N1353

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS 157 OF 1995

NOU IGO, LOA BOKO AND DOUNA NOU ON BEHALF OF THEMSELVES AND THE TAURAMA GEAKONE CLAN

V

THE SECRETARY, DEPARTMENT OF PROVINCIAL AFFAIRS AND LOCAL LEVEL GOVERNMENT; 
THE SECRETARY, DEPARTMENT OF LANDS PHYSICAL PLANNING; 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA; AND 
DIRONA LOHIA ON BEHALF OF GEAKONE CLAN

Waigani
Sheehan J

10 May 1995
12 May 1995
24 May 1995
5 June 1995
7 June 1995
19 June 1995

CUSTOMARLY LAW - Application for declaration of customary rights and leadership status in order to negotiate for the disposition of land to State - Appropriate forum. 

COURTS AND JUDGES - Jurisdiction to determine status to represent clan in land transaction.

Facts:

The plaintiffs sought orders to the effect that they had equal customary rights like other clan members to represent the clan in negotiations with the State over clan land. In particular one of them was the sole survivor of successful litigant in an action to recover the customary land brought in the Land Titles Commission. He claimed an entitlement by this act to lead the negotiations. The clan representatives deposed that the negotiators were appointed by the traditional leaders of the clan and did not inlcude the plaintiffs.

Held:

The determination as to who has the authority to negotiate on behalf of the clan is governed by custom, and the National Court is not the appropriate forum.

Counsel

AD Lora for the plaintiffs
Mr Kandakasi Mr Frank and Mr Kawi for the defendants

19 June 1995

SHEEHAN J: The plaintiffs seek orders from this Court in the following terms:

1. That the plaintiffs have equal customary rights like other Geakone clan members over that part of the land known as "Bubue" comprised in the land commonly known as Burns Peak through which the State intends to construct a freeway known as the Poreporena Freeway. 

2. The plaintiffs be actively involved in negotiations or participate in negotiations with the defendants or any other relevant authority for the Government to acquire the land for the construction of the Proreporena Freeway. 

3. That the plaintiff, namely: Nou Igo being the surviving member of the original five(5) persons named in the Land Titles Commission decision of the 1966 relating to the land, Bubue, be the lead negotiator.

These proceedings were commenced by the plaintiffs on behalf of themselves and for their clan members. The defendants engaged in negotiating the purchase of land required for the freeway, challenged the plaintiffs’ authority to act for anyone other than themselves. There had been negotiations by the State representatives with the traditional leaders of the Geakone clan who submitted affidavit evidence that the plaintiffs did not have status of traditional leadership or the authority to act in these proceedings other than on their own behalf. 

That challenge was not answered by the plaintiffs and on 7 June this Court made an order that the plaintiffs could proceed only on behalf of themselves. The matter then continued on that basis. 

The plaintiffs’ claim is based on a claim to title pursuant to a decision of the Land Titles Commission of 16 February 1966 which determined that the persons holding rights to customary land known as "Bubue" were those named in that decision. In para 4 of the decision the plaintiff Nou Igo is stated to represent certain of the descendants entitled to share in that land. It is on that basis that Counsel for the plaintiff asks the Court to make a declaration reconfirming the Land Titles Commission decision, and to confirm by declaration that Nou Igo was therefore entitled to represent his people in the negotiations for the disposal of that land for the purposes for the Poreporena Freeway. In his affidavit of 22 May 1995 Nou Igo deposes that:

"the action .... is not to dispute ownership of Bubue land. It is to assert our rights because the State was not talking to us or willing to accept persons the Geakone Taurama group put forward."

The defendants in fact recognises that there is no dispute over the title. The State institutions involved in negotiation in fact rely on the Land Titles Commission determination. In his affidavit of 17 May, Colin Travertz, Secretary of Department of Provincial Affairs and Local Level Government, the first defendant states:

"The States recognised the descendants of those persons who by Motu Koitabu custom constituted the Geakone and Taurama Iduhu of (clan) Hohodae, Hanuabada Village as having permanent Usufructuary rights to the land known as Bubue. The are formed by descendant of Iramo Hada as confirmed by the Land Titles Commission in 1966...

The State recognises and will pay compensation to the person who represents the above mention descendants as their hereditary Tanebiaguna as in this case the descendants of Daube and Lohia Doriga".

As Mr Kadakasi stated to the Court the issue is not who will share in the proceeds on the disposal of the land to the State but in fact who it is that should represent the clans in negotiation of that disposition. As is stated by the clan representatives, the negotiators have already been decided by the traditional leaders of the clan and that decision it is not a matter in which this Court has any jurisdiction. 

Mr Kawi for the State pointed out that any disputes as to the degree of interest that an individual member of the clan may have in the land would be a matter for the Land Court only. And if this is the claim of the plaintiffs then there is no cause but for this Court to direct that application be made to the Local Land Court. But since it is acknowledged that none of the plaintiffs, in particular Nou Igo, is a clan leader then he has no say (and none of the plaintiffs have any say) as to who represents the clan in either disputes or negotiation as to the disposal of the land. 

Mr Lora in reply contended that the plaintiff Nou Igo, despite being specifically named in the title to the land, had been ignored in his requests to be party to the negotiation with the State. 

On the evidence before me I am satisfied that the issue of title does not arise in these proceedings. The plaintiffs in these proceedings are seeking a declaration on a quite different issue, namely authority to negotiate as leaders for the clan. 

That is a matter outside of the jurisdiction of this Court. The title to the land is clear and requires no declaration to reconfirm it. The rights of the plaintiff to represent their clan are matters of custom, to be dealt with by custom, by the people themselves or in the appropriate forum if there is a dispute. That forum is not the National Court. 

The plaintiffs applications are declined.

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