the coexistence of both, culminating in a regime of legal dualism or pluralism. Federation itself today is a veritable case of division of sovereignty, a situation Austin probably never envisaged.
Considered purely from the perspective of legal theory, sovereignty would not seem to be an alien concept after all among some non-Western polities. Among the Ashanti of Ghana and the Yoruba of Nigeria, for example,[76] the king or chief was considered the ultimate source of all laws, and the owner of all community lands. The imposition of Western-type sovereignty at the time of colonisation merely fractured their authority nationally. Locally, however, the institution of kingship or chiefship continues to serve as the hub around which revolve kin-based activities. It can be said that sovereignty therefore ‘dies hard’ at community levels of nation and state, progression towards modernity and globalisation notwithstanding.
Indigenous sovereignty may perhaps have inherent qualities approximating those of the imposed sovereignty, especially in the latter’s pull towards compliance of community norms. Geertz’s observation on the variegated forms of the world’s social systems is hauntingly revealing:
To see ourselves as others see us can be eye-opening. To see others as sharinga nature with ourselves is the merest decency. But it is from the far more difficult achievement of seeing ourselves among others, as a local example of the forms human life has locally taken, a case among cases, a world among worlds, that the largeness of mind, without which objectivity is self- congratulation and tolerance a sham, comes.[77]
[1] Section 53.
[2] Subject to limitations at international law: see J Shearer (ed), Starke’s International Law (11th ed, 1994) 90; D Harris, Cases and Materials on International Law (5th ed, 1998) 319–20; D Held, Democracy and The Global Order: From Modern State to Cosmopolitan Governance (1995).
[3] A Melanesian word encapsulating the granting of favours to one’s friends and kinsmen, ie nepotism.
[4] Institute of Pacific Studies, University of the South Pacific The Politics of Land (1987) 3–4.
[5] P G Sack, Land Between Two Laws (1973) 45–6. See also Geita Sebea v Territory of Papua (unreported, Central Court of Papua, 1940), 12; R Crocombe, Land Tenure in the Pacific (1971) ch 15.
[6] See J Mugambwa and H A Amankwah, Land Law and Policy in Papua New Guinea (2nd ed, 2002) 117–19.
[7] S K B Asante, ‘Interests in Land in the Customary Law of Ghana: A New Appraisal’ (1965) 74 Yale Law Journal 848, 852.
[8] [1992] HCA 23; (1992) 175 CLR 1, 70 (Brennan J).
[9] See, inter alia, M B Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (1975); S B Burman and B E Harrel-Bond, The Imposition of Law (1979); S Khare, ‘Indigenous Cultures and Lawyer’s Law in India’ (1974) 14 Comparative Studies in Society and History 71–96; A St J Hannigan, ‘The Imposition of Western Law Forms on Primitive Societies’ (1961–62) 4 Comparative Studies in History and Society 1–9; V Rose, ‘The Migration of the Common Law: India’ (1960 76 Law Quarterly Review 59–63; J N D Anderson, ‘Conflict of Law in Northern Nigeria’ (1959) 8 International and Comparative Law Quarterly 44–56; M Rheinstein, ‘Problems of Law in the New Nations of Africa’ in C Geertz (ed), Old Societies and New States (1963) 220–46; A Watson, Legal Transplants: An Approach to Comparative Law (1974); J H Beckstrom, ‘Transplantations of Legal Systems: An Early Report of the Reception of Western Laws in Ethiopia’ (1973) 21 American Journal of Comparative Law 557–83; M A Jaspan, ‘In Quest of New Law: The Perplexity of Legal Syncretism in Indonesia’
(1964-5) 7 Comparative Studies in Society and History 252–66; S Hatanaka, ‘Conflict of Laws in New Guinea Highlands and Society’ (1973) 8 Man 59–73; A
A Schiller ‘Conflict of Laws in Indonesia’ (1942–43) 2 Far Eastern Quarterly 31–47.
[10] Lord Hailey, An African Survey (Revised ed, 1956) 1.
