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Papua New Guinea Consolidated Legislation |
No. 5 of 1962.
Land Titles Commission Act 1962.
Certified on: / /20 .
INDEPENDENT
STATE OF PAPUA NEW GUINEA.
No. 5 of 1962.
Land Titles Commission Act 1962.
ARRANGEMENT OF SECTIONS.
1. Short title.
2. Commencement.
3. Parts.
4. Definitions.
5. Constitution of the Commission.
6. Appointment and tenure of Commissioners.
7. Oath of office, etc.
8. Protection and immunities.
9. Qualification required for Chief Commissioner and Deputy Chief Commissioner.
9A. Powers, etc., of Deputy Chief Commissioner.
10. Acting Commissioners.
[10A. Repealed]
10B. Commissioner, etc., holding other statutory office, etc.
10C. Assessors.
11. Seal.
12. Judicial notice.
13. Functions of the Chief Commissioner.
13A. Transfer of cases.
14. General jurisdiction, etc., of Commission.
14A. Three Commissioners may hear cases.
15. Determination of disputes.
15A. Local Land Court may make order.
15AA. Examination of decisions of Assistant Commissioner.
16. Conflict with registered titles.
17. Declaration of Adjudication Areas.
18. Form of notice.
19. Variation of Adjudication Area.
20. Appointment of Demarcation Committee.
21. Functions of Demarcation Committee.
22. Findings by Commission.
23. Amendment of Demarcation Plan.
24. Notice of Adjudication Record.
25. Adjudication Record to be forwarded to Registrar of Titles.
25A. Power to mediate.
26. Power to summon witnesses.
27. Examination to be on oath.
28. Power to order witnesses out of hearing.
28A. Transcript of evidence, etc.
28B. Reasons for judgment.
29. Technical rules of evidence not to apply.
29A. Duty to inspect the land.
30. Evidence of dedication of roads, etc.
30A. Power to award compensation.
31. Commission to make inquiries and hold hearing.
31A. Costs.
31B. Dispute as to customary land, etc.
31C. Taking of evidence for National Court.
32. Case stated to National Court.
33. Application of this Division.
34. Application for review.
35. Review on motion of Chief Commissioner.
36. Review of decisions.
37. Procedure.
38. Right of appeal.
38A. Powers of National Court on appeal.
38AA. Deposit on appeal.
38B. Agreements for settlement.
[39. Repealed]
40. Regulations to provide for certain matters.
41. Deprivation of interests under decisions, etc.
42. Ownership of customary land for certain purposes.
43. Infant natives.
44. Findings of Native Land Commission.
45. Refusal of witnesses to attend.
46. Protection of officers.
46A. Marking of land by Commission.
47. Legal representation.
48. Contempt of Commission.
49. Obstruction of Commission or Demarcation Committee.
49A. Moving, etc., of land marks.
50. Duty of Custodian for Trust Land.
51. Service on natives.
52. State to assist in relation to customary rights.
53. Copies of findings to be sent to District Offices.
53A. Fees.
54. Regulations.
INDEPENDENT STATE OF PAPUA NEW GUINEA.
AN ACT
entitled
Land Titles Commission Act 1962,
An Act to establish a Land Titles Commission and provide for its constitution and jurisdiction, and for other purposes.
Preamble
WHEREAS it is universally recognized that the expeditious and final determination of disputes as to rights in land and the registration of guaranteed rights to land are of basic importance to the well-being and development of all countries and especially of developing countries such as the Territory of Papua and New Guinea:
AND WHEREAS it is also universally recognized that these matters can best be dealt with by judicial authorities independent of control by the Government of the day, doing justice to all parties in accordance with the law:
AND WHEREAS it is proposed to make special provision in the laws of the Territory for the establishment of such an independent judicial tribunal to be known as the Land Titles Commission for the determination and protection of rights to land, and in particular to native land:
BE it therefore ordained by the Legislative Council for the Territory of Papua and New Guinea, in pursuance of the powers conferred by the Papua and New Guinea Act 1949-1960, as follows:–
PART I. – PRELIMINARY.
