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Human and land rights in urban PNG during the COVID19 pandemic

Humanitarian and land crises in urban PNG during the COVID19 pandemic

Land is a contentious issue in urban PNG and is characterised by multiple layers of claims of ownership. In urban areas of PNG, land was taken - alienated - from customary landowners by the colonial administrators. Over time, it has come to be managed through a Torrens system of land registration. Under PNG laws, this system gives the registered title holder an indefeasible right to the land. Although PNG’s laws recognise the rights of indigenous customary landowners, they have to navigate through the complex land laws in order to receive legal recognition of their ownership over land. As a result, customary landowners are increasingly marginalised from their own land.

As society continues to transform, and with greater mobility of the population, other forms of land transactions, such as the occupation of urban state land by citizens who choose to access and acquire land outside of the Torrens system, have emerged. This blog focusses on the perspective of communities formed on state land in the urban areas. Such communities, often referred to in discourse as 'informal settlements', are a feature of urban PNG. Historically, informal settlements have also emerged and evolved from historic self-help housing policies.

Within PNG’s capital city of Port Moresby, the past decade has seen the rise in forced evictions of communities. This trend began around 2012 with the eviction of the historic Paga Hill settlement. Since then, Port Moresby has seen a series of major construction works as part of preparations for it to host some signature international and regional events. On the one hand, the developments have improved the city and led to the city being touted as “Amazing Port Moresby” by its leaders. On the other hand, the evictions highlight the deepening divide between those who reside in informal settlement communities and those who are able to afford formal housing in the city.

The current eviction of the Portion 695 land, located at the ATS settlement in Port Moresby, (Figure 1) provides some important insights for understanding these processes. According to media estimates, ATS Settlement is home to around 10,000 city residents. For some twenty-five years, increasing numbers of people have called this settlement their home. Many sought refuge there when they have found themselves unable to afford housing in the city.

Based on the image in Figure 1, it is likely that several hundreds of families, or possibly between 1500 and over 2000 people have been directly impacted by the eviction of Portion 695. But the impact of this eviction extends to the estimated 10,000 people. Bulldozing of any community involves ripping apart strong and resilient, but fragile social, cultural, and political networks of people and families, community institutions. It rips apart networks of trade, economic livelihood activities, systems of care and support for children, elderly, and the disabled. It involves stripping apart fragile water systems, built over years, and carefully managed so that it provides for and holds together the entire community. This article provides some further information about these important community building efforts in the ATS settlement.

The right to express a Papua New Guinea way of life in the urban setting

The normalising of forceful evictions of settlement communities raises socio-legal questions in a country that prides itself on social relationships and the PNG way of life. The PNG Constitution acknowledges, inter alia, PNG customs, traditional wisdoms, self-reliance, creativity, and the Melanesian family as a base for social and political life. These Melanesian values are reinforced in Constitutional provisions for the development of underlying laws that are based on PNG customs. They are reinforced by the Constitutionally embedded principles of equality and human rights.

These Constitutional aspirations are important because much of PNG’s contemporary land practices of people living in urban settlements echo the spirit of the Constitution. Indeed, the community practices of residents of the ATS settlement, reflects the ways that increasing numbers of people living in the city acquire land. Such practices include accessing land through social networks or from customary landowners. People tell stories about how they have paid for land or engaged in various customary exchange ceremonies in order to maintain their rights to continue living on the land. Their practices resonate with the growing evidence that many Papua New Guineans are transacting land in ways through traditional social and customary relationships. This makes sense for many people given the high costs of legal and other fees related to land conveyancing in the formal land and housing market.

The eviction of Portion 695 in the ATS settlement stands out because it is only one of several portions of state-owned land in this broader settlement community. Each of these Portions of land is registered to separate title holders who are recognised legal entities under the law. Under PNG’s Torrens system of land management, the court focuses on claims to individual registered titles. Should the groups of people living on other portions of land in this area face eviction, they will each likely battle their own court process with a registered title holder who will serve its own interests.

One could argue that the choice to reside in informal settlements is a Papua New Guinean expression of his or her Constitutionally enshrined rights. These ongoing eviction cases make visible the cultural contest between Western notions of property rights that can be bought and sold, and PNG notions of collective living and self reliance. The Western notion of property rights, underpins economic development thinking, and relies on State laws to function. This cultural contest is reflected in the ongoing debates in PNG’s land policy discourse that hover between the need to make land available for development through clear property rights, and the need to protect customary landowners rights to their land.

