Kane Clan of Unantu Village v Kafe Clan [2000] PGLLC 1; DC204 (8 November 2000)

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IN THE MATTER OF THE DECISION OF MAGISTRATE FRANK MANUE OF LOCAL LAND COURT KAINANTU IN THE CASE NO. 1 1993 GIVEN ON 24/11/93

IN THE MATTER OF AN APPLICATION UNDER SECTION 44 OF THE LAND DISPUTE SETTLEMENT ACT 1975

KANE CLAN OF UNANTU VILLAGE, BAYANTINU CLAN OF FASUPYA VILLAGE and ASINU CLAN OF ASPUYA VILLAGE KAINANTU, E.H.P.
(Applicants)

Applicants:
MR KEFOTA TANGO for KANE CLAN
MR KARIS AYAPA for BAYANTINU CLAN
MR ISOE ARESAE for ASINU CLAN

MANUE F. This is an application for variation of a Local Land Court Order made on the 24th November 1993.

The relevant parts of the Local Land Court Order and Judgement would be reproduced but before that it may be of benefit to run down the background of this ongoing matter.

I will be making reference to the Land Court case of Arokompa/Maniape Land decided in 1993 regularly as to the best of my knowledge as being the chairman of the Land Court panel then.

Unfortunately the whole Land Court file had been destroyed by fire which gutted the court building holding valuable Land Court records in 1998, 27th May, to be precise.

The only document available and handy is the short judgement that was delivered and copies made available to the Land disputants.

Prior to the decision in 1993, there was an earlier Local Land Court hearing into the Arakompa/Maniape Land areas. That case was presided by the Local Land Court Kainantu presided over by one of the Assistant District Administrators (Kiap).

The decision was challenged in the Provincial Land Court that referred the Land matter for rehearing in the Local Land Court.

This was when I decided to appoint members, pursuant to my powers under the Land Dispute Settlement Act 1975, from Goroka District to sit with me in the panel. The members in the panel were all very experienced and wise mediators from Goroka mediation district, Ungai Mediation District and Benabena Mediation District.

In the initial Dispute there were only two parties involved. However when the matter was referred for re-hearing in the Local Land Court I opened up the door for other interested parties to register their claim or interest, which resulted in an unusual number of parties registering their interest. Among them were the parties in this application. These were the interested parties as reproduced.

Reproduced hereunder are the parties and the relevant parts of the 1993 Local Land Court Judgement.

DISPUTENTS	DISPUTE/INTEREST	COURT ORDER
1. BAYANTINU/ASINU (CLAN) -VS- KANE CLAN	LAND BOUNDARY	Parties agreed to their traditional boundaries in 1992 after the appeal cases of Provincial Land Court. Court will not declare their boundaries.
YOFU ARAKON (CLAN) -VS- UNANTU AND TUTA AND KAFE (CLAN)	LAND BOUNDARY OWNERSHIP	YOFU ARAKON is not owner of APAKOMPA but their ancestor was probably a by-passer on refuge status.
KANE OF UNANTU -VS- KANE OF TUTA	OWNERSHIP	KANE OF TUTA IS NOT OWNER N:B Kane of Tuta did not produce evidence, of any sort to support their clan.
BABAO BANGA VS- KAFE AND KANE CLANS	OWNERSHIP	Babao Banga did not dispute by producing evidence, although registered disputed. Babao BANGA is not owner. Decision of the Court:

The court did NOT declare any particular boundaries regarding the order awarding the land to the four-(4) clans, NOR did it set boundaries on AROUMPA, MANIAPE Land areas.

The Court however, concluded that the parties were not only disputing ownership of Arokompa, but other adjourning pieces of land including Maniape Land. That, conclusion was (reached) as the parties related their narrated versions of their stories covering ARAKOMPA/MANIAPE and all other adjacent and adjoining mass of land area.

The Court did NOT declare any boundaries for the fact also that upon our inspection of the Land by a Highlands Cold (Ltd) hired helicopter, the land area was for vast for us to walk around.

We were able to fly to Maniape and walked about Thirty (30) minutes through a well-cleared bush track to ARAKOMPA camp sight.

We however, had the impression that the parties were disputing ARAAKOMPA and all adjuring and adjacent land within these following landmark features.