[11] Milirrpum v Nabalco [1979] HCA 68; (1979) 24 ALR 118; Coe v Commonwealth (1971) 17 FLR 141; H Reynolds, Aboriginal Sovereignty: Three Nations, One Australia (1996) ch 4.
[12] H Amankwah, ‘Post Mabo: The Prospect of the Recognition of Customary Law in Australia’ [1994] UQLawJl 3; (1994) 18 University of Queensland Law Journal 15, 31–5. State laws however reserve the right to regulate indigenous practices where they are inconsistent with state law: see R v Sparrow [1990] 1 SCR 1075; Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351.
[13] R B Joyce, Sir William MacGregor (1971).
[14] Ibid.
[15] P Sack and D Clark (trans and eds), German New Guinea: The Annual Reports (1979) 11–12.
[16] Ibid 75.
[17] Joyce, above n 13, 148. The ‘white man’s burden’ is a composite of the rhetoric of rule of law capitalism and evangelism which seeks to impose a monolithic moral code; see below n 29.
[18] H Kuklick, The Imperial Bureaucrat: The Colonial Administrative Service in the Gold Coast 1920–1939 (1979) 46–7.
[19] Lord Lugard, Lord, The Dual Mandate in British Tropical Africa (1922) 1.
[20] See Y Ghai, ‘Constitutions and Political Order in East Africa’ (1972) 21 International and Comparative Law Quarterly 403.
[21] J D Legge, Australian Colonial Policy: A Survey of Native Administration and European Development in Papua (1956).
[22] J N Matson, ‘Judicial process in the Gold Coast’ (1953) 2 International and Comparative Law Quarterly 47.
[23] B Malinowski, Argonauts of the Western Pacific (1922); ‘Fishing in the Trobriand Islands’ (1918) 53 Man 87; Crime and Custom in a Savage Society (1926); Coral Gardens and their Magic (1935).
[24] In that regard Professor Werramantry notes: ‘Malinowski’s work in the Trobriand islands revolutionized modern jurisprudential thinking regarding the nature of law by showing that custom, which did not proceed from any identifiable sovereign, can have all the force of the law’: C G Werramantry, ‘Jurisprudence in The Third World Law School: A Blue-Print’ (1982) 10 Melanesian Law Journal 145.
[25] See for example M Gluckman, The Judicial Process among Barotse of Northern Rhodesia (1955).
[26] A somewhat different version of this argument may be found in Bourdieu: P Bourdieu, Outline of a Theory of Practice (1977) ch 1.
[27] Gordon provides an interesting comment, on the differences between the American-British social anthropological study of folk law and the European- Roman legal systems’ approach to the study of folk law, in his discussion of the study of ‘native’ law in South Africa under apartheid: R Gordon, ‘The White Man’s Burden: Ersatz Customary Law and Internal Pacification in South Africa’
(1989) 2 Journal of the Historical Society (South Africa) 41–65; see also H A Amankwah, ‘Post Mabo: The Prospect of the Recognition of Customary Law in Australia’, above n 12, and C Geertz, ‘The Integrative Revolution’ in Old Societies and New States: The Quest for Modernity in Asia and Africa (1963).
[28] For example, a native stole copper nails from a whaleboat because he believed that, if he removed them, his wife would be cured of an ailment caused by the part he had played in driving the nails into the whaleboat during its construction. In this example, the charge of stealing preferred against him was therefore dismissed. See the Gulf Division Annual Report for 1924/1925.
[29] J H Holmes, In Primitive New Guinea: An Account of a Quarter of a Century Spent amongst the Primitive Ipi and Namau Group of Tribes of the Gulf of Papua (1978).
[30] Ibid.
[31] This situation may be illustrated with a case involving the reconciliation of two warring tribes after the death of a medicine ‘purri purri’ man who was suspected of causing the death of the other tribe’s medicine man. See The Gulf Division Annual Report 1928/29.
[32] Division Annual Reports list the yearly number of persons charged with these offences. The number of acquittals was very small. The New Zealand Tohunga Suppression Act No 188 for example punished the practice of sorcery because the practitioner pretended to be a medical practitioner (doctor) when he/she was not!
