N8575
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 70 OF 2020

HENRY TULE REPRESENTING VOGEVOGE SUB-CLAN
OF KALMARUHI CLAN
First Plaintiff

MONDO GORI REPRESENTING SOMALANI SUB-CLAN
OF KALMARUHI CLAN
Second Plaintiff

ALOIS MAPEO REPRESENTING GUHI SUB-CLAN
OF KALMARUHI CLAN
Third Plaintiff

V

MARK ULAM AND JOE LEPLO REPRESENTING LAGILA CLAN
First Defendant

VINCENT LENGWAL REPRESENTING ALALA CLAN
Second Defendant

BISMARK INDUSTRIES LIMITED
Third Defendant

PNG FOREST AUTHORITY
Fourth Defendant

Kimbe: Cannings J
2020: 19th August, 24th, 26th September

FORESTRY – timber permits – distribution of royalties to owners of customary land on which timber harvested – dispute between customary landowners as to receipt of royalties – whether National Court has jurisdiction –determination of dispute in accordance with previous court decisions. 

This was a dispute between customary landowners about receipt of royalties generated by a timber project undertaken in accordance with a timber permit granted under the Forestry Act 1991. The plaintiffs relied on a 1962 decision of the Native Land Commission and a decision of the National Court in 2010 to assert their exclusive right to the royalties. The first and second defendants relied on a 2012 decision of the Local Land Court to assert their exclusive right to the royalties. None of the parties, including the company harvesting the timber (third defendant) and the PNG Forest Authority (fourth defendant) asserted that the National Court lacked jurisdiction. 

Held:

(1)	Though the dispute related to customary land ownership, the National Court had jurisdiction as the case could be resolved by application of existing court and commission decisions regarding ownership of the land. 

(2)	The dispute was resolved by ordering that the three plaintiffs (plus one other sub-clan that was not a party) plus the first and second defendants would from 2020 until expiration of the existing timber permit in 2024, be entitled to royalties in equal shares. 

Cases Cited

The following cases are cited in the judgment:

Patrick Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530
Doriga Mahuru v Hon Lucas Dekena (2013) N5305
Galem Falide v Registrar of Titles (2012) N4775
Joe Koroma v Mineral Resources Authority (2009) N3926
Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291
The State v Lohia Sisia [1987] PNGLR 102
Mangae v Aka (2010) N4107

ORIGINATING SUMMONS 

This was an application for declarations and orders regarding entitlement to timber royalties. 
Counsel

G Linge, for the Plaintiffs
P Mokae, for the First and Second Defendants
F Kua, for the Third Defendant
T Dalid, for the Fourth Defendant

26th September, 2020 

1.      CANNINGS J: Timber is being harvested in West New Britain in a project area described as “Kapuluk & Kapuluk Extension TRP”, under Timber Permit 14-50. The permit is held by Meda Assets (PNG) Ltd, which has sub-contracted its authority to conduct timber operations to Bismark Industries Ltd (the third defendant). The Minister for Forests, Hon Solan Mirisim MP, on 9 December 2019, granted a five-year extension to the timber permit, which is due to expire on 24 November 2024. 

2.     The PNG Forestry Authority (the fourth defendant) controls the distribution of royalties to customary landowners generated by the timber project. It has in recent times been distributing royalties to Mark Ulam and Joe Leplo, on behalf of Lagila Clan (the first defendants) and Vincent Lengwal (the second defendant).

3.     The plaintiffs are not happy about this. The plaintiffs represent three of the four sub-clans of Kalmaruhi Clan who were, at least to 2015, when the original Timber Permit 14-50 expired, the authorised beneficiaries of the royalties. This was determined in a case I decided in 2010: Mangae v Aka (2010) N4107. The plaintiffs in the present case are:

•	Henry Tule, on behalf of Vogevoge sub-clan of Kalmaruhi Clan (first plaintiff);
•	Mondo Gori, on behalf of Somalani sub-clan of Kalmaruhi Clan (second plaintiff);
•	Alois Mapeo, on behalf of Guhi sub-clan of Kalmaruhi Clan (third plaintiff). 