1. SHORT TITLE.
2. COMMENCEMENT.
3. PARTS.
4. DEFINITIONS.
“adjudication area” means an adjudication area declared under Section 17;
“Assistant Commissioner” means an Assistant Commissioner appointed under this Act;
“the Chief Commissioner” means the Chief Commissioner appointed under this Act;
“the Commission” means the Land Titles Commission established by this Act;
“the Commissioner” means the Chief Commissioner, a Deputy Chief Commissioner, a Senior Commissioner, a Commissioner or an Assistant Commissioner appointed under this Act;
“Demarcation Committee” means a Demarcation Committee appointed under Section 20 and, in relation to an adjudication area, means the Demarcation Committee appointed for that area;
“Deputy Chief Commissioner” means a Deputy Chief Commissioner appointed under this Act;
“land” includes an interest in land, whether arising out of and regulated by custom or otherwise;
“native” includes a customary kinship group, customary descent group and customary local group or community;
“the Registrar of Titles” means the Registrar of Titles appointed under the Land Registration Act 1981;
“the Senior Commissioner” means a Senior Commissioner appointed under this Act;
(2) For the purposes of this Act, a person who is partly descended from an aboriginal inhabitant of Papua New Guinea and who, by virtue of that descent, acquires rights by custom to or in respect of customary land shall be deemed to be a native in relation to those rights.
PART II. – ESTABLISHMENT OF THE COMMISSION.
5. CONSTITUTION OF THE COMMISSION.
(2) The Commission shall consist of–
(a) a Chief Commissioner; and
(b) such numbers of Deputy Chief Commissioners, Senior Commissioners, Commissioners and Assistant Commissioners, as are appointed under Section 6.
6. APPOINTMENT AND TENURE OF COMMISSIONERS.
(a)[1] shall be –
(i) in the case of the Chief Commissioner, appointed, suspended or dismissed in the manner as is specified in the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004; and
(ii) in the case of all Deputy Chief Commissioners, Senior Commissioners and Commissioners, appointed by the Head of State, acting on advise; and
(b) shall, subject to Paragraphs (c) and (d), retire upon reaching the age of 60 years; and
(c) where the person appointed is or has been a contract officer–shall be appointed for such term (not exceeding seven years) as is specified in the instrument of appointment, and are eligible for re-appointment; and
(d) may be removed from office by the Governor-General on the grounds of proved misbehaviour or incapacity, but shall not otherwise be removed from office; and
(e) hold office on such terms and conditions as the Prime Minister determines.
(2) The Head of State, acting on advice may, by notice in the National Gazette, appoint a person to be an Assistant Commissioner, and where that person is other than an officer he shall hold office on such terms and conditions as are prescribed.
(3) Subject to Subsection (4), the remuneration of a Commissioner other than an Assistant Commissioner shall not be diminished during his term of office.
(4) Subsection (3) is not contravened by provision for an allowance to be paid only in circumstances specified by the Prime Minister, or for the variation, suspension or cessation of an allowance in circumstances so specified.
(5) Where a person who holds an office of Principal Magistrate or Magistrate is appointed a Commissioner, he may, notwithstanding that appointment, continue to hold the office of Principal Magistrate or Magistrate, as the case may be.
7. OATH OF OFFICE, ETC.
8. PROTECTION AND IMMUNITIES.
9. QUALIFICATION REQUIRED FOR CHIEF COMMISSIONER AND DEPUTY CHIEF COMMISSIONER.
(a) the Chief Commissioner; or
(b) a Deputy Chief Commissioner,
unless he has been fully admitted to practice as a lawyer of the National Court.
9A. POWERS, ETC., OF DEPUTY CHIEF COMMISSIONER.
10. ACTING COMMISSIONERS.
(a) while the Commissioner is absent on leave or is for any other reason unable for the time being to discharge the duties of his office; or
(b) during any vacancy in the office of a Commissioner.
(2) Subject to Subsection (3), a person shall not be appointed to act in the office of a Commissioner unless he is qualified under Section 9 to be appointed to that office.
(3) An acting Commissioner shall hold office on such terms and conditions as the Prime Minister approves.
