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Koilavi v Orovi [2007] PGLLC 5; DC704 (6 September 2007)

DC704

PAPUA NEW GUINEA
IN THE LOCAL LAND COURT AT KIKORI

LLC NO: 03/06

BETWEEN:

DAVID KOILAVI & OTHERS OF OUROKO CLAN

AND:

MATHEW OROVI & OTHERS OF OURAMORO CLAN

KIKORI: A. ARUA
2007: 6, 7, 8, & 9 August
6 September

DECISION

Land Disputes Settlement Act – Dispute over ownership of customary land. Evidence – Ancestral genealogy – Abandoned village site still visited to this day – Presence of camp houses currently used. Principles in determination of ownership of land – Land sold in accordance with custom cannot be reclaimed later except with consent of purchasing clan.

Cases cited:

Re Hides Gas Project Land Case [1993] PNGLR 310

By the Court. This dispute was referred to the Local Land Court for determination after several attempts at mediation had failed. It arose as a result of logging operation over Turama east FMA, especially the Veiru area just outside Kikori station by Turama Forest Industries Limited. The dispute is over ownership of a certain portion of land known as "Biribua" by Ouroko clan and "Veimei" by Ouramoro clan.

The disputing parties

The parties to the dispute are no strangers to each other. They are from the same area, however, are from different tribal groups. The Ouroko clan is from the Rumu tribe who is normally from the upper Kikori area while the Ouramoro clan is from the Kibiri tribe and is resident around lower Kikori area. While most of their customary practices may have many similarities, and some of them related to each other through marriage, they speak different languages. Despite the differences in language, our task was made easier by the fact that other neighbouring clans were able to give evidence for or against each of the disputing parties.

The disputed land

The portion of land and the corresponding boundaries which gave rise to the dispute is part of Turama East operation under the Turama Forest Management Agreement (FMA). Specifically, it is the area inside and around the Veiru creek just outside south westerly direction of Kikori station.

Inspection of Land/Boundary

Inspection of the disputed portion of land and the boundaries with other neighbouring clans was done by the mediators who were members of the Land Court on foot. The inspection of the river (water) boundaries and the old village of Waimake was done by all the members of the court by motorized dinghy with members and leaders of all disputing parties present in their separate dinghies.

While the inspection was well attended by all parties and went well without any major hiccup, it must be placed on record here that the members of the Ouramoro clan who started walking across from the main Veiru creek to the old village site of Waimake could not make it due to reasons known only to them. The members of the court, Ouroko clan and the Ouramoro dinghy minded by Kemaru Bisue, waited from 12.00 midday until 4.30pm at Waimake but they never turned up. At the time of the decision or even before that they have not informed the Court of what had happened.

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. No 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 with very minor differences.

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."

Apart from the above principles discussed by Professor Cooter, I wish to add one more additional factor which I think is important in deciding this dispute.

5. Land sold to another clan in accordance with custom cannot be reclaimed later.

Where land had been sold to another clan in accordance with custom in exchange for a certain customary obligation or consideration some generations ago, the current disputing generation of the selling clan cannot reclaim it back except with consent or permission from the current owning clan.

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

Ouroko claim.

Ouroko clan’s claim of ownership of the disputed portion of land was based on their ancestral ownership. They claimed that their ancestor "Kaka" roamed and lived at that area. While at the area Kaka established the Waimake village. It was submitted during the hearing that the old Waimake village was inhabited by four clans namely;

1. Ouroko clan.

2. Wahara clan.

3. Neuri – Uki clan; and

4. Wakumu clan.

All the above mentioned clans were of Rumu tribe. There was no Ouramoro or Kibiri clan or clansmen in Waimake. While the whole of the disputed area belonged to Ouroko, a small portion of it covering the old Waimake village site was bought off from Ouramoro chief "Ebai". Certain items of customary value were paid to Ebai for the little portion of land around the area covering and including the old Waimake village site.

Kibou was the first child of Kaka and when he died Kibou took over the leadership of the clan and the stewardship over all clan land including the disputed portion. Upon the death of Kibou, Akina, who is the current chief spokesman for Ouroko clan took over the chieftaincy of the clan as the first son of Kibou. It was submitted that Ouroko clan had lived in Waimake and used the land and the area surrounding it for many years. Most of their elders were born while the clan was still living at Waimake. They stated that during all those years, none of the Ouramoro chief, clansmen or any Kibiri clan disputed them.

It was only recently for the convenience of education for their children and access to better health and government services that they moved to their current villages of Ogomabu and Doibo. However, even after their move to their current locations, they still maintain their connection with the disputed land by having a house built in the old village which is currently standing. They use the house for camping when they visit the land for hunting, gathering or for any other purposes. Even during the recent visits to the land, none of the Ouramoro chief or any other Kibiri clans have disputed them, up until now, when logging activities started.