From (the) tributary (estuary) of Ramu. (i.e. Rose River) up stream and over the hill to Bona Creek down to Bilimoia River and down to Ramu River. The orders issued should have some effect on the Land areas within the above Landmark features as indicated above.

There have been several applications for variation pursuant to section 44 of the Land Dispute Settlement Act 1975 and have been presided over by various brother magistrates.

This application relates to varying the Local Land Court Order made on 24th November 1993 part of which has been reproduced (above). They are specifically requesting the court to rule on a boundary of Arokampe land. The provisions for variation are set out on Sections 43 & 44 of the Land Dispute Settlement Act 1975 that are set out hereunder:

(1) Subject to section 44, an order of the Local Land Court made under this part is, as between the parties and all persons claiming through them. Conclusive evidence that the interest or interest in the land the subject of dispute that is or are specified in the order may be exercised by person or group of persons named in the order as being the person or group of persons vested with the interest or interests.

(2) An order under subsection (1) is not a bar to any claim of right by any person to exercise any interest other than interest, as set out in the order, over the land or part of the land the subject of the order.

(3) An order under subsection (1) has no effect, subject to section 59, from the date on which it is made.

(1) Notwithstanding section 43, a party may apply to a Local Land Court for a variation of an order of that Court if he can show that circumstances have changed so that the enforcement of the order is causing hardship.

(2) Where an application is made to a Local Land Court under subsection (1) the Court shall cause a copy of the application to be served on any other interested persons and section 71 applies as though the copy of the application were a notice within the meaning of that section.

(b) may be made only by a party who was originally a party to the dispute or by a party claiming through such a party.

(4) In considering whether to vary the order, the court shall take into account:-

(a) the past and present use and occupation of the Land the subject of the order; and

(b) the past and present use and occupation of the area surrounding the land; and

(c) the relative numbers of people holding interests in and using and occupying the land and the area surrounding the land; and

Section 59 of the Act relates to powers of appeal, which a Provincial Land Court may exercise.

The Question before me is whether this court is empowered to an order of a Local Land Court and if empowered under what circumstance dose this court exercises that power.

Pursuant to Section 44, as reproduced (supra) this court may exercise its power to vary/disputants or through them provided that there are persuasive circumstances for the applications. They include circumstances as outlined in section 44 sub-section (4).

I note that in the 1993 Local Court Dispute the Kane Clan of Unantu disputed with Asinu/Bayantinu Clans of Asapuiya village over the boundaries. That dispute was amicably sorted out and traditional common boundaries were accepted accordingly prior to the Local Land Court in 1993.

For reasons the applicant clans know best, they have joint forces to become applicants in this proceedings.

The essence of this application is based on a meeting, which was held at Unantu village, on the 24th October 1999. The meeting was attended by some 200 people from the 9 clans of the village on the midst was the highlands pacific Ltd (HPC) senior geologist as the company representative namely Mr. Casy Agiro and some Banyantinu/Asinu Clansmen of Aspuiya village Kainantu.

The applicants assert that the meeting was to have the landowners agree to have the company excess to explorations or work to continue in the Arakompa/Mainape Land. And that the Court as boundaries of Arakompa/Manipe accept the boundaries put forward or drawn and given physical landmark features which was the issue of dispute in 1993. They said that in the 1993 decision no specific boundary was declared or set so the Court should take this opportunity.

In accepting and declaring the boundaries, they rely on the fact that Mr. Payake Yaiuti, a principal leader of the Landowners, awarded in 1993 agreed to the marked out boundaries.

The respondents in contrast do agree that he meeting was held to allow access to company HPL into the land and especially into their sacred burial sights in accordance to customs.

They do not accept the boundaries issue, mainly because the issue has been decided in 1993. They say they are not the appropriate person or body to do that.

In their evidence, the applicants relied on what transpired in Unantu village Kainantu District on the 24th October 2000. In the village was a meeting, allegedly organized by Payake Yaiuti (Respondent).

In their submission however, they had diverted their attention to evidence, which may have been narrated in the original Land Dispute in 1993. They re-iterate that the land in issue was Kane Land until the 1993 decision.

