DC703

PAPUA NEW GUINEA
IN THE LOCAL LAND COURT AT KIKORI

LLC NO: 02/06

BETWEEN:

DICKSON AINARU
LANIGAE & OTHERS OF
WARERAPO CLAN

AND:

MIKA LOUBOI & OTHERS OF WAHARA CLAN

AND:

AERA PAROKAE & OTHERS OF KEWA CLAN

KIKORI: A. ARUA
2007: June 6

This dispute was referred to the Local Land Court for determination after several attempts at mediation had failed. It arose as a result of a logging operation over the east Sirebe area by Turama Forest Industries Limited, under a duly signed Forest Management Agreement (FMA). It is over disagreements over boundary and ownership of certain portions of land amongst three clans namely, Wahara and Kewa clans of Lalau village and Warelapo clan of Waira village. The Wahara clan calls the disputed land "Sareke Taru", the Kewa clan calls it "Puria" and the Warelapo clan calls it "Yakari Taru". 

During the hearing it became clear that there was no real dispute between Wahara and Kewa clans over the ownership and boundaries of their portions of land. It turned out to be a dispute between Wahara and Kewa clans on one side, against Warelapo clan on the other, due to Warelapo, according to them, claiming over their portions and encroaching upon their boundaries.

The disputing parties

The parties to the dispute are no strangers to each other. They are from the same area, speak the same language, have same customary practices and, are interrelated to each other. Thus, our task was made easier by the above reasons and the fact that other neighbouring clans were able to give evidence for or against each of the disputing parties.

The disputed land

The portions of land and the corresponding boundaries which gave rise to the dispute are part of east Sirebe Forest Management Agreement, parts of which have been logged by Turama Forests Industries Limited. The operation into the disputed portions has been suspended pending the settlement of this dispute.

Inspection of Land/Boundary

Inspection of the inland disputed boundaries was done by me and the two mediators who were members of the Land Court by vehicle and on foot. The inspection of the river (water) boundaries was done by me by motorized dinghy with members and leaders of all disputing parties present with the exception of Dickson Ainaru, who was well represented by his elder brother, Paimiri Lanikae Ainaru and other members of the Warelapo clan.

The other members of the Land Court were unable to attend to the inspection of the river boundaries as they were located too far away to be brought for the inspection due to logistics and timing difficulties. The members of the panel agreed and relied on s.36 (2) of the Land Disputes Settlement Act, as the basis for the inspection done only by the Land Court Magistrate.

As to inspection of land after decision, we decided that it was not necessary to do so. Logistics and time, coupled with the risks involved did not warrant a visit to the disputed land after the decision.

Landmarks

Competing names of landmarks were presented by the parties, evidenced with the names of surviving individuals in respective clans named after those landmarks. We placed equal importance on each of those names as far as they relate to each clan.

Genealogies

All the parties stated fully, in writing and then presenting them orally their respective genealogies and ancestral history. They placed much emphasis on this aspect of evidence as the basis for each of their claims. 

Again, all their ancestral and genealogical evidence were considered equally and given equal value. Not one clan’s evidence regarding this aspect of evidence was given less attention or value. In the end, we say that they are all good and have equal value and status, so far as they relate to the individual clans. 

Relevance of custom

In the proceedings before us, we have considered the relevant customary practices of the disputing parties as they relate to and affect land ownership in their area. We noted that there were no major disagreements or opposing views on key issues of custom. This was due to the fact that all the parties are from the same area and they practice the same customary practices.

Principles of land ownership

Having considered the above issues, the evidence provided by the parties, and the importance they placed on their ancestral history and genealogies, we were also mindful that land disputes these days cannot be decided solely on the basis of ancestral history and genealogical evidence. Land tribunals also consider other factors that affect the status of customary land.

Some of these were discussed by Professor R.D. Cooter, in his report titled "Issues in Customary Land Law" which was reported in Institute of National Affairs (INA) Discussion Paper No. 39. They were restated by Amet J in Re Hides Gas Project Land Case [1993] PNGLR 309. 

While the principles are not conclusive, and therefore do not in my view form a final list of principles that must be relied upon by land tribunals when deciding land cases, some of them provide some relevance in assisting land courts in arriving at decisions in land cases. Some of those that are of relevance in this dispute are:

"1. Adverse possession

A group that resides upon or improves land for a sufficient time without the permission or active opposition from others thereby owns it. A group that uses land for a sufficiently long period of time without the permission or active opposition from others, but does not reside upon or improve it, thereby acquires a use right in it.

2.	Earmarks of ownership

Land can only be said to "belong" to a group when it is shown that either neighbouring groups acknowledge their claim by not challenging it or, by their ability to occupy and use the land, and stop others from doing likewise, they show that they exercise controlling interest over it.

3.	Maintenance of interest in land (or possessory acts)

An interest in land is maintained by building houses and settling on it and by gardening, grazing or burning it off, collecting from it, or forbidding others to occupy and use it.

