N9686

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.77 OF 2020

BETWEEN:
KOPI LARAPA for and on behalf of the TAKOPA Tribe
of the MIYAWA & TANDOLA areas.
Plaintiffs

AND:
AKEN PULUKU, MARTIN YOKOPARE, ISAKA AIYAMALE,
LIPAI NAPAI, SAPAK KOLONGI & YOLE PEKE
First Defendants

AND:
BARRICK NIUGINI LIMITED
Second Defendant

Waigani: David, J
2022:  8th February & 3rd June
 
CONSTRUCTION OF DOCUMENT – land investigation and genealogy study – declarations and other relief sought – a document speaks for itself. 

Cases Cited:
Papua New Guinean Cases

Ok Tedi Mining Ltd v Niugini Insurance Corporation & Ors (No.2) [1988-89] PNGLR 425
The Independent State of Papua New Guinea, Sam Akoita, Minister for Mines & Tolukuma Gold Mines Ltd v Central Provincial Government (2009) SC977
Kurubu Ipara,  v Mineral Resources Authority (2011) N4216
Amos Ere v National Housing Corporation (2016) N6515
Barrick (Niugini) Ltd v Mineral Resources Enga Ltd (2019) N7938
Kopi Larapa for and on behalf of Takopa Tribe of the Miyawa & Tandola Areas v Aken Puluku & Ors, OS No.77 of 2020, Unreported Judgment delivered on 22 September 2021

Overseas Cases

The Russian Commercial And Industrial Bank v British Bank For Foreign Trade Ltd (1921) 2 AC 438

Counsel:

Daniel Kuli Piam, for the Plaintiffs
Charles W. Kaki, for the First Defendants
Eroni Lili, for the Second Defendant

JUDGMENT

3rd June, 2022

1.	DAVID J: INTRODUCTION:  This is the judgment of the Court following a trial.  The matter before the Court is the plaintiffs´ originating summons filed on 6 March 2020.

BRIEF BACKGROUND FACTS

2.	The proceedings emanate from a dispute relating to the payment of riverine compensation to certain agents identified in the findings of the Lower Porgera Land Investigation Report published in November 1994 which was conducted by one Kurubu Ipara (Ipara), the then District Administrator of the Porgera District which is within the Porgera-Lagaip Electorate of Enga Province.  The Lower Porgera Land Investigation Report is commonly known as the Kurubu Ipara Report.

3.	The Kurubu Ipara Report was based on the land investigation and genealogy study (the Investigation) which was commissioned by the then Porgera Joint Venture (the Joint Venture) managed by Placer Dome (PNG) Ltd.  The Investigation was conducted to identify and compile schedules of all landowners who would receive on their behalf compensation payments made by the Joint Venture.

4.	The Investigation was completed and its findings were incorporated into the Kurubu Ipara Report which has since been used as a basis upon which the second defendant, Barrick (Niugini) Limited (Barrick) pays compensation to landowners affected by the disruption caused by alluvial mining and the discharge of mine-derived tailings and sedimentation into the Maiapame, Pongema and Porgera rivers. 

5.	These proceedings were commenced as a result of various disputes between the agents of the Pepeyange tribe and the agents of the Takopa tribe over land identified with the references 1-B-6 (B6) otherwise known as Miyawa Land Area (B6 Miyawa) and 1-B-8 (B8) which is also known as the Tandalo Land Area (B8 Tandalo).

6.	At Schedule 3 page 20 of the Kurubu Ipara Report, B6 Miyawa is identified under the column “Clan or Tribe” to be owned by the Takopa tribe.

7.	At Schedule 6 page 29 of the Kurubu Ipara Report, some of the first defendants who are from the Pepeyange tribe are listed as clan agents for the Takopa tribe to receive compensation payments.

8.	On 25 August 1999, the first defendants commenced proceedings, OS No.509 of 1999, Lipia Napai, Sapak Kolongi, Amos Puluku, Mapia Puluka, Puluka Poke, Martin Yakopara, Isaka Aiyaimale & Yole Peke v Kopi Larapa & Placer (PNG) Pty Ltd in this Court in Mt. Hagen (the 1999 Mt. Hagen Court proceedings) seeking, among others, a declaratory relief that they were the true customary landowners of B6 Miyawa and B8 Tandalo and were entitled to claim compensation with respect to those portions of land.