(3A) An acting Commissioner shall, before proceeding to discharge the duties of his office, take before the Governor-General or a person thereunto authorized by the Governor-General an oath or affirmation in the form in Schedule 1 to this Act.
(4) An acting Commissioner has the jurisdiction, powers, protection and immunities of, and may exercise all the powers which are vested in, or may be exercised by, the Commissioner in whose place he is appointed to act.
(5) The appointment of a person to be an acting Commissioner during the absence, or inability to act, of a Commissioner shall not be determined by the death or resignation of that Commissioner, but shall, unless the Head of State, acting on advice otherwise directs, continue, subject to this section, until a Commissioner is appointed in place of the Commissioner who has died or resigned.
(6) An acting Commissioner who holds office by virtue of Subsection (1)(b), or of Subsection (5), shall not so hold office for a period longer than two years.
10A. [REPEALED.]
10B. COMMISSIONER, ETC., HOLDING OTHER STATUTORY OFFICE, ETC.
10C. ASSESSORS.
(2) The Commission may from time to time select such number of persons as it considers desirable from a panel appointed under Subsection (1) to sit with it as assessors in relation to any matter before it arising in the area for which the panel was appointed.
11. SEAL.
(2) The Commission shall also, for the purpose of authentication, have a stamp with which documents requiring authentication may be stamped.
12. JUDICIAL NOTICE.
(a) the official signature of a person who holds or has held the office of Chief Commissioner, Deputy Chief Commissioner, Senior Commissioner, Commissioner or Assistant Commissioner; and
(b) the fact that that person holds or has held that office; and
(c) the seal and stamp referred to in Section 11,
if the signature, seal or stamp purports to be attached or appended to an adjudication record or other document issued out of the Commission.
PART III. – JURISDICTION AND FUNCTIONS OF THE COMMISSION.
Division 1.
Division 1.-General.
13. FUNCTIONS OF THE CHIEF COMMISSIONER.
(2) The Chief Commissioner may, by instrument in writing under his hand, delegate to a Senior Commissioner all or any of his functions under Subsection (1), so that the delegated functions may be performed by the delegate with respect to the matters or class of matters, or to the whole of Papua New Guinea or part of Papua New Guinea, specified in the instrument of appointment.
(3) A delegation under Subsection (2) is revocable, in writing, at will, and no such delegation prevents the performance of a function by the Chief Commissioner.
13A. TRANSFER OF CASES.
(a) the value of the land in dispute;
(b) the complexity or importance of the issues involved;
(c) the convenience of the parties and the Commission; or
(d) any other sufficient cause,
justifies the transfer.
(2) The Commissioner or Commissioners to whom a matter is transferred under Subsection (1) shall proceed to hear and determine the matter as though it had been commenced before him or them.
(3) Where a matter is transferred from a Commissioner under Subsection (1), the evidence already taken before that Commissioner together with the results of any investigations or inquiries he may have made shall be deemed to be evidence before the Commissioner or Commissioners to whom the matter is referred.
14. GENERAL JURISDICTION, ETC., OF COMMISSION.
(2) Subject to this and to any other Act in force in Papua New Guinea, the powers, functions and jurisdiction of the Commission may be exercised by a single Commissioner.
(3) Subject to Section 14A, the jurisdiction of the Commission under the New Guinea Land Titles Restoration Act 1951 shall be exercised by the Chief Commissioner or a Deputy Chief Commissioner.
(4) [Repealed.]
14A. THREE COMMISSIONERS MAY HEAR CASES.
(a) the value of the land in dispute;
(b) the complexity or importance of the issues involved; or
(c) any other sufficient cause,
justifies such an appointment.
(2) A sitting of the Commission consisting of three Commissioners appointed under Subsection (1) shall be presided over–
(a) where the Chief Commissioner is one of the three Commissioners so appointed–by the Chief Commissioner; or
(b) in any other case–by a Deputy Chief Commissioner appointed by the Chief Commissioner for the purpose.
(3) If, in any matter in which the jurisdiction of the Commission is exercised by three Commissioners under Subsection (1), the opinion of the Commissioners are divided in such a way that there is no majority opinion, the opinion of the Commissioner presiding shall be deemed to be the opinion of the Commission.