[33] See H A Amankwah, ‘Ghanaian Law: Its Evolution and Interaction with English Law’ (1970) 1 Cornell International Law Journal 37, 40.
[34] See Amankwah, ‘Post Mabo: The Prospect of the Recognition of Customary Law in Australia’, above n 12, 34–6.
[35] L Lett, Knights Errant of Papua (1935); see also H Maine, Ancient Law (1906) where he compared and contrasted customary law with law as a progression from status to contract.
[36] C A W Monckton, Some Experiences of a New Guinea Resident Magistrate (Vol 2) (1927) passim.
[37] I H Hogbin and C Wedgewood, ‘Development and Welfare in the Western Pacific’, Australia in a New World No 1 (1943). 38 See M Meade, ‘Weaver of the Border’ in J Casagrande (ed), In the Company of Man (1960).
[39] A K Chignell, An Outpost in Papua (1911); see also H L Griffin, An Official In British New Guinea (1925).
[40] F E Williams, ‘Group sentiment and primitive justice’ (1941) 43 American Anthropologist 523–39. In other places in the Empire, however, dissatisfaction with justice meted out by the judiciary was amplified in the notorious incident of endless litigation in the courts and consequently the fretting away of ancestral patrimony by those entrusted with custody of such patrimony. See Lord Hailey, ‘An African Survey’, above n 10, 125 ff and P Fitzpatrick, Law and State in Papua New Guinea (1980) ch 2.
[41] F Fanon, Black Skin, White Masks (1952); The Wretched of the Earth (1961).
[42] J A Hobson, Imperialism: A Study (1902).
[43] H A Bulhan, Frantz Fanon and the Psychology of Oppression (1985).
[44] Some recent restatements of neo-Hegelianism have included Daniel Bell’s discovery of the ‘end of ideology’: The Cultural Contradictions of Capitalism (1976) and Marcuse’s announcement of the end of history: One Dimensional Man (1967). More directly inspired by Kojève’s influential reading of Hegel, and examples of contemporary neo-Hegelianism, are F Fukuyama, ‘The End of History’ in The National Interest (1989) and The End of History and The Last Man (1991); and T Darby, The Feast (1982; 1990). The works of Fukuyama and Darby forcefully restate the Kojève reading of Hegel (but are themselves devoid of the subtle irony which permeates the Kojève oeuvre). In Darby’s version, history is that grandest of all schemes, the ‘work’ for all time and ‘madness is everything which can find no role to play in the drama of history and which makes no contribution to the “end of history”’: The Feast, 112. In this scheme what is irrational is against history, history being the history of the progressive expansion of the rational.
[45] M Strathern, ‘Official and Unofficial Courts: Legal Assumptions and Expectations in a Highlands Community’ New Guinea Research Bulletin No 47, Port Moresby New Guinea Research Unit, Australian National University (1972);
B Narokobi, ‘History and Movement in Law Reform in Papua New Guinea’ in D
Weisbrot, A Paliwala and A Sawyerr (eds), Law and Social Change in Papua New Guinea (1982) 13–24; D R C Chalmers, ‘A History of the Role of Traditional Dispute Settlement in the Courts of Papua New Guinea’ in D Weisbrot, A Paliwala and A Sawyer (eds), Law and Social Change in Papua New Guinea (1982) 169–90; D Weisbrot, A Paliwala and A Sawyer (eds), Law and Social Change in Papua New Guinea (1982); R Scaglion, ‘Samukund’s Abelam Conflict Management: Implications for Legal Planning in Papua New Guinea’, Oceania (1981); R Scaglion, ‘Kiaps as Kings: Abelam Legal Change in Historical Perspective’, in D Gewertz and E Scieffelin (eds), History and Ethnohistory in Papua New Guinea, Oceania Monograph No 28, University of Sydney (1985), R Scaglion, ‘The Role of Custom in Law Reform’, in R de Vere et al (eds), Essays on the Constitution of Papua New Guinea (1985).