Ouramoro claim.

The opposing Ouramoro clan also based their claim mainly on ancestral ownership and the fact that a portion of land near and including the old Waimake village was bought from their grandfather Ebai by Ouroko chief Kaka.

They claimed that their father and grandfathers went around that area and no one questioned them. There were four big Kibiri villages existing at the area during those times and no one from a different tribe could enter the main Veiru creek without their father or grandfather sighting them.

Ouroko clan was allowed to purchase only Waimake old village site and nothing else. They were not given the whole area as they claimed. Now that logging activity started and money was involved, they were claiming the whole area thus, breaching the agreement their grandfathers made. They claimed that if the disputed land belonged to Ouroko, why did their grandfather Kaka then have to buy it from the Ouramoro chief? It is the Ouramoro belief that since the land was bought from their grandfather Narai Ebai, they own it, including the area surrounding and including the old Waimake village site.

While the above mainly touch on the parties’ historical and ancestral evidence, we have restated them purposely to show the basis of their claims of ownership and how they relate to the disputed land. Their restatement here do not in any way mean that we have accepted only one disputing clan’s ancestral history as being good against that of the other clan. They were all given equal value and importance 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 us, we found that the principles seem to weigh in favour of Ouroko clan against the Ouramoro clan. The majority of the members of the court decided in favour of awarding the ownership to Ouroko clan.

Our findings were based on the basis of the ancestral evidence and genealogy given by both clans and the evidence from the neighbouring clans.

One important aspect that we noted was the evidence of the Waimake village site and the area surrounding it being bought by Ouroko chief Kaka from the Ouramoro chief Ebai. We noted that both parties agreed on the purchase and there was no dispute that there was a purchase by Ouroko from Ouramoro. The only difference was that the Ouroko claimed that although a small portion was purchased from Ebai, the bigger portion of the disputed land further up from Waimake to the TFI access road including parts of set ups 28, 29 and 30 where they shared boundary with Parua Uki clan and Wakumu clan, still belonged to Ouroko clan.

Ouramoro clan on the other hand claimed that Kaka, the Ouroko chief was only allowed to purchase the Waimake village site only and the area immediately surrounding it. The purchase did not include the whole of the area commencing at Waimake and further up north to the TFI access road including set ups 28, 29 and 30. The bigger area was not sold and still belonged to the Ouramoro clan and not the Ouroko clan.

When we considered all of the evidence of land usage on the disputed area we found that the Ouroko clan had been using the Waimake area and the area further inland from Waimake as theirs without any opposition from the Ouramoro clan, or any Kibiri clans for that matter. Even witness Kemaru Bisue of Itimoro Karuramio clan, who gave evidence in support of Ouramoro clan confirmed in his answer to a question put to him that the disputed portion of land was bought by Kaka, the Ouroko chief from the Ouramoro chief Ebai. When considering all evidence in totality we found that the purchase was done in good faith and friendship. Items of value in the area that were normally exchanged for such purchases were paid by Kaka and were accepted by Ebai. That record of the purchase had been passed down the generations by both clans, and even other neighbouring clans know about it. There have been no dispute about it and parties had respected the deal made by their grandfathers.

While the Ouroko clan lay claims that the disputed area apart from the Waimake village site was still theirs, and the Ouramoro claimed that only Waimake was purchased, the question that arises is whether a selling clan could reclaim the land they originally sold some generations later?

We say that where land had been sold to another clan in accordance with custom in exchange for a certain customary obligation or consideration some generations ago, the current disputing generation of the selling clan cannot reclaim it back except with consent or permission from the current owning clan.

We found from the evidence that the principles mentioned earlier in this decision seem to favour the Ouroko clan. It was noticed that the Ouroko clan had been having connections with the disputed land and that connections are still current. There is evidence of their camp house still standing in Waimake village which they use when they go there for camping, fishing, hunting or gathering. There is also evidence of their tracks leading from Waimake to Ogomabu village where some of the Ouroko clansmen are now resident. Their existence and the use of the area had never been disputed by Ouramoro clan or any other Kibiri clans.

In view of the above findings and the majority decision by the members of the court to award ownership of the disputed land to Ouroko clan, the Local land Court makes the following finding of ownership regarding the disputed portion of land:

That the court declares that Ouroko clan of Ogomabu and Doibo villages led by Akina Kibou and David Koilavi are the owners of the disputed portion of land known as "Biribua" commencing at and including the old village site at Waimake and extending north westerly, up to the TFI access road including parts of set ups 28 and 29 where they share boundary with Parua Uki clan of Ogomabu village, and north easterly towards setup 30 where they share boundary with Wakumu clan.

The court awards use rights over the same area to Ouramoro clan for hunting and gathering purposes only.

Orders accordingly.