15. DETERMINATION OF DISPUTES.
(2) After the period limited by Part V for review of or appeal against a decision of the Commission has expired, and any proceedings on review have been completed and any appeals have been decided–
(a) a determination of the Commission under this or any other Act is, subject to Section 16, for all purposes and as against all persons conclusive evidence of the ownership as at the date of the decision, of the land the subject of the decision and of rights, titles, estates and interests in the land as set out in the decision; and
(b) the Commission shall forward a copy of its decision to the Registrar of Titles, who shall make such entries in Registers kept by him and issue such documents as are necessary, or as are directed by the Commission, to give effect to the decision of the Commission.
15A. LOCAL LAND COURT MAY MAKE ORDER.
(2) A person who does not comply with an order issued under Subsection (1) shall be guilty of an offence.
Penalty: K100.00.
Default penalty: K2.00.
(3) The Local Land Court making an order under this section has jurisdiction over an offence referred to in Subsection (2).
(4) Subject to the provisions of this section, an appeal shall not lie from a Local Land Court in respect of an order made under this section.
(5) Where an order is made under Subsection (1), the Local Land Court shall forthwith transmit to the Commission the true copy of the record, the depositions and any other documentary evidence relating to the dispute and thereupon the Commission shall forthwith hear and determine the matter as if the party in whose favour the order was made had made application to have the dispute heard and determined by the Commission in accordance with Section 15.
(6) Upon a determination in accordance with Subsection (5) being made, any order extant in respect of the subject matter of that determination shall absolutely cease and determine.
15AA. EXAMINATION OF DECISIONS OF ASSISTANT COMMISSIONER.
(a) confirm the determination;
(b) quash the determination; or
(c) order a re-hearing or a further hearing,
and the decision on such an examination shall be deemed to be a decision of the Commission constituted by the Chief Commissioner, Deputy Chief Commissioner, Senior Commissioner, or Commissioner, as the case may be, given at first instance, but until that decision is made the determination shall not be deemed to be a decision of the Commission.
16. CONFLICT WITH REGISTERED TITLES.
Division 2.
Adjudication Areas.
17. DECLARATION OF ADJUDICATION AREAS.
(2) A notice under Subsection (1) shall be published in such manner as the Chief Commissioner considers will ensure reasonable notice to persons affected or likely to be affected by the declaration.
18. FORM OF NOTICE.
(a) specify as clearly as possible the situation and limits of the adjudication area and, where appropriate, the name or names by which the land is known; and
(b) declare that all customary land within the adjudication area will be ascertained and registered, in accordance with this Act; and
(c) declare that no claim is required under this Act to or in respect of a right or interest in customary land within the adjudication area which is the subject of a claim before the Commission under this or any other Act; and
(d) specify a period within which, subject to Paragraph (c) and to Section 19, a person claiming any estate, right, title or interest in customary land within the adjudication area is required to present his claim thereto to the Commission.
19. VARIATION OF ADJUDICATION AREA.
(2) A notice under Subsection (1) shall–
(a) specify as clearly as possible the situation and limits of the land added to or excluded from the adjudication area and, where appropriate, the name or names by which that land is known; and
(b) in the case of a notice adding land to an adjudication area, specify a period within which, subject to Section 18(c), a person claiming any estate, right, title or interest in the land so added to the adjudication area is required to present his claim thereto to the Commission.
20. APPOINTMENT OF DEMARCATION COMMITTEE.
(2) A Demarcation Committee shall consist of a Chairman and not less than two other members, and a majority of the members shall be natives.
(3) The Chief Commissioner may, with the approval of the Head of State, acting on advice, determine the fees, allowances and expenses to be paid to the Chairman and the other members of Demarcation Committees, or to any of them, either generally or in a particular case.
21. FUNCTIONS OF DEMARCATION COMMITTEE.
(a) the boundaries of all land which has been the subject of a finding under this Act or the Native Land Registration Act 1952;
(b) the boundaries of all customary land the subject of a claim before the Commission under this or any other Act which has not been the subject of a finding by the Commission; and
(c) the situation of all public roads, public rights of way or water and areas reserved for public purposes in or over customary land within the adjudication area.
