N1244

PAPUA NEW GUINEA
(IN THE NATIONAL COURT OF
JUSTICE HOLDEN IN RABAUL)

OS. 30 OF 1993.

BLASIUS VANIAK, TOMMY ROBIN AND ORS
(Plaintiffs)

AND:

MUVAMASTRUM PTY LTD
(1st Defendant)

AND:

BISMARK INDUSTRIES PTY LTD
(2nd Defendant)

AND:

THE STATE
(3rd Defendant)

Rabaul: Doherty, J
1994: 14th February

This is a Ruling on an Interim objection to the jurisdiction of the Court by the first and second defendants. There has been no appearance for the third defendant which is the State.

The Plaintiffs sought declarations concerning legality of Contracts to cut timber. Jurisdiction of the Court was objected to by the 1st and 2nd Defendants.

HELD:

1. 	Timber is a thing growing on land and so is within the definition of land in Land Dispute 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 Dispute Settlement Act Ch. 45.

Mr. Kevin Latu for the Plaintiffs
Mr. Ousi for the 1st and 2nd Defendants
No appearance for the 3rd Defendant

DECISION

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 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 nor 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 2nd defendant).

I have been referred to the case of Arawe Logging -v- Thomas Kokia and Others, unreported N 751 of Brunton, A.J., which I have considered. That case relates partly to an interim injunction were 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 tradition 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 on to the land in question, exactly what right they acquired over the land in question and whether their coming on to 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 on to 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 Dispute Settlement Act, 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 see declarations in this court and who can seek 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, Muvamastram.

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 referred pursuant to the Land Dispute Settlement Act.

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Lawyer for the Plaintiffs: Kevin Latu & Associate
Lawyer for the 1st & 2nd Defendants: Warner Shand Lawyers
Lawyer for the 3rd Defendant: Solicitor General