I must say that the submission so far as the ownership issue, is not of any assistance at this stage. Such evidence may have been of some value and relevance in 1993, not at this stage of variation application.

The Respondent submitted that there have been no incursions by them into other clan land. They submitted that the boundary issue was not declared by the 1993, Land Court and that they are bound including the applicants by the 1993 Land Court decision.

The Respondent then gave some outline of the possible boundary. The propose boundary includes Manipe/Arakompa and all adjacent and or adjoining area.

The suggested boundary re-iterates the impression of the 1993 Local Land Court which I will discuss later on.

It is quite obvious that there is discontentment among these who have interests in the Arakompa/Maniape Land. This is evident by the several variation applications, which have been lodged including the present application.

It is also imminent that here is a misunderstanding in comprehending and appreciating the local land court order of 1993.

Furthermore, in my view lack of co-operation among themselves in appreciating the Local Land Court Order of 1993 has also attributed to the state of affairs and confusion among themselves.

This has in turn delayed whatever vital development may have kick started the economy of the area.

The applicants in their evidence relieved very much on what transpired on the 24th October 1999. There is no dispute that a meeting did eventuate on that date as respondent agreed that such a meeting did take place.

The applicants claim that Mr. Payabe Yaivti initiated and organised the meeting. The purpose according to the application was to allow explanation to continue on the land by H.P.L.

They allege also that at the meeting a boundary of Arokompa land was agreed upon by all the nine (9) clans of Unantu.

Because of that, the Court should accept the boundary as allegedly agreed upon at that meeting.

They further alleged that there is likely hood of trouble should the court disregards their application. The later ground was not supported by adducing evidence.

The respondent however say that the meeting was for the purpose of allowing company excess in the process of exploration to the secret burial sights of the class.

Variations can only be made provided the requirements under S.44 are meet. Section 44 has been reproduced earlier.

One such requirement is that the party applying for variations must show that circumstances have changed so that enforcement of the order is causing hardship.

The matters that give rise to the "circumstances of hardship" are outlined in subsection (4) of section 44. They include past and present use and occupation of the land, relative numbers of people holding interests and any other matters that are relevant.

My inspection knowledge of the land in 1993 is that it is mostly uncultivated mass of land area. All of it or the most part of it is vast wild vegetation. It was unoccupied until exploration work commenced in the area by R.G.C Pty Ltd then followed by Highlands Gold Pty Ltd.

People began to bear more interest on it with the conception of benefiting immensely by the possible large/medium mining activity. Sporadical cultivation and inhabitation had eventuated since.

The use of the land in terms of agricultural cultivation either commercial or otherwise is not an issue.

The gest of the issue in this matter is who is to benefit most from the mining activities, not the use of the land or occupancy of the land.

There has been no evidence in any nature in relation to the past and present use and occupation of the land.

The parties who were awarded interests by Local Land Court of 1993 are living a day or two walks away from the land area, the subject of this application. The number of people who gathered on the 24th October 2000 is an indication of the population of the Unantu village.

The 1993 Land Court parties who were awarded the Land interests are from Unantu village.

The applicants have not shown whether there is a population explosion to such a degree that the 1993 Decision is impracticable.

Furthermore Kane clan of Unanto which is one of the applicants was awarded some interest in the 1993 Land Court Decision together with AROKON, TAFO ANTU and Kafe clans.

The applicants claim that there was a consensus reached in relation to the boundary of Arakompa land on the 24th October 1999 meeting.

If it was so, the question that arises then is why are the other clans as ARAKON, and Tafo Autu NOT named as a party to this application or alternatively, whey did the other clans joint up as applicants.

And if there was such an agreement, why is Kafe clan being named as the sole respondent.

These are questions a reasonable person would ask and the manner in which the applicants came to Court without the other clans with interests being left out.

Kane clan’s action is questionable and that by that in my view is challenging the 1993 Land Court decision. Their action is cunningly devised to get around the 1993 land Court Decision, so that if the boundaries are accepted by the Court, they can do the same with any other portions of Land within the Land area which has been decided in 1993.

I remind the applicants that I do not sit as an appellate court but as a court exercising powers pursuant to section 44 alone.

The applicants in the issue of the application wanted the Court to declare a boundary as alleged agreed upon by the general meeting of 24th October
1999.