(2) The Demarcation Committee shall see that such marks are placed on the land as are needed to enable the demarcation plan and any adjudication record to be prepared and to enable the boundaries shown or to be shown on the plan or record to be located on the ground.
(3) If the circumstances require it, any of the duties of the Demarcation Committee may be carried out by the Commission.
22. FINDINGS BY COMMISSION.
(a) determine all claims to customary land before the Commission, under this or any other Act; and
(b) declare what are the public roads, public rights of way or water and areas reserved for public purposes in or over customary land within the adjudication area.
(2) The Commission shall set out its findings in the form of an adjudication record showing what land in the adjudication area is customary land and the ownership of each piece of that land.
(3) The Commission may set out its findings for an adjudication area progressively by preparing separate adjudication records for parts of the adjudication area.
23. AMENDMENT OF DEMARCATION PLAN.
24. NOTICE OF ADJUDICATION RECORD.
25. ADJUDICATION RECORD TO BE FORWARDED TO REGISTRAR OF TITLES.
PART IV. – PROCEDURE AND EVIDENCE.
25A. POWER TO MEDIATE.
(2) The Commission may adjourn the hearing if it appears that by doing so a settlement may be arrived at by the parties.
26. POWER TO SUMMON WITNESSES.
(2) A summons issued under Subsection (1) shall be served, and proof of service given, in such manner and subject to such conditions as are prescribed by the Land Titles Commission Rules 1968 or as otherwise prescribed.
(3) A summons under this section may be oral or in writing and in the case of an oral summons may be served by being communicated to the person concerned by the Commission or by a person thereunto authorized by the Commission.
27. EXAMINATION TO BE ON OATH.
(2) The Commission may administer or cause to be administered to a person appearing to give evidence before it an oath or affirmation as a witness.
28. POWER TO ORDER WITNESSES OUT OF HEARING.
28A. TRANSCRIPT OF EVIDENCE, ETC.
(2) The Commission shall keep a record of any inquiries or investigations made by it under Section 15(1), or under Section 36(4).
28B. REASONS FOR JUDGMENT.
29. TECHNICAL RULES OF EVIDENCE NOT TO APPLY.
(2) The Commission may accept evidence by statutory declaration in the case of a person whose attendance before it the Commission considers unnecessary, or whose attendance the Commission considers would occasion undue hardship.
29A. DUTY TO INSPECT THE LAND.
(2) The duty imposed by Subsection (1) may be discharged by assessors selected under Section 10C(2) inspecting the land and reporting to the Commission on the inspection.
30. EVIDENCE OF DEDICATION OF ROADS, ETC.
30A. POWER TO AWARD COMPENSATION.
(a) the recognition of that ownership might cause undue hardship to the person in occupation of the land; or
(b) it would otherwise be just to order the making of compensation to the person in occupation of the land,
the Commission may order that compensation be made to that person by the person whom the Commission has determined holds the ownership rights.
(2) Compensation under Subsection (1) shall be such as in the opinion of the Commission is fair and reasonable, having regard to all the circumstances of the case.
(3) In Subsection (2) “the circumstances of the case” include–
(a) the difference between the value of the improvements to the land in question which existed at the date of the determination of the ownership rights in that land and the value of the improvements to that land (if any) at the time when the person in occupation of the land at the date of the determination commenced that occupation; and
(b) the degree to which the owner had already been effectively deprived of his right of user at the time when that deprivation occurred or should be taken to have occurred.
(4) An order for compensation under this section may be enforced–
(a) where the amount or value of the compensation, as assessed by the Commission, does not exceed K2,000–as if it were an order of a District Court; and
(b) where the amount or value of the compensation, as assessed by the Commission, exceeds K2,000–as if it were an order of the National Court.
31. COMMISSION TO MAKE INQUIRIES AND HOLD HEARING.
31A. COSTS.
(2) Costs directed by the Commission to be paid to a party may be recovered by that party as a debt.
PART IVA. – REMOVAL OF CERTAIN MATTERS TO NATIONAL COURT.
31B. DISPUTE AS TO CUSTOMARY LAND, ETC.
