A Compensation Claims Procedure for Papua New Guinea: Report to the Institute of National Affairs, Port Moresby (review)

A Compensation Claims Procedure for Papua New Guinea: Report to the Institute of National Affairs, Port Moresby, by Deborah Dwyer, Terence Dwyer, Graham Ellis, Michael Ward, and Daniel Fitzpatrick. Canberra: Asia Pacific Press (Paragon Printers), 2000.ISBN0-7315-3655-X; xxxiv + 170 pages, summary, appendix, bibliography. US$25.00.

High compensation demands are a serious and growing problem in contemporary Papua New Guinea. Claims for a variety of losses include homicide, personal injury, land, mineral, timber rights, and maritime resources. Those responsible, which may be government agencies, multinational corporations, local businesses, or development organizations, often perceive the compensatory demands as exorbitant, while failures to compensate adequately and in a timely fashion anger the plaintiffs. These grievances disrupt public development efforts, private sector activities, and the provision of essential services.

In response to the need to do something, a project funded in part by AusAID (the Australian government aid agency) and undertaken by the National Centre for Development Studies, Australian National University, investigated the situation. The work proceeded in four phases: research, two weeks of fieldwork, a public seminar, and report writing. Fieldwork centered on interviews with statutory authorities, including Elcom and Telikom; provincial and national officials; nongovernmental organizations and representatives of landownergroups; others from mining, industrial, and agricultural sectors; and academics, judges, and lawyers. This volume summarizes the project's results and proposes a uniform, national system for dealing with compensation claims in Papua New Guinea.

One of its conclusions is that the existing substantive law on compensation is adequate. The problem it sees, rather, is the need for "a logical framework for the awarding of compensation which is equally fair to claimant and the organisation responsible" (xviii). The authors of this report never clearly define what they mean by "compensation," but believe that "land represents the greatest cause of compensation disputes" (49), and it is clear that land claims have occupied much of their attention and shaped their proposals. Accordingly, two major approaches were considered: creating a national tribunal, or utilizing the existing court system. After a public seminar highlighted the strengths and weaknesses of both approaches, a hybrid system, consisting of a panel of compensation experts sitting under the courts, was favored.

Studies in legal development typically fall into one of two camps. Lawyers, who most often concentrate on substantive law, tend to favor top-down approaches, whereas anthropologists, who more frequently focus on procedural law, prefer a grassroots perspective. This volume is solidly in the former group. The authors and consultants proffer three main proposals: (1) creation of a national database (on land claims and alienated land), (2) creation of a Compensation Panel under the auspices of the courts, and (3) creation of a Compensation Settlements Administration Board.

The compensation experts need not be lawyers, although the authors believe, "The qualifications and experience most commonly required in the assessment of compensation claims are those of the lawyer" (112). The panel president would be a serving or retired judge. A given compensation panel would consist of at least two full-time members and a third, who might be a part-time member, would be chosen for relevant experience or expertise. The Compensation Panel would use conciliation and mediation to facilitate consensual agreements, and could also order compensation payments either to current claimants or to future generations through trust funds. The panel would not be bound by the rules of evidence, and decisions could be appealed to the National Court. Furthermore, the panel could "bring justice to the people" by meeting not in Port Moresby, as a formal court might, but by traveling to wherever needed.

An important component of the proposed system is the Compensation Settlements Administration Board, which would "supervise payments of compensation to the correct beneficiaries, handle complaints about failures to implement orders or agreements, and supervise the administration of trust funds and provide co...