As reproduced earlier, the 1993 Land Court Decision did not expressly and specifically declare the boundaries of the 1993 Land Dispute over Arakompa/Maniape land.

The Land Court however did give an indication of the Land area affected by the 1993. Land Court Decision. I quote from the 1993 Judgement

"The Court however, concluded the parties were not only disputing ownership of Arokompa but other adjourning pieces of land including Maniape Land. That conclusion was as the parties related their narrated versions of their stories covering Arakompa and all adjoining mass of Land area.................

We...... had the impression that the parties were disputing Arakompa, and all adjoining and adjacent land within these following land mark features.

From the tributary (estuary) of Ramu River meeting Biilimoia River up Ramu River to the tributary of Ramu River (Dose River) up stream and over the hill (or ridge) to Bona Creek down to Bilimoia River and down to Ramu River. The Orders issued should have some effect on the land areas within the above land mark features as indicated above (Emphasis are mine)

These are the indication of the land area and the order is effective within the confines as indicated above.

The closest the court could say in relation to boundaries is as reproduced above and nothing more can be said.

The Kafe clan in their submission further elaborates the 1993, boundary impression or view of the court.

1.	KOKOTA	Junction of Prilimoia and Ramu Rivers
2.	RAMU RIVER	Up Ramu River
3.	NAU ANA UKIKA	Junction of Dosa Creek and Ramu River
4.	DOSA CREEK	Up Tributary of Ramu
5.	ANANAMPIMPA
6.	TANKO ANA CREEK	Up the River (Tributary of Dosa Creek)
7.	BOWAN DARARA
8.	DADEMPA
9.	BENA CREEK
10.	JUNCTIONS OF BENA CREEK AND BILIMONIA CREEK
11.	BILIMOIA CREEK	Follow River back to Kokota

I am of the view that they have given specific physical and natural features of the land, which the court lacks, knowledge of in 1993.

For the purpose of the 1993 decision and the named parties who were awarded interest, this specification of the boundary, I think should be a guide in future to effect the said order of 1993.

I think there is a misconception of the orders given in 1993, which gives rise for me to elaborate on them.

The orders should not be read in isolation of the judgement given in 1993 or each of the orders but conjunctively, collectively or together.

The first order is a general order; meaning Kafe with Payake as the leader is the overall clan owning the land area.

The second orders gives right of excess and interests of land which may be scattered sporadically within the land mass, on the condition that such rights and interests are exercised with the co-operation and consultation with Kafe clan lead by Payake Yaiuti.

The key component of this part of the order is co-operation and consultation in a Melanesian way.

The third covers personal properties destroyed and the right of it converted into monetary value. This would include such as houses marita trees and any personal property.

The order does not necessarily mean that Kafe clan would be the only clan that would benefit 100% from whatever is derived from the land. That would be absolutely devious and was not intended by spelling out four sections of the orders.

Common sense must prevail among those who were awarded the land interest in 1993.

Generally, these types of meetings should be held to iron out any differences among those who have interests on the land.

Subsection (3) of section 4 of Land Disputes Settlement Act 1975 states (2) an order under subsection (1) is not bar to any claim of right by any person to exercise any interest other than the interest, as set out in the order, over the land or part of the land the subject of the order.

May it be reminded that an order has been made in 1993, which has been reproduced over in this judgement. The order was made after a full hearing.

By law, the named parties, Kafe, Arokon, Tafo Antu and Kane of Unantu clans may make claims within the given implied boundaries, as specified in the order.

That is to say as explained earlier, it must be done conjunctively, consolatitively and co-operatively with Kafe clan lead by Payake Yaiuti.

And I think this was what all the interested parties tried to reach objectively in the 24th October 1999 meeting.

It is this courts earnest view that such meetings can become very meaningful if common sense and logic is allowed to rule and prevail.

Such meetings must be encouraged to effect the orders understandably. Such meetings are also within the spirit of the 1993 Decision/order.

Having discussed all that needs to be resolved, I find that there are no grounds for variation.

Papua New Guinea Local Land Court

Kane Clan of Unantu Village v Kafe Clan [2000] PGLLC 1; DC204 (8 November 2000)