(2) Where a matter is removed into the National Court under Subsection (1)–
(a) the proceedings in the matter and the records specified in Section 28A (if any) shall be transmitted to the Registrar of the National Court;
(b) the Court shall proceed in the matter as if it had commenced in that Court; and
(c) the Court may direct that all evidence already taken before the Commission shall be evidence before the Court.
31C. TAKING OF EVIDENCE FOR NATIONAL COURT.
(2) On the taking of evidence under Subsection (1)–
(a) the practice and procedure of the Commission applies; and
(b) the Commissioner has and may exercise, for the purpose of taking evidence, all the powers, protection and immunities of the Commission as if he were hearing a matter under Section 15.
(3) Evidence taken under Subsection (1) is evidence in the proceedings in the National Court under Section 31B.
PART V. – APPEALS, ETC.
Division 1.
References to National Court.
32. CASE STATED TO NATIONAL COURT.
(2) Subject to the National Court Rules 1983 the proceedings in or in connection with a case stated under this section shall be as directed by the National Court.
(3) The Commission shall incorporate in its decision such declarations and directions as are necessary to give effect to the determination made by the National Court under this section.
Division 2.
Reviews by Commission.
33. APPLICATION OF THIS DIVISION.
34. APPLICATION FOR REVIEW.
(2) An application for a review shall specify the grounds on which the application is made.
35. REVIEW ON MOTION OF CHIEF COMMISSIONER.
36. REVIEW OF DECISIONS.
(2) The Commissioner who made the decision to be reviewed shall not sit on the review.
(3) The Commission in dealing with the review shall consider the records relevant to the decision and receive such evidence (if any) and make such inquiries (if any) as it considers necessary, and may–
(a) affirm or quash the decision; or
(b) if the justice of the case so requires, substitute for the decision any decision that might have been given.
(4) Where the Commission consisting of three Commissioners appointed under Subsection (1) is reviewing a decision–
(a) the sitting of the Commission shall be presided over–
(i) where the Chief Commissioner is one of the three Commissioners–by the Chief Commissioner; or
(ii) in any other case–by a Deputy Chief Commissioner appointed by the Chief Commissioner for the purpose;
(b) the Commission may act on evidence and inquiries taken or made, as the case may be, by one of those Commissioners, if that Commissioner is so authorized by the other two Commissioners; and
(c) the opinion of the Commission shall be–
(i) where there is a majority opinion–that opinion; or
(ii) in any other case–the opinion of the Commissioner presiding.
37. PROCEDURE.
Division 3.
Appeals to National Court.
38. RIGHT OF APPEAL.
(1A) For the purposes of Subsection (1), in relation to a final order under the New Guinea Land Titles Restoration Act 1951 the period for appeal runs from the date on which the written final order is issued by the Commission.
(1AA) Notwithstanding anything in Subsection (1) or (1A), a Judge may, where he thinks it desirable in the interests of justice to do so, extend the time for appeal, but no such extension shall be granted after the Registrar of Titles has, in pursuance of the decision of the Commission, made any entry in a Register kept by him or issued any documents of title.
(1AB) The power to extend the time for appeal given under Subsection (1AA) applies whether or not, in any particular case, the time for appeal had expired at the date of commencement of the Land Titles Commission (Appeals) Act 1970 or has expired at the time when application is made to a Judge to extend the time for appeal under that subsection.
(2) An appeal under Subsection (1) may be made only on the ground that–
(a) the Commission has exceeded its jurisdiction;
(aa) the decision was against the weight of the evidence;
(b) the hearings of the Commission were conducted in a manner contrary to natural justice; or
(c) the Commission was wrong in law.
(2A) In Subsection (2)(aa), “evidence” means all information, facts, matters and things (including hearsay evidence, expressions of opinion and the results of any inquiries or investigations made by the Commission under Section 15(1), or Section 36(4), in relation to the decision appealed against) that were properly before or present to the mind of the Commission and which the Commission ought properly to have taken into account in arriving at the decision appealed against, together with all inferences proper to be drawn therefrom.