9.	On 9 January 2001, the 1999 Mt. Hagen Court proceedings were dismissed in their entirety for want of jurisdiction.  The Court also made a declaration that Kopi Larapa and the Takopa tribe continue to receive payment from Placer (PNG) Ltd in respect of B6 Miyawa and B8 Tandalo until the issue of customary land ownership was decided by the Local Land Court.

10.	These disputes have prevented Barrick from making the necessary compensation payments to the agents identified in the Kurubu Ipara Report.  Barrick has stopped making compensation payments since June 2009.  Outstanding compensation payments that have been put on hold for the period between 2009 and 2020 amount to K524,277.00 and this comprises K125,399.00 with respect to B6 Miyawa and K398,878.00 in respect of B8 Tandalo. 

SUBSTANTIVE RELIEF CLAIMED

11.	The substantive relief specifically claimed by the plaintiff in the originating summons are:
	
	“1.	A declaration and a finding that the Lower Porgera Land Investigation Report compiled by Kurubu Ipara in November 1994 sanctioned by Porgera Joint Venture (then) and now, Barrick Niugini Limited, the operator of the Porgera Gold Mine, to identify and confirm clans and tribes and lands affected the mine tailing disposals (“the Kurubu Ipara Report”) has identified that the land code named B6 is for the Miyawa Land, owned by the Takopa tribe and land code named B8 is for the Tandola Land, owned by the Takopa Yope Tribe as per the finding at Schedule 3 page 20 of the Kurubu Ipara Report.
	2.		A declaration and a finding that according to the Kurubu Ipara Report at Schedule 3, page 20, it did not and does not state that the land code named as B6, Miyawa and B8, Tandola are owned by a clan or tribe called Pepeyange tribe or clan.
	3.	A declaration and a finding that according to Court documents filed in a previous related Court proceedings styled as OS No.509 of 1999, Lipia Napai, Sapak Kolongi, Amos Puluku, Mapia Puluka, Puluka Poke, Martin Yakopara, Isaka Aiyaimale & Yole Peke v Kopi Larapa & Placer (PNG) Pty Ltd, the Takopa Tribe and the Pepeyange Tribe are completely different tribes and are in no way related to each other and the Plaintiffs in that proceedings styled as OS No 509 of 1999 referred above who are the First Defendants herein are not from the Takopa Tribe but the Pepeyange Tribe.
	4.	A finding and a declaration that according to the Kurubu Ipara Report and the Court documents filed in that related old proceedings styled as OS No. 509 of 1999 that, naming the Plaintiffs in that OS 509 of 1999 proceedings namely Lipia Napai, Sapak Kolongi, Amos Puluku, Mapia Puluka, Puluka Poke, Martin Yakopara, Isaka Aiyaimale & Yole Peke who are the First Defendants herein as the appointed clan agents for the Takopa Tribe under Schedule 6, page 29 of the Kurubu Ipara Report is a contradiction because they are from the Pepeyange Tribe and not the Takopa Tribe.
	5.	A finding and a declaration based on the Kurubu Ipara Report and the Court documents filed in proceedings OS 509 of 1999 that the Plaintiff Kopi Larapa is from the Takopa Tribe.
	6.	A finding and a declaration based on the Kurubu Ipara Report and the court documents filed in proceedings styled as OS 509 of 1999 that the first defendants are from the Pepeyange Tribe.
	7.	Consequently, a declaration that the Takopa tribe is entitled to the riverine compensation payments for the land referenced as B6, Miayawa and B8, Tandola areas as per the findings of the Kurubu Ipara Report.
	8.	Further consequently, a declaration and an order that the Second Defendant accordingly pays the Plaintiff and his Takopa Tribe the accumulated riverine compensation payments due and owing forthwith.” (sic)

UNDISPUTED FACTS

12.	The undisputed facts that are contained in the Statement of Agreed and Disputed facts and Legal Issues for Trial filed on 6 September 2021 and deduced from the evidence brought before the Court are:

1.	Between April and November 1994, an investigation and genealogy study was commissioned by the then Joint Venture now Barrick, then operator of the Porgera Gold Mine.  The study was carried out by Ipara, the then District Administrator of the Porgera District which is within the Porgera-Lagaip Electorate of Enga Province.
2.	The Investigation was carried out to identify those persons having land and water use rights whose rights were affected by the mine tailings and sedimentation being discharged into the Maiapame, Pongema and Porgera rivers and to determine the compensation rates for those affected landowners in regard to the land use and riverine rights in the lower Porgera area.

