Legal Transplants: A conflict of statutory law and customary Law in Papua New Guinea

  • Glen Mola Pumuye

Abstract

The state of Papua New Guinea adopted the common law system of government in 1975 during independence. The genesis of most if not all its legislation can be traced back to the United Kingdom, Australia, New Zealand and other commonwealth countries. The tendency for legal transplants of legislative texts from these common law jurisdictions to sections of Papua New Guinean laws has been a constant reoccurrence. With huge texts of laws transplanted it begs the question whether these laws are coherent with existing laws and appropriate for Papua New Guinea. This paper analyses the existing Mining Act 1992 and Oil and Gas Act 1998 vesting ownership of minerals and petroleum in the State although these resources are located on customary land. I will use the said acts to establish the hypothesis that, in the rush to transplant legislation from Australia, this transplanted provision fails the functionality test and is not effective in Papua New Guinea. I will also try and point out the effects and solutions to redress this situation.

Keywords: Customary law, alienated land, legal transplants, functionality test

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