(3) In this or any other Act in force in Papua New Guinea, a reference to a decision of the Commission shall be read as a reference to a decision of the Commission as affected by the decision on an appeal under this section.
38A. POWERS OF NATIONAL COURT ON APPEAL.
(a) the record of the evidence taken by the Commission;
(b) copies of all documents before the Commission;
(c) the record of any inquiries or investigations made by the Commission under Section 15(1), or Section 36(4), in relation to the matter of the decision; and
(d) the reasons for the decision,
certified as correct by the Commission.
(2) Upon the hearing of the appeal, the National Court shall inquire into the matter and may–
(a) adjourn the hearing from time to time;
(aa) receive fresh evidence if in the opinion of the Court that evidence is relevant and the party seeking to rely on it was not negligent in failing to adduce it before the Commission;
(b) [Repealed.]
(c) if the justice of the case so requires, substitute for the decision any decision that might have been given by the Commission; or
(d) remit the case in whole or in part for hearing or for further hearing before the Commission.
(3) Where the records which may be required to be furnished under Subsection (1) in relation to an appeal are in the opinion of the National Court not adequate to allow the Court to come to a proper decision on the appeal, the Court shall–
(a) require the Commission to furnish to it any further information, matter or thing relating to the decision; or
(b) remit the case in whole or in part for hearing or further hearing under Subsection (2)(d).
38AA. DEPOSIT ON APPEAL.
(2) The National Court–
(a) shall, if the appellant gains an order in his favour; and
(b) may, in any other case,
order the return of the deposit in whole or in part to the appellant.
PART VA. – SETTLEMENT OF DISPUTES, ETC.
38B. AGREEMENTS FOR SETTLEMENT.
(2) The agreement for settlement may include a waiver of any rights or alleged rights by any party, including–
(a) the Custodian for Trust Land in any capacity, in defeasance of the rights of any person holding under or through him; and
(b) the owners or alleged owners of any customary land not only on behalf of themselves but also on behalf of all other persons who would otherwise have subsequently become entitled to the land by custom, and in defeasance of the customary rights of those persons.
(3) An agreement for settlement shall be made or incorporated into the decision of the Commission on the matter in question or the decision of the National Court on appeal, as the case may be, unless the Commission or the Court is satisfied that it would be improper so to do.
(3A) Where an agreement for settlement provides for payment of compensation, that provision may be enforced–
(a) where the amount or value of the compensation, as agreed, does not exceed K2000–as if it were an order of a District Court; and
(b) where the amount or value of the compensation, as agreed, exceeds K2000–as if it were an order of the National Court.
(4) For the purposes of any appeal to or from the National Court, a refusal to make or incorporate an agreement for settlement into a decision of the Commission or the National Court shall be deemed to be a decision or order of the Commission or the Court, as the case may be.
39. [REPEALED.]
PART VI. – REGULATIONS AS TO PRACTICE, PROCEDURE, ETC.
40. REGULATIONS TO PROVIDE FOR CERTAIN MATTERS.
(2) Where a matter of practice or procedure is not provided for in the Regulations, the Commission may deal with the matter in its discretion as the justice and convenience of the case requires.
PART VII. – COMPENSATION FOR DEPRIVATION OF INTERESTS.
41. DEPRIVATION OF INTERESTS UNDER DECISIONS, ETC.
(2) A sum ordered to be paid under Subsection (1) shall be paid by the State out of moneys appropriated for the purpose or, if the National Court so orders, out of the Assurance Fund established by the Land Registration Act 1981.
(3) . . .
PART VIII. – MISCELLANEOUS.
42. OWNERSHIP OF CUSTOMARY LAND FOR CERTAIN PURPOSES.
(a) no account shall be taken of, or reference made to, persons other than persons living at the relevant date;
(b) living persons who, under custom, are regarded as owners of customary land shall be treated as the beneficial owners of that land by custom; and
(c) without otherwise limiting the discretion of the Commission to inquire into and determine the existence of custom relating to land, where a native exercises a customary right to exclude others from land and that right is recognized and not disputed by other natives, that fact is prima facie evidence that the land is customary land owned by that first-named native.