3.	The objectives of the Investigation were to:

(a)	Identify and compile schedules of all the landowners from the various tribes, clans and sub-clans owning land between the Special Mining Lease boundary and the junction of the Porgera and Lagaip rivers.
(b)	Prepare Agency Agreements to be signed by the landowners appointing their agents, to receive on their behalf any compensation payments made by Barrick.
(c)	Locate tribal or clan boundaries where they intersect the affected rivers and record the positions using the Global Positioning System (GPS).
(d)	Prepare boundary agreements to be signed by landowner agents witnessing their agreement to the locations of their respective clan or tribal boundaries.
4.	The Investigation was completed and a report was compiled and submitted to Placer Dome then and now Barrick and this is the report that Barrick uses to pay compensation to those landowners who are affected by the mine tailings and waste disposal and sedimentations which report is commonly known as the Kurubu Ipara Report.
5.	Since the Kurubu Ipara Report was published, there have been continuous disputes between the agents of a tribe called Pepeyange who are the first defendants and the agents of a tribe called Takopa who are the plaintiffs over the compensation payments for the portions of land code-named B6 Miyawa, B7 Apano,  B8 Tandalo, B9 Tandalo and B10 Tawuanga.
6.	The first defendants and others filed the 1999 Mt. Hagen Court proceedings in which they sought declaratory orders to declare themselves as the true customary landowners of B6 Miyawa and B8 Tandalo and to remove Kopi Larapa, the lead plaintiff in these proceedings as one of the clan agents/beneficiaries, but the National Court dismissed the action on the basis that it did not have jurisdiction to enquire into customary landownership issues and ordered that Kopi Larapa continue to receive payments on behalf of the Takopa tribe until decided otherwise by the Local Land Court.
7.	The Takopa tribe and Pepeyange tribe are completely different tribes and have no ancestral or any sort of relationship.
8.	The first defendants are from the Pepeyange tribe.
9.	There is a bit of confusion in the Kurubu Ipara Report because at Schedule 6 page 29, some of the first defendants in these proceedings who were some of the plaintiffs in the 1999 Mt. Hagen Court proceedings and who are from the Pepeyange tribe are listed as clan agents for the Takopa tribe and are authorised to receive compensation payments for the loss of riverine rights.
10.	This has resulted in a long court battle between the plaintiffs and the first defendants as to who was entitled to receive compensation payments for the loss of riverine rights with respect to B6 Miyawa and B8 Tandalo.           

DISPUTED FACTS

13.	The disputed facts are:

1.	B8 Tandalo was mistakenly identified in the Kurubu Ipara Report to be owned by the Takopa-Yope clan/tribe.
2.	According to Schedule 3 page 20 of the Kurubu Ipara Report, B6 Miyawa and B8 Tandalo are not identified to be owned by Pepeyange tribe therefore, Pepeyange tribe does not own any of those portions of land. 
3.	The purpose of these proceedings is not to ask the Court to determine which tribe is the true landowner of B6 Miyawa and B8 Tandalo, but to ask the Court to declare and confirm which tribe the Kurubu Ipara Report states is the landowner of those two portions of land.
4.	The first defendants are not from the Takopa tribe, yet they were named in the Kurubu Ipara Report as agents for the Takopa tribe who owns B6 Miyawa and B8 Tandalo.  There is no sub-clan called Takopa-Yope in the subject area; it should be Pepeyange-Yope tribe.
5.	It is only logical and true that only members of the Takopa tribe were supposed to have been named as the clan agents to receive compensation payments for the loss of the use of the rivers and land with respect to B6 Miyawa and B8 Tandalo.
6.	According to the Kurubu Ipara Report, it is clear that B6 Miyawa and B8 Tandalo are owned by the Takopa tribe and not the Pepeyange tribe and consequently, the Takopa tribe is entitled to receive compensation payments for the loss of riverine rights with respect to those portions of land.
7.	At Schedule 3 page 20 of the Kurubu Ipara Report, B6 Miyawa was mistakenly identified under the column “Clan or Tribe” to be owned by Takopa tribe.          

MAIN LEGAL ISSUES FOR DETERMINATION

14.	The main legal issues for determination are:

1.	Whether the Court has jurisdiction to grant the declaratory orders sought by the plaintiffs?  
2.	Whether the Court should grant the declaratory orders sought by the plaintiffs? 

EVIDENCE

15.	The plaintiff’s case is supported by the affidavit of Kopi Larapa sworn on 4 March 2020 and filed on 6 March 2020 (Exhibit A).

