[1998] PNGLR 1

PAPUA NEW GUINEA

[national court of justice]

ENE LAND GROUP INC

V

FONSEN LOGGING (PNG) PTY and
G.R. LOGGING PTY LTD

kimbe: woods j
10 September 1997, 10 February 1998

Sea and coastal waters - Ownership by custom – The nature of marine tenures and fishing rights – Customary law and common law – The Crown/State prerogative in the modern state – The public domain of the sea – Claim to levy toll on shipping coastal waters. 

Facts

The plaintiff is a land group comprising the owners of customary land along the South Coast of West New Britain. The plaintiff claims to represent the undisputed customary owners of the sea and the land underwater between the mouth of the Alimbit and Au Rivers in the Kandrian area of the Province. 

The plaintiff’s claim that, being the owners of this sea area along the coast; they are entitled to be paid rental fees by the defendants for the passage of the defendants’ shipping through the area. The defendants’ ships come through this area or part of the coastal sea to load logs from logging activities, which the defendants conduct inland.

Held

1.	Undoubtedly, there has been some recognition of the principle that there may be customary rights to reefs and marine resources: see Tolain & Others v Administration [1965-66] PNGLR 323. However, at no time was there any recognition of any absolute possessory title in individual or groups to the sea for all purposes.

2.	There is no doubt that on the face of any claim to fishing or access to reefs which might interfere with a traditional fishing right, this court could recognise rights without any possessory document to title. However, the claim in this case is a claim for a right to control passage which includes a suggestion that the right to claim a toll for the passage of ships is also the cover effects if any that the passage of ships may have on the marine environment.

3.	This claim in so far as it claims some kind of absolute ownership must fail.

Papua New Guinea case cited

Tolain & Os v Administration [1965-66] PNGLR 232.

Other case cited

Warren v Prideaux [1673] 1 Mod 105.

Counsel

K Latu, for the appellant.
W Frizzell, for the first defendant.

10 February 1998

Woods j. The plaintiff is a land group comprising the owners of customary land along the South Coast of West New Britain which claims that it represents the undisputed owners of the sea and underwater area between the mouth of the Alimbit and Anu Rivers in the Kandrian area of the Province. Being the owners of this sea area along the coast, they are claiming rental fees for the passage of shipping through the area. They claim that for a number of years, they have been requesting negotiations with the defendants for a lease arrangement for the passage of shipping of the defendants through the area but the defendants have consistently failed to enter into any negotiations. The shipping, which has given rise to this claim, is apparently ships that have come through the coastal sea to load logs from logging activities on the mainland. The plaintiff has assessed a claim for the shipping that has traversed the area.

The first defendant is the logging contractor under a logging agreement with the second defendant to harvest and extract timber logs from a Local Forest Area inland from the coast between the Alimbit and Anu Rivers, and the second defendant is a company which represents the owners by custom of timber in the Local Forest Area fronting the coast between the Alimbu and Anu Rivers. 

This immediately appears to raise questions as to the relationship between the parties as it appears that the plaintiff and the second defendant may represent the same people. I will come back to this later in my judgment. 

The plaintiff is claiming its ownership of these coastal waters or sea by virtue of the fact that various members of the plaintiff Land Group are coastal people of that area who have since time immemorial exercised rights to gather and fish in and over those waters. There are various affidavits by people from that area and from other parts of Papua New Guinea which assert the existence of these rights and the importance of the sea to coastal peoples. So how are those rights asserted and claimed today. How do coastal people assert and claim those rights under the laws of Papua New Guinea?

There are various ways rights to land are asserted and claimed under the law. There are various laws covering the ownership and settlement of disputes over land and how people can exercise or apply those rights in their favour. However in this case, there is no evidence that any action has been taken under any of these laws apart from some mediation under the Land Disputes Settlement Act. And of course there may be further questions as to whether or how far any of these laws are applicable over the sea, or areas below high water mark. 

There can be no doubt that coastal peoples have exercised and asserted some form of marine tenure over reefs and coastal waters for the purposes of fishing and their livelihood. However how has such been recognised by others. Prior to the advent of the modern legal system in this country any such rights would have been exercised and recognised by either agreement or by force of arms. However when Papua New Guinea became administered by foreign powers as a single country, earlier in its two parts as Papua and German New Guinea and later as the Administrative unit of Papua and New Guinea, a body of general law was established by way of Orders in Council, ordinances and subordinate enactments and principles of English common law and equity were followed. Generally the Administration of the time ignored any pre-existing customary laws. Of course any pre-existing customary laws were not in any clearly identifiable form such as in writing and then the modern unified State was always going to have difficulty in ascertaining any one pre-existing customary law that could be said to apply to all peoples. However the Administration and the Government before Independence did provide for selective recognition of customary laws or rules or practices. However at all times it was clear that any such recognition of custom did not arise from its own force, rather it was only recognised according to modern legal principles and Ordinances, such as the Native Customs (Recognition) Ordinance 1963. . The early Administration always recognised that there were customary rights to land but that was done by appropriate Orders in Council and Ordinances. Also with respect to marine resources there was recognition of the rights of the owners of adjacent lands to fish and gather from the offshore reefs and in the coastal seas, for example in the Pearl, Pearl Shell and Beche-De-Mer Ordinance 1911-1934 (Papua) when certain areas of reefs and offshore were reserved for the use of the local people and commercial operations were excluded. The Native Customs (Recognition) Ordinance referred to above states in Section 8:

"...custom may be taken into account in relation to…

(b)	the ownership by custom of rights in over or in connection with the sea or a reef or in or on the bed of the sea or rights of fishing.

(c)	the ownership by custom of water, or of rights in over or to water."

