Sack, Peter Georg
The following study deals with·the acquisition of land by
Europeans in the area which today forms the Trust Territory of
Nev Guinea. It covers the period from the beginning of European
settlement in the 18708 to the outbreak of the First World War,
when after about thirty years the administrative control over this
area passed from German into Australian hands.
In modern Western societies the acquisition of land is
essentially a legal matter. There are laws which determine under
which...[Show more] circumstances an acquisition of rights to land is legally
valid, and if there is a dispute about the validity of a particular
acquisition, there are courts of law which can make a final decision
which is then backed by the authority of the state. A study dealing
with the acquisition of land can thus concentrate on analyzing the
existing system of land law, taking the rule of law for granted. In
a colony the situation is different. Behind the facade of colonial
law, a study of legal problems revolves around the question whether
and to what extent this colony is ruled by law. An examination of
the 'establishing of law and order' must form an integral part of
each legal study ~ or it could be realized afterwards that it has
been an exercise in shadow-boxing, because the problems discussed
were legal only in theory but not in colonial practice. Moreover, the 'establishing of law and order' has proved to be
much more complex than the optimistic colonial officials, who invented
this phrase, ever imagined. In New Guinea it is, even today, by no
means completed, The present land acquisitions by Europeans are still
not regarded as an essentially legal matter, There are still two
separate systems of law for natives and Europeans which are, at least in practice, not held together by a set of conflict norms, but by a
aeries of political compromises which are far from being final.
Although the land acquisitions with which it deals were made
according to the colonial lav more than fifty years ago, the following
study does not deal with dead history. The problems the early European
land acquisitions have caused are very much a part of the present, and
their solution is still largely a question of the future. To appreciate
these problems, they must be seen as a part of the wider issues forming
their background. They must be seen as part of the problems arising ,
out of the clash between primitive lav and Western lav, a clash which
must be understood as a historical process reaching from pre-colonial
into post-colonial days. It is obvious that this field is far too wide to be covered
systematically. This is in itself not unusual for a specialized study.
However, the situation here is complicated by additional factors.
Firstly, the subject is situated .in a field where three academic
disciplines, lav, anthropology and history, overlap, and neither the
author nor probably any at bis readers is fully familiar with all of
Secondly, none of these disciplines has so far adequately covered
its section of this field: German Nev Guinea is still largely a blank
spot on the maps of historical research; and although there are some
interesting studies of primitive lav·in Nev Guinea, they are hardly
more than a beginning compared with what is left to be done. Thirdly, there is no satisfactory and generally accepted theoretical
framework which could be used: as soon as the clash between primitive
law and Western law is examined, there is no firm ground anywhere.
Fourthly, the official land records, which would have been the
most important source of information have disappeared as a result of the Second World Var, as has other valuable historical material both
in Nev Guinea and Germany.
The theoretical and practical importance of the subject, however,
justified an attempt to tackle it despite these difficulties - although
the time and space available made it impossible to approach it on as
broad a front as would have been desirable. Space in particular made
it impossible to include the historical background that is so very
important for traditional land tenure as well as for European settlement.
The reader must therefore be referred to the existing literature in this
field which is, unfortunately, far from satisfactory.
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