PLAINTIFFS’ CASE

4.     The plaintiffs seek a declaration that their sub-clans are the legitimate recipients of royalties and levies generated by the “Kapuluk & Kapuluk Extension TRP”, under Timber Permit 14-50, and that they are the legitimate sub-clan representatives. They seek orders that future royalties and levies be paid to them in accordance with the distribution formula set by the Court in Mangae v Aka (2010) N4107 (which would see each of their sub-clans receive 25% of the pool of royalties and levies generated by the project). They also seek orders that the clans represented by the first and second defendants get nothing and that the first and second defendants be required to pay to the plaintiffs what has already been received by them. 

5.     The plaintiffs argue that, although the extension to the TRP has seen timber being harvested in an area beyond the boundaries of the original area of TP 14-50, the extended area still is in land customarily owned by Kalmaruhi Clan, which means that the entitlement to royalties has not changed since the 2010 decision in Mangae v Aka (2010) N4107. 

6.     In that decision the Court adopted the findings of the Native Land Commission. In 1961-1962 Commissioner W J (Jack) Read conducted an inquiry and prepared a report on ‘Native Land Rights in the Kombe Tribal Area of Talasea Sub-district, New Britain District’. He made findings about customary ownership of land under the Native Land Registration Ordinance1952. He reported that the Kombe Tribal Area covers the 40-mile (64 km) coastal strip and offshore islands between Riebeck Bay on the east and Rein Bay on the west, an area of about 203,000 acres (81,200 hectares), belonging (in 1962) to 3,077 men, women and children. The Kombe Tribe is a patriarchy comprising five affiliated clans:

•	Kalmaruhi;
•	Monga Monga;
•	Poi;
•	Sapulo;
•	Talasea.

7.     Each clan is comprised of sub-clans. Kalmaruhi (consisting of four sub-clans) was the largest clan in terms of land area owned (110,000 acres out of a total of 203,000 acres). Each clan and sub-clan holds in perpetuity a sub-division of the tribal land, traditionally defined and recognised as that which belonged to its earliest forebears. Commissioner Read found that Kalmaruhi Clan consisted of four sub-clans:

•	Woge-Woge;
•	Somalani;
•	Guhi;
•	Rangihi. 

8.     The plaintiffs in the present case argue that the 1975 timber permit was signed by authorised representatives of those four sub-clans, and that in 2010 the National Court found that that was proper and lawful and that royalties had to be distributed equally amongst those four sub-clans, at least to the expiry of the timber permit on 21 May 2015. Nothing material has changed since 2010 or since 21 May 2015 to warrant a change in the distribution formula. Three of the four sub-clans are represented by the plaintiffs in the present case: the first plaintiff represents Vogevoge (another name for Woge-Woge), the second plaintiff represents Somalani, and the third plaintiff represents Guhi. 

9.     The plaintiffs say that the first and second defendants, and the clans they say that they represent, are interlopers who are trying to assert ownership of land that is not theirs. The plaintiffs question the legitimacy of such clans and assert that they are just names of convenience being used for the purpose of gaining royalties.

DEFENDANTS’ CASE

10.     The first and second defendants say that timber being harvested since 2015 under the “Kapuluk & Kapuluk Extension TRP”, Timber Permit 14-50, is not on Kalmaruhi Clan land. That area of land, which was the subject of the Jack Read Report, and which became the subject of Mangae v Aka (2010) N4107, is in the  coastal area. By contrast, the timber now being harvested is on land belonging to an inland clan known as Mui-Yaken. The Kalmaruhi Clan land is separated from Mui-Yaken Clan land by Lake Namu and Via River. The timber resources of the original 2015 timber permit have been depleted and do not extend into the area covered by the “Kapuluk & Kapuluk Extension TRP”, under Timber Permit 14-50. 

11.     The first and second defendants assert that the land boundaries, which show that the plaintiffs are asserting an interest in royalties to which they are not entitled, were settled by a decision of the Kimbe Local Land Court (his Worship, Mr T Dawai, presiding) on 27 March 2012, which has not been set aside or appealed against. That decision settled a dispute between Kalmaruhi Clan and Mui-Yaken Clan, and the plaintiffs, and this Court, are bound by that decision, it is argued. 