But there was no scheme or framework whereby such rights were to be documented. And of course at all times there was the underlying or overriding common law doctrine of the Crown ( and by implication, the State) Prerogative which vests upon the Crown dominion to all seas. Of course there is nothing selfish or sinister over such Crown prerogative. It merely recognises a common property in a resource which was never stationary, subject to tides and currents and the general movement of water. And such common property consideration meant that no single individual or community had the exclusive right of access to fisheries resources, instead it would always be open to all fishermen who had the capability to harvest such resource. And this has been the situation accepted by modern States whereby they are able to regulate fisheries and grant access to them supposedly for the benefit of the State as a whole. Of course the common domain of the sea also recognises the practical aspect of the nature and need for the free passage of people through the sea, the sea being regarded generally as a public highway of all nations subject of course to any right to regulate such a highway for the safety of people and property.

As was said by Chief Justice Hale in Warren v Prideaux [1673] 1 Mod 105 and reported in English Reports Vol 86 P.766."If any man will prescribe for a toll upon the sea he must allege a good consideration because by Magna Charta and other Statutes every one hath a liberty to go and come upon the sea without impediment." 

And note here the international Convention on the Territorial Sea and the Contiguous Zone, Geneva, 1958. 

It may be suggested that the Land Act also enables rights to the sea or underwater land to be registered or recognised under the Lands Registration Act however there is nothing in that or any other legislation which overrides the fundamental common law principle of the State’s dominion over the sea. Of course one must distinguish the difference between the common law principle of the Crown’s or State’s prerogative over the sea as against its citizens and the administrative nature of the National Seas Act Ch 361 which asserts the State’s rights of administration and sovereignty over an area of offshore sea for the purposes of international law and the international community. 

There is no doubt that prior to Independence in 1975 there was some recognition of the principle that there may be customary rights to reefs and marine resources, see Tolain & Os v Administration [1965-66] PNGLR 232, but at no time was there any recognition of any absolute possessory title in individuals or groups to the sea for all purposes.

At Independence, Papua New Guinea adopted many of the pre-existing laws and policies. But where there are no enacted laws and where there may be a need to consider customary laws in the manner the Constitution stated in Schedule 2.1. The rules of substantive customary law are part of the underlying law, and in Schedule 2.2 the rules of the common law of England in effect immediately before Papua New Guinea’s independence on September 16 1975 are also part of the underlying law, but not if they are inconsistent with the Constitution, a statute or customary law or are inapplicable or inappropriate to the circumstance of the country from time to time. 

So where does that leave customary rights to the sea. It is quite clear that ever since Independence the State has recognised that there are some customary rights in individuals and groups to certain maritime resources. Thus see the Fisheries Act 1994 which clearly refers to traditional fishing, and provides that the Minister responsible for the management of fishing in the coastal waters must have regard to any traditional rights over or in relation to any area of fisheries waters. And both Papua New Guinea and Australia in the Torres Strait Treaty in 1978 recognised the need to preserve the traditional way of life and livelihood of the traditional inhabitants including traditional fishing. However nowhere has there been any recognition of any customary rights to an absolute possessory title to the sea. 

I am indebted to a paper by Yoli Tom’tavala entitled, ‘The Impact of Introduced Law on Customary Marine Tenures in Papua New Guinea’ published in Custom at the Crossroads being selected papers from the 1992 Conference of that title at the University of PNG, for help in my consideration of much of the above. 

There is no doubt that in the face of any claim to fishing or access to reefs, which might interfere with a traditional fishing right then this court, could recognise rights without any possessory document of title. However the claim in this case is a claim for a right to control passage which includes a suggestion that the right to claim a toll for the passage of ships is also to cover the effects if any that the passage of ships may have on the marine environment. The plaintiff has referred to a mediation agreement under the Land Disputes Settlement Act. That however only suggests certain limited rights, it does not declare or recognise any absolute possessory right which includes a right to regulate the passage of shipping. Note the definition of land in that Act which appears to limit itself by only including reefs and banks and things growing in or erected in water over land. 

It is suggested that the claim is concerned with more than free passage but that the defendant’s ships are actually loading on the coast. If that is so then the plaintiff asserts rights to the offshore waters and therefore must also be a landowner of the resource on the land and being taken from the land. As I have already queried at the beginning of this judgment should they then be party to the logging agreement and are somehow involved with the second defendant. It would appear therefore that the plaintiff in its claim to the ownership of the sea along the coast must also have an interest in the land fronting the sea and therefore must have an interest in the landowning enterprises which are involved in the land activities and represent some of the shareholders of the second defendant and therefore why was not the matter of the shipping covered then when negotiations were entered into with the logging company, the second defendant. It is clear that negotiations with the parties concerned with the logging of the land-based resource had to include all aspects of access to the land and also the transshipment of the logs and any effects that may have on the coastal foreshore. It is clear that there are some links between the plaintiff clans and the second defendant company, and also some disputes.

It is a pity that the second defendant has not been separately represented nor shown any interest in the proceedings and the plaintiff has not clarified its full relationship with the second defendant as that could perhaps clarify the situation. If the plaintiff also represents persons who are shareholders in the second defendant and this appears to be the case, then it should have covered its concerns in the resource agreement and not proceed separately against itself like this.

Whilst there is a need for the Government to give more attention to the laws and policies in respect of traditional fishing rights and traditional rights to offshore waters and to create a framework for the recognition of any such rights and also to more carefully consider environmental implications with its regulation of coastal shipping, this claim in so far as it claims some kind of absolute ownership must fail and clearly the plaintiff had other means to deal with its concerns with the use of the foreshore and any damage to the foreshore and reefs.

I dismiss the claim by the plaintiff.

Lawyer for the plaintiff: Kevin Latu Lawyers.
Lawyer for the defendant: Warner Shand Lawyers.