16.	In contesting the plaintiffs’ claim, the first defendants rely on the following affidavits:

1.	Affidavit in Support of Aken Puluku sworn on 9 April 2020 and filed on 15 April 2020 (Exhibit D1A);
2.	Supplementary Affidavit of Aken Puluku sworn on 14 April 2020 and filed on 15 April 2020 (Exhibit D1B);
3.	Affidavit in Support of Lipa Napai sworn on 9 April 2020 and filed on 15 April 2020 (Exhibit D1C); 
4.	Affidavit in Support of Yalo Kapili sworn on 9 April 2020 and filed on 15 April 2020 (Exhibit D1D); and
5.	Further Supplementary Affidavit of Aken Puluku sworn on 21 April 2020 (Exhibit D1E).

17.	The second defendant relies on the affidavit of Trevor Liversidge sworn on 24 November 2021 and filed on 25 November 2021 (Exhibit D2A).

18.	All affidavits were admitted into evidence by consent of the parties.

19.	No cross-examination was conducted.

20.	I have considered the evidence.

JURISDICTION OF THE COURT
Parties’ submissions

21.	Mr. Lau for the first defendants submits that the entire proceedings be dismissed for want of jurisdiction as any dispute in relation to interests in customary land should be adjudicated in accordance with the provisions of the Land Disputes Settlement Act so the National Court and even the Supreme Court do not have jurisdiction.  

22.	Mr. Lau has also argued that these proceedings should be dismissed because:

	1.	the requirements of a representative action under Order 5 Rule 13(1) of the National Court Rules have not been met;
	2.	the proceedings did not disclose any reasonable cause of action or they were frivolous or vexatious or were an abuse of the process of the court under Order 12 Rule 40(1) of the National Court Rules arguing that; they ought to have been commenced by writ of summons because there was a substantial dispute of fact as was disclosed by the affidavits relied on by the parties and there was an allegation of fraud that the first defendants were fraudulently receiving compensation in connection with the disputed portions of land when they had no customary interest in them; and only declaratory orders were being sought which would be of no practical utility in resolving the real dispute between the parties, which was the ownership of customary land with respect to B6 Miyawa and B8 Tandalo.  

23.	Mr. Lili for the second defendant submits that while the second defendant understands that these proceedings relate to a controversy that stems from the Kurubu Ipara Report and the assertion that the plaintiff and people he represents are from the Takopa tribe and the first defendants are members of the Pepeyange tribe and therefore are not entitled to receive compensation in connection with B6 Miyawa and B8 Tandalo, it has maintained a neutral position.

24.	Mr. Piam for the plaintiff submits that the issue of jurisdiction has been considered and determined by the Court on several occasions already namely, by Manuhu J on 21 September 2020 and by myself on 22 September 2021 and therefore is res judicata.  Counsel also stated that the first defendants filed an application for leave to appeal Manuhu J’s ruling, but was refused by the Supreme Court as it found that the proceedings commenced by way of originating summons seeking declaratory orders were properly filed.

Reasons for decision

25.	I addressed the issue when dealing with the first defendants’ motion filed on 12 August 2021 to dismiss the proceedings under Order 12 Rule 40(1) of the National Court Rules which I refused on 22 September 2021:  see Kopi Larapa for and on behalf of Takopa Tribe of the Miyawa & Tandola Areas v Aken Puluku & Ors, OS No.77 of 2020, Unreported Judgment delivered on 22 September 2021.  Paragraphs 32, 40 and 41 are relevant and I restate them below:

“32.	Proceedings in which the sole or principal question is the construction of an Act or of any instrument made under any Act, or of any deed, will, contract, or other document or a question of law or in which a substantial dispute is unlikely, are amongst those more appropriately commenced by originating summons:  Order 4 Rule 3(2); Masive v Kenderop (1985) PNGLR 105; Tigam Malewo  v Keith Faulkner (2009) SC960; Ekepa v Nalepe (2020) N8564...
40.	In the Supreme and National Court cases of Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107, Talibe Hegele v Tony Kila (2012) SC1180, Doriga Mahuru v Hon Lucas Dekena (2013) N5305 and Manub Edom v Wanor Agun (2015) N6076, the courts have held that the Supreme and National Courts have jurisdiction where the question of the determination of ownership of customary land does not arise.  
	41.	 In the originating summons, the plaintiffs seek eight declaratory relief.  The declaratory relief essentially relate to the Kurubu Ipara Report and court documents filed in the 1999 Court proceedings.  The Court is not being asked to determine ownership of customary land so the Court will have jurisdiction.”
 