DETERMINATION

12.     I determine this case with some hesitation, as it might seem that the National Court is being drawn into a dispute that requires the Court to make a determination as to ownership of customary land, that being a subject over which it has no jurisdiction (The State v Lohia Sisia [1987] PNGLR 102). However, as I have said in a number of cases (eg Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291, Galem Falide v Registrar of Titles (2012) N4775, Doriga Mahuru v Hon Lucas Dekena (2013) N5305, Patrick Yal v Mission of the Holy Ghost (New Guinea) Property Trust (2017) N6530) a distinction must be drawn between two sorts of land cases:

•	those in which there is a dispute about whether land is customary land or competing claims to ownership of customary land;

•	those in which the dispute centres on interpretation or application of previous court decisions or judicial or quasi-judicial determinations as to the status of land or its customary ownership.

13.     Only in the first category does the National Court lack jurisdiction. Cases falling in that category must be dealt with by statutory bodies and courts such as the Land Titles Commission, the Local Land Court and the Provincial Land Court. The National Court retains jurisdiction if the case falls into the second category. It does not lose jurisdiction simply because the proceedings happen to relate to customary land (Joe Koroma v Mineral Resources Authority (2009) N3926).

14.     I note that none of the parties suggested that the National Court lacks jurisdiction. All of them want me to make a decision. I find that the present case does not fall into the first category as the Court has not been called upon to decide whether the land is customary land or which of competing parties are the owners of customary land. The case falls into the second category as it is being determined on the basis of the 1962 decision of the Native Title Commission (the Jack Read report), the decision of the National Court in Mangae v Aka (2010) N4107 and the 2012 decision of the Local Land Court.

15.     Applying those decisions to the facts of this case I find that timber being harvested according to the “Kapuluk & Kapuluk Extension TRP”, under Timber Permit 14-50, comes from Kalmaruhi land, the boundaries of which have been modified by the 2012 Local Land Court decision. 

16.     I must say I have doubt as to the force and effect of that decision as I cannot see how the Kalmaruhi Clan was fully and properly represented in those proceedings. However, it is a decision that applies to a large extent unless and until it is set aside, and it must be taken into account. The effect of that decision is to introduce into the bundle of customary law interests in Kalmaruhi land, the interests of the first and second defendants. It does not have the effect of extinguishing the interests of the plaintiffs. However, it means that there is a greater number of sub-clans or clans with an interest in royalties or other levies generated by the timber project.

17.     I find that the clans or sub-clans represented by the plaintiffs, plus Rangihi sub-clan (which is not a party to these proceedings), plus the first and second defendants, are all legitimate recipients of royalties and other levies, and that they are each entitled to receive payments in equal shares.

18.     I will frame an order to that effect, and make it apply prospectively. The first and second defendants have received all royalties for a few years. They can keep them. The plaintiffs should have been alert to what would happen after the expiry in 2015 of the original timber permit. They have been slow in acting. It would not be fair to expect the first and second defendants to repay anything they have received prior to this year, as it is highly likely it has already been spent. The parties will bear their own costs. 

ORDER

1.	The fourth defendant shall distribute royalties and levies for the “Kapuluk & Kapuluk Extension TRP”, under Timber Permit 14-50, in respect of any such royalties and levies caught by the order in these proceedings of 6 March 2020,in equal shares, to the following sub-clans or clans, which shall be received on behalf of each sub-clan or clan by the clan agents named hereunder:

a.	Vogevoge, to be received by Henry Tule;
b.	Somalani, to be received by Mondo Gori;
c.	Guhi, to be received by Alois Mapeo;
d.	Rangihi, to be received by a person recognised by the fourth defendant, after due inquiry, as a proper and authorised person;
e.	Lagila, to be received by Mark Ulam or Joe Leplo;
f.	Alala, to be received by Vincent Lengwal.

2.	This order operates prospectively as and from 30 October 2020, until the expiration of the “Kapuluk & Kapuluk Extension TRP”, under Timber Permit 14-50, and does not operate retrospectively to royalties and levies not caught by the order in these proceedings of 6 March 2020.

3.	The order in these proceedings of 6 March 2020 is dissolved on 30 October 2020.

4.	Other relief sought in the originating summons is refused.

5.	The parties shall bear their own costs of the proceedings.

6.	The proceedings will return to check compliance with this order on 8 December 2020 at 1.30 pm.

Judgment accordingly.
_________________________________________________________________
Linge & Associates Lawyers: Lawyers for the Plaintiffs 
Justin Talopa Lawyers: Lawyers for the First and Second Defendants
Felix Kua Lawyers: Lawyers for the Third Defendant 
T Dalid: Lawyers for the Fourth Defendant