(2) Nothing in Subsection (1) shall operate or be taken to operate so as to defeat any customary rights which exist or may come into existence in favour of any person.
43. INFANT NATIVES.
44. FINDINGS OF NATIVE LAND COMMISSION.
45. REFUSAL OF WITNESSES TO ATTEND.
(a) refuse or fail to attend in obedience to the summons; or
(b) refuse to take an oath or make an affirmation as a witness when so required by the Commission.
Penalty: K100.00.
46. PROTECTION OF OFFICERS.
(2) An action taken by a person in respect of the marking of boundaries and the preparation of plans for the purposes of the Commission shall be deemed not to contravene any law in force in Papua New Guinea relating to surveys, but nothing in this Act contained shall be deemed to authorize a person to obliterate, remove or deface a distinguishing mark or land mark or beacon erected or placed on land under any such law.
46A. MARKING OF LAND BY COMMISSION.
47. LEGAL REPRESENTATION.
48. CONTEMPT OF COMMISSION.
(a) during any hearing or proceedings held before the Commission–
(i) wilfully interrupt the hearing or proceedings;
(ii) conduct himself disrespectfully towards the Commission or a Commissioner; or
(iii) assault or wilfully obstruct a person in attendance at that hearing or those proceedings; or
(b) refuse or fail to comply with an order or direction lawfully made or given by the Commission.
Penalty: K100.00 or imprisonment for three months.
(2) Notwithstanding anything in Subsection (1), the Commission has the same power to punish contempts as is possessed by the National Court.
(3) The provisions of Subsection (2) do not apply to or in relation to an Assistant Commissioner exercising jurisdiction under Section 15(4).
49. OBSTRUCTION OF COMMISSION OR DEMARCATION COMMITTEE.
Penalty: K100.00 or imprisonment for 3 months.
49A. MOVING, ETC., OF LAND MARKS.
Penalty: K200.00 or imprisonment for 6 months.
50. DUTY OF CUSTODIAN FOR TRUST LAND.
51. SERVICE ON NATIVES.
(2) Where a notice or thing is given to or served on the Custodian for Trust Land under Subsection (1), he shall, unless he is satisfied that the notice or thing has in fact been given to or served on the natives whom it affects–
(a) take all practicable steps to give the notice or thing to, or serve it on those natives;
(b) post a copy of the notice or thing on a conspicuous place on the land to which it relates; and
(c) notify details of the notice or thing in the area in which the land is situated by any method by which it is customary to transmit orders or news within that area.
(3) Where the Custodian for Trust Land has taken action in accordance with Subsection (2) and is not satisfied that the natives whom the notice or thing affects either have been given or served with the notice or thing or have had reasonable opportunity of obtaining details of the notice or thing, he may apply to the Commission for an order as to the sufficiency or otherwise of service, and the Commission may make such order in the premises as to it seems just.
52. STATE TO ASSIST IN RELATION TO CUSTOMARY RIGHTS.
53. COPIES OF FINDINGS TO BE SENT TO DISTRICT OFFICES.
53A. FEES.
(2) The fees prescribed under this Act may vary from area to area in Papua New Guinea.
54. REGULATIONS.
(2) Without limiting in any way the operation of Subsection (1), the Regulations may provide for–
(a) the appointment of a Registrar, Deputy Registrar and other officers of the Commission; and
(b) the establishment of a Central Registry of the Commission and regional registries of the Commission.
PART IX. – . . . . . . . .
SCHEDULE 1
Sec. 7.
Oath.
“I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to Law, that I will well and truly serve Her in the office of the Chief Commissioner (or Deputy Chief Commissioner or Senior Commissioner or Commissioner, Assistant Commissioner or acting Commissioner, as the case may be) under the Land Titles Commission Act 1962 and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will. So help me God!”
Affirmation.
“I, A.B., do solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the office of Chief Commissioner or Deputy Chief Commissioner (or Senior Commissioner or Commissioner, Assistant Commissioner or acting Commissioner, as the case may be) under the Land Titles Commission Act 1962 and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will.”
Office of Legislative Counsel, PNG
[1] Section 6 Subsection (1) amended by No. 97 of 2006, Sched. 1.
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