PNG Law Reports 1994
[1994] PNGLR 425
N1244
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF BLASIUS VANIAK, TOMMY ROBIN, 
AND ORS
V
MUVAMASTRUM PTY LTD, BISMARK INDUSTRIES PTY LTD, AND THE STATE
Rabaul
Doherty J
14 February 1994
REAL PROPERTY - Timber - Definition of land in the Land Disputes Settlement Act includes timber.
CUSTOMARY LAW - Traditional land - Whether includes an interest in timber growing on it - Timber comes within definition of land in the Land Disputes Settlement Act - Dispute as to who is landowner - Who has right to seek court's protection? - Referred to a Local Land Meditator.
PRACTICE AND PROCEDURE - Standing of party to seek injunctions and declarations - Question of who is traditional landowner - Must be dealt with under the Land Disputes Settlement Act - No jurisdiction to deal with substantive issues until dispute as to standing resolved.
WORDS AND PHRASES - "Land" includes timber - Land Disputes Settlement Act.
Facts
The plaintiffs sought injunctions and declarations as to the legality of contracts for the cutting of timber and control of a Timber Rights Purchase area. The plaintiffs claimed that they were not members of and had no connections with the second defendant which claimed to be the landowner company. The issue for determination before the court was who was the correct party entitled to pursue rights in relation to the timber on the land.
Held
1.       Timber is a thing growing on land and so is within the definition of land in the Land Disputes Settlement Act Ch 45.
2.       The right to cut timber is an interest in land.
3.       Since the ownership of the land was in dispute, that must first be referred to the Local Land Court, in accordance with the Land Disputes Settlement Act.
Cases Cited
Arawe Logging v PNG [1988-89] PNGLR 216.
Counsel
K Latu, for the plaintiffs.
P Ousi, for the first and second defendants.
No appearance for the third defendant.
14 February 1994
DOHERTY J:  The application has originally come to the court by way of applications for injunctions and declarations as to the legality of contracts for the cutting of timber and control of a Timber Rights Purchase area.
The applicants were Blasius Vaniak, Tommy Robin and Antonia Sibika, all of whom say that they are traditional landowners in part of the Timber Rights Purchase area. They state that they represent the Mali clan, which is the traditional owner of part of the land, the subject of the Timber Rights Purchase Agreement.
They state that they have no knowledge of the terms of the contract and were not consulted or in any way represented at the negotiations for the drawing up of the agreement. They say they are not members and have no connections with the landowner company, (the second defendant).
I have been referred to the case of Arawe Logging v PNG [1988-89] PNGLR 216, which I have considered. That case relates partly to an interim injunction where plaintiffs had sought declarations concerning the Timber Rights Purchase and locus standi of the parties.
Having considered that judgment, it appears to me that the facts are not completely on all fours with those before me.
The Arawe Logging case concerned a dispute between some representatives of a landowner company and those that signed the agreement. I have been quoted part of the judgment where it was held that an argument that traditional landowners who signed Timber Rights Purchase agreements and give away their rights to timber have no legal status left to substantiate their locus standi is circular.
I agree with that finding. However, it does not completely apply to the situation before me, because what is in dispute before me is exactly who is the landowner and who has a right to seek protection of the landowner's rights. Having looked at the affidavit, it is clear to me that there is considerable dispute as to when exactly the ancestors of the plaintiffs came onto the land in question, exactly what right they acquired over the land in question, and whether their coming onto the land in question vested in them a right or an interest, giving them the status to come to court and seek protection and intervention against the contract made between other landowners and the government.
There is some dispute as to the status of an affidavit sworn by a fourth person, called Lucas Noget Kuak, who also states under oath that he is a traditional owner and leader in the community and has control, in that capacity, over the land in question. He subsequently filed another affidavit disputing the signature and the contents of the affidavit lodged in November 1993.
The first and second defendants object to the jurisdiction of the court, and refer to various cases on this point. The plaintiffs say that, as owners, they have a right to object and to the protection of the court of their rights and interests against all or any persons coming onto the land, usurping their powers as traditional owners.
From the facts, there is no doubt that this is customary land. There is no suggestion that the land has been the subject of compulsory purchase or that it has come under the control or ownership of the State. As such it remains customary land.
The trees and the cutting of it appear to me to come within the definition section of the Land Disputes Settlement Act Ch 45 s 2, which includes at (c), things growing on the land, or in water. Timber is a thing growing over the land, and the right to cut timber is an interest in land.
I consider that it will have to be resolved as to who exactly can seek declarations and injunctions in this court.
Therefore, I order that this matter be immediately referred to a Local Land Mediator and, if necessary, a Local Land Court for resolution to determine the status of the plaintiffs in relation to the owners of the company, Muvamastrum Pty Ltd.
I order that the plaintiffs make that referral forthwith, and I am prepared to give an interim protection of their claim over the timber provided that I am satisfied that they have made an immediate referral pursuant to the Land Disputes Settlement Act.
Lawyer for the plaintiffs: Kevin Latu & Associate.
Lawyer for the first and second defendants: Warner Shand Lawyers.
Lawyer for the third defendant: Solicitor General.