In the case of the mass evictions of informal settlements in the urban context, the courts tend to lean towards the registered title holder’s ‘indefeasible’ property right. While the courts generally acknowledge human rights, they tend to afford limited 'equitable rights' to occupants of state land.. This often involves giving them a 'just' period to vacate the land.

Some people may argue that the title holders of state land have a right to take back their land from the people who are 'illegally' occupying it. Indeed, the increasing trend in evictions show how the laws privilege the rights of the title holders. However, this still does not address the moral and development issue about how people should be evicted in a dignified manner and that this should include some resettlement arrangements. Nor does it respond to customary landowners of urban areas ongoing struggles to take back their rights to the same land.

Human rights: The need for resettlement policies

Putting aside the debates between different understandings about land rights, a challenge that the thousands of people impacted by evictions face is that alternative land or housing is not readily available. It is too expensive for the ordinary Papua New Guinean to afford. It is difficult to resettle large communities. The large scale of such evictions make them comparable to other crisis situations that involve the destruction of homes and livelihoods. This is a Constitutional guaranteed human rights and humanitarian issue.

Sadly, all reports coming out of the ATS settlement suggest that it is too late for residents of Portion 695. Some of the people have moved to neighboring portions of land, others have scattered to other areas of the city. Currently, I understand that other Portions of land at the ATS settlement are facing eviction threats. The eviction of Portion 695 has heightened people’s concerns for their future.

Amidst these complex land contestations, evictions of large numbers of people in urban areas is likely to continue as land becomes more valuable and as the city population grows. Given this situation, it is important that policy makers establish clear polices to protect the rights of those impacted by evictions. Interventions should aim to ensure that future evictions are carried out in a manner that is more respectful of human rights and acknowledge the limited options available for people to seek alternative living arrangements. Some policy options include:

  1. Policy and lawmakers need to enact fair and transparent policies on resettlement. Such resettlement policies need to be made available to people impacted by evictions. These policies must be clear about the role and obligation of the state to resettle impacted communities.

  2. In cases where the courts rule in favor a title holder, thereby paving the way for an eviction to go ahead, it is not enough to simply provide a 'just' time period for people find an alternative place to live.

  3. In such cases, where the courts rule in favor of the title holder, the question needs to be asked if there is any way that an appeal to the courts can be made so as to delay the eviction until such as time as policy makers have met their obligations to resettle impacted communities.

  4. Pending the enactment of such policies, policy makers should consider the option of 'someone of legal standing' with legal interest to appeal to the courts to delay the evictions until resettlement has been arranged.

  5. Another possibility is to explore developing underlying laws, as provided for in the PNG Constitution, to give legal recognition to informal settlements as a form of contemporary Papua New Guineans' expression of their PNG way of life.

  6. Without strong laws and policies in place to protect impacted communities and enable such interventions, the courts are immensely powerful in shaping the outcomes of the many citizens are impacted by large scale evictions in urban areas.

  7. Any policies, of course, should always also strengthen the rights of the original customary landowners of urban areas.

Humanitarian public policy approach is needed during the COVID-19 pandemic

The case of Portion 695, and the ATS settlement more broadly, provides a window into understanding this complex policy space in urban PNG. For over ten years, the Portion 695 community has been a legal gatekeeper for the broader ATS settlement community. With their eviction there are fears that the flood gates are going to open a torrent of backhoes and bulldozers through the other portions. The eviction of Portion 695 has also been undertaken during the COVID19 pandemic when the Pandemic Act is under implementation.

Finally, this issue also raises the ongoing debates about the roles of the different arms of government in PNG. This is an important policy space that is impacting on large numbers of people and a systematic policy approach is needed. On the one hand, the judges who make rulings on these issues may argue that they only interpret the laws. On the other hand, as argued recently, PNG judges can, and have exercised a social policy role. Ultimately, however, real change can only come from the parliamentarians who are the policy and law makers. It is up to the members of parliament to consider whether PNG laws in the urban context need to be reviewed to protect the rights of communities who face eviction. The question is: Will PNG's legal and political elites have the appetite to pursue such contentious debates and undertake law reforms on behalf of a growing number of Papua New Guineans.

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