Traditional land tenure and early European land acquisitions : the clash between primitive and Western law in New Guinea

Abstract

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 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 them. 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.