[46] D L Oliver, Aspects of Modernization in Bougainville, Papua New Guinea (1981).
[47] Alex Maun & Ors v Broken Hill Pty Co Case No 6862 1994 Supreme Court, Victoria. The matter was subsequently settled out of court and did not proceed to trial. 48 The relationship between social conflict, legal pluralism and contested sovereignties is discussed in J Rivers, ‘Formulating Basic Policy for Community Relations Programmes in the Mining Industry’, Proceedings of the GEM Conference, AUSMIM, Madang, October 1997. Discussion of compensation issues as social conflicts can be found in S Toft (ed), Compensation for Resource Development in Papua New Guinea (1997); J Burton, ‘The Principles of Compensation in the Mining Industry’, in S Toft (ed), Compensation for Resource Development in Papua New Guinea (1997) 116–36; C Filer, ‘Compensation, Rent and Power in Papua New Guinea’, in S Toft (ed), Compensation for Resource Development in Papua New Guinea (1997) 156–90. 49 Ch 370. This Act is presently undergoing what is likely to be a substantial revision, including some measures to deal with the emplacement of regulatory mechanisms and the appointment of appropriately empowered officials. Some of these measures have already been informally put in place. For example the AusAID-funded Bridge Replacement and Upgrading Program requires an environmental impact assessment for major works to be approved by an officer of the Department of Public Works with ‘signing authority’. However the recent relegation of the Department of Conservation to an Office status and the very small number of trained personnel available to implement the provisions of the present or any future Acts means that little change can be expected in this important area of public policy and public action.
[50] This culminated in the UN Earth Summit, 1992. 51 Environmental Planning Act 1982, s 2.
[52] See however the Environmental Planning Regulation 1992, which is also not directed at community or local interests.
[53] Zorn argues that there has been at least a weak trend towards the use of genealogies by the courts to settle land claims. Zorn overlooks the fact that, even if this trend does exist, the use of genealogies to generate a decision-making rule (which is something the courts do) may have little or a negative impact on the resolution of disputes: J Zorn, ‘Graun Bilong Mipela: Local Land Courts and the Changing Customary Law of Papua New Guinea’ (1992) 15 Pacific Studies 2.
[54] See Constitution s 9 and Sch 2.1.
[55] R Orr, ‘Provincial Government and Customary Law’ (1991) 19 Melanesian Law Journal, Special Edition.
[56] Ibid; see also the observation made in H A Amankwah and J Mugambwa, Papua New Guinea Land Law (2000) 50:
The exact place customary law occupies in the hierarchy of laws remains uncertain. In Mahada Resena & Ors v Independent State of Papua New Guinea [1991] PNG LR 75 PNG Supreme Court (Kapi Dep CJ, Amet and Los JJ) there was division over the issue. Kapi Dep CJ espoused the doctrine of legal pluralism in the nation and conferred on the indigenous people the right to elect the system they wish to be amenable (at 180–2). Amet J proclaimed the supremacy of customary law (at 189). Los J adopted a passive posture by asserting that until such time the Supreme Court ordains the contrary, in situations where no relevant statutory law exists, parties (not just the indigenous people) have the right to opt for the application of the common law or customary law to their cases (at 195–6).
[57] See for example: E Boeninger, ‘Governance and Development: Issues and Constraints’ in World Bank, Proceedings of the World Bank Annual Conference on Development Economics — 1991 (1992); P Larmour, ‘Corruption and Governance in the South Pacific’, State, Society and Governance in Melanesia, Discussion Paper 97/5, Research School of Pacific and Asian Studies, Australian National University (1997); D-C Martin, ‘The Cultural Dimensions of Governance’ in World Bank, Proceedings of the World Bank Annual Conference on Development Economics — 1991 (1992).
[58] Cf D Austin, The Politics of Development (1967).
[59] See A Regan, ‘Provincial Government in PNG’ (1999) 19 Melanesian Law Journal Special Edition. 60 The three-gap formula is taken from B Barrett, ‘Idea Gaps, Object Gaps, and Trust Gaps in Economic Development’ (1997) 31 Journal of Developing Areas 553–68.