4.	Ownership presupposes control

Ownership implies the power, whether exercised or latent, to occupy and use land, and to stop others from doing so."

Applying these principles to this dispute and by weighing them against the evidence provided by the parties, we noted the following:

1. Ihe creek boundary at west Sirebi

Wahara clan claim of boundary with neighbouring Kapopaina clan of Lalau village at Ihe creek was confirmed by Kapopaina clan. Warelapo clan claim of boundary at the same location with Kapopaina was denied by Kapopaina. Kapopaina maintained it only shared inland boundary with Warelapo. 

2. Ihe creek boundary to Aturu creek

Wahara clan confirmed with Kewa clan that from Ihe creek to Aturu creek is Wahara land. Aturu creek is the boundary with Kewa clan, then up inland to "Poimamate" (sink hole), where it shares inland boundary with Kewa clan again.

3. Aturu creek to Keakoma creek

Kewa clan land commences at Aturu creek and then up to Keakoma creek, where it shares boundary with Haria clan. From Keakoma creek it runs inland to "Komarumate" (sago swamp), where Kewa shares boundary with Warelapo. Neighbouring Haria clan agreed with spokesman Aiyouki Apuro confirming it.

4. Warelapo boundary claim

 Warelapo claim that its boundary commences at Ihe creek then all the way up to Sire, then to Hoe creek where it shares boundary with Haria clan was disputed and denied by Haria clan. Warelapo also contradicted its statement made during mediation that it shared boundary with Horei Rupahi at Hoe creek.

5. Non signing of FMA by Warelapo

Warelapo claim that it was not a signatory to the FMA was contradicted by one of its clan leaders Brian Kemori. Mr. Kemori stated that he signed the FMA as a leader of Warelapo clan and further confirmed that they shared inland boundary with Kewa clan.

6. Objection against the use of the name "Yakari Taru"

A neighbouring clan, Mirihuru, raised objection against Warelapo clan for using the name "Yakari Taru" which, they claimed is the Mirihuru clan cultural site, "sink hole".

7. Objection against the use of the name "Ito Rimani"

Aru Karapa, a spokesman of Kemiri Kewa clan of Irimuku village raised objections against Warelapo for using "Ito Rimani" history which belongs to Kemiri Kewa clan.

8. Objection against the use of the name "Ipate Emene"

Sumara Boru, a spokesman for Hapiri clan of Morere and a nephew of Dickson Ainaru of Warelapo clan objected to the use of the name "Ipate Emene" which, he claimed is the Hapiri clan ancestor. He also objected to the use of names such as "Hakuro", their old village, "Keiroko", bat cave and "Kepehene", a creek.

9. Objection to the mention of "Anu Kei"

Kepu clan objected to the mention of "Anu Kei" (sago patch) by Warelapo clan. They also objected to the mention of two old villages of "Apoyu" and "Pupuruka."

While the above mainly touch on the parties’ historical and ancestral evidence, I have restated them purposely to show how the neighbouring clans reacted to either of the disputing clans’ claims of boundary and ownership. Their restatement here do not in any way mean that I have accepted only one disputing clan’s ancestral history as being good against that of the other clans. They were all given equal value and are all good so far as they relate to the individual clans.

However, when applying the principles to the circumstances of this dispute and against all of the evidence before me, I find that the principles seem to weigh in favour of Wahara and Kewa clans on one side and the Warelapo clan on the other. The evidence of land usage, camp sites for hunting and gathering and, isolated gardening sites along the disputed portion showed the presence of Wahara and Kewa clans as the main users and inhabitants of the disputed land than the Warelapo clan. This was also confirmed by neighbouring clans who all seemed to support the Wahara and Kewa clans against the Warelapo clan.

In view of the above, the Local land Court makes the following finding of ownership regarding the disputed portion of land:

1. The Ihe creek boundary at the east bank of Sirebi river is between Kapopaina clan of Lalau and Wahara clan of Lalau.

2. From Ihe creek up northeasterly along the east bank of Sirebi river, then into Sire river, up to Aturu creek, is the boundary between Wahara clan of Lalau and Kewa clan of Lalau.

3. Wahara clan of Lalau is hereby declared to be the owner of all that portion of land starting at Ihe creek at the east bank of Sirebi river, all the way up to Aturu creek at Sire river and, up inland to "Poimamate," where it shares inland boundary again with Kewa clan of Lalau.

4. From Aturu creek up to Keakoma creek, up the Sire river is the boundary between Kewa clan and Haria clan.

5. Kewa clan of Lalau is hereby declared to be the owner of all that portion of land starting at Aturu creek and all the way up the southwesterly bank of Sire river to Keakoma creek, then up inland to "Komarumate" (sago swamp), where it shares boundary with Warelapo clan of Waira.

6. Consequent to the above findings and declarations of boundary and ownership, it is ordered that all of the restraining orders issued on 24th January, 2007, are hereby discharged.