[61] See for example R S O’Reagan, ‘The Ownership of Minerals and Petroleum in Papua New Guinea: A Comment’ [1992] QUTLawJl 8; (1992) 8 Queensland University of Technology Law Journal 141; K Posman, ‘Rights of Customary Land Holders under the Mining Act & Petroleum Act’, Paper delivered at ‘Customary Law at the Crossroads: The Future of Customary Law in Papua New Guinea’ conference sponsored by Papua New Guinea Law Society and Law Faculty, University of Papua New Guinea, 28–30 October 1992.
[62] See for example P Donigi, The State and Property Rights in Papua New Guinea, mimeo, Warner Shand, Wilson, Donigi and Reiner, Port Moresby, 1988; cf P Donigi, ‘Property Rights, Landowner Participation and Conflict in the PNG Mining Industry’ in September 1988 issue (PNG Supplement) of Oil and Gas Australia.
[63] K Ongwamuhana and A Reagan, ‘Ownership of Minerals and Petroleum in Papua New Guinea: The Genesis and Nature of the Legal Controversy’ [1991] QUTLawJl 8; (1997) 7 Queensland University of Technology Law Journal 109.
[64] In Donigi v The State (1990) N 1008, case struck out for plaintiff’s lack of locus standi.
[65] Wapula Akipe and Others v Paterson Lowa and Others WS No 1067 of 1990 (unreported). In an interlocutory proceeding Sakala J’s reference to the Supreme Court was held to be premature. See SC Appeals Nos 19, 32, 36 and 60 of 1991. For a detailed discussion see C E P Haynes, ‘The Ownership of Minerals and Petroleum in PNG’ (1994) 1 Australasian Journal of Natural Resource Law and Policy 33–92.
[66] See F M Brookfield, Waitangi and Indigenous Rights, Revolution, Law and Legitimation (1999); A Sharp, Justice and the Maori (1990).
[67] (1979) 53 ALJR 503, 408. See also H Reynolds, Aboriginal Sovereignty, ch 4; J
Singer, ‘Sovereignty and Property’ (1991) 86 Northwestern University Law Review 1.
[68] Fanon’s diplomatic status as Algeria’s Ambassador to Ghana provided him with the opportunity to observe at close range the emerging elite of the new African states. He painted a sober picture of their parasitical and unproductive lifestyle. The ‘indigenous bourgeois politicians, lawyers, army officers, civil servants’, he said, were a world apart from the world of the peasantry and ordinary people whom they exploited. He said they were worse than the colonial predecessors they replaced. They would, in his opinion, eventually subvert the national economy. See Wretched of the Earth, above n 41.
[69] J Fijalkowski, ‘Carl Schmitt’, International Encyclopedia of the Social Sciences Vol 14 (1968) 58–9; See also: T Hobbes, Leviathan (1651); J Locke, Two Treatises on Civil Government (1690) in C L Wayper, Political Thought: The State, Its Nature and Purpose (1973) ch 2.
[70] G Fox and B Roth (eds), Democratic Governance in International Law (2000); see also Held, above n 2.
[71] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, 69.
[72] Netherlands v US (1928) Permanent Court of Arbitration. Sole Arbitrator Huber 2 RIAA 829) (‘Island of Palmas case’).
[73] See M Freeman, Lloyd’s Introduction to Jurisprudence, (6th ed 1994) 262–7.
[74] [1919] AC 211 at 233-234. In Nyali v Attorney General [1956] 1 QB 1 at 16- 17, Lord Denning critiqued the decision of the Privy Council in Re Southern Rhodesia.
[75] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 267 [76] The distinction between cephalous and acephalous societies must be borne in mind. The former represent societies with ‘centralized authority, administrative machinery and judicial institutions — in short, a government’. The latter lack such institutions: M Fortes and E E Evans-Pritchard, African Political Systems (1961) 5; also T Elias The Nature of African Law (1962).
[77] C Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983) ch 16.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/JCULawRw/2003/5.html