26.	Manuhu, J also addressed the issue in a judgment he delivered on 21 September 2020 when dismissing an application by the first defendants seeking orders to dismiss the entire proceedings for; not meeting the requirements of a representative action; and for being frivolous and vexatious or for being an abuse of the process of the Court.  His Honour essentially ruled that the proceedings were properly before the Court as the declarations sought concerned the construction of the Kurubu Ipara Report and court documents filed in the 1999 Mt. Hagen Court proceedings.  I have had the benefit of perusing the relevant judgment.

27.	I have not sighted any judgment, order or transcript in relation to the refusal to grant leave to appeal the ruling of Manuhu, J by the Supreme Court though.  

28.	I reiterate that the Court is not being asked to determine ownership of customary land so the Court will have jurisdiction.   

29.	I concur with and accept the plaintiffs’ submission that the issue of jurisdiction is res judicata.  Therefore, the issue cannot be reagitated.  

DECLARATIONS
Parties’ submissions

30.	The plaintiffs submit that the declarations and orders sought should be granted because:

1.	There exists a very long controversy between the plaintiffs and the first defendants as to who should collect or benefit from the riverine rights compensation payments paid by the second defendant with respect to B6 Miyawa and B8 Tandalo as reported in the Kurubu Ipara Report.

2.	These proceedings concern the right of affected landowners to receive compensation payments in relation to land use and riverine rights in the lower Porgera area affected by the Porgera mine tailings and sedimentation discharged into the rivers going through their areas.

3.	The proceedings are brought by the plaintiffs who are members or agents of the Takopa tribe who are most affected and who have been denied their right to receive compensation payments in respect of B6 Miyawa and B8 Tandalo in accordance with the Kurubu Ipara Report.

4.	The Court has jurisdiction and therefore has power to make the declarations and orders sought by the plaintiffs.

5.	The first defendants have substantial and tangible interest in defending these proceedings as they are the current recipients of the relevant compensation payments.

6.	The issue is a real one whose resolution is of practical utility and it will enable them to be paid compensation payments which they are currently missing out on because the first defendants are wrongly benefitting and receiving the compensation payments.        

31.	The first defendants, in essence, contend that the proceedings should be dismissed because the Court cannot correct the Kurubu Ipara Report as it is what it is.  They argue that the proper thing to do is to take the dispute concerning the ownership of B6 Miyawa and B8 Tandalo to the Local Land Court for adjudication under the provisions of the Land Disputes Settlement Act. 

32.	The second defendant maintains a neutral position in respect of certain matters, including the findings made by Ipara in the Kurubu Ipara Report as to which clan is entitled to receive the compensation payments.   It relies on the evidence of Mr. Trevor Liversidge contained in his affidavit (Exhibit D2A) to show the current state of payments which have been made in respect of B6 Miyawa and B8 Tandalo. 

33.	The second defendant also argues that since paragraph “h” of the Ministerial Determination dated 24 January 1996 provides that compensation monies must be disbursed on the basis of the Kurubu Ipara Report, it has been making the necessary compensation payments to the agents identified in the Kurubu Ipara Report.   
Reasons for decision

34.	The parties have not referred me to any legal principle(s) of construction of documents to assist me in the construction of the Kurubu Ipara Report.  In the absence of such assistance, I have considered the principle applied in contract law that a written contract should be allowed to speak for itself.  Given that a written contract is a document, I think the principle can be borrowed and applied to the construction of other documents as well, as in this case.  In the present case, the Kurubu Ipara Report should speak for itself.  Should I venture out of that (which I will not do), I will be entering into the domain of the Local Land Court and usurping and exercising its functions and powers unlawfully under the provisions of the Land Disputes Settlement Act and in so doing I will be acting without jurisdiction.   

35.	In the light of that, what does the Kurubu Ipara Report say about the ownership of B6 Miyawa and B8 Tandalo and who are the agents of those portions of land?  

36.	The Kurubu Ipara Report at Schedule 3 page 20 (Lengths of river banks affected by tailings), reports that the landowners of B6 Miyawa are the Takopa tribe. Pepeyange tribe’s name does not feature. The length of river affected is 1,023.45 linear metres.  

37.	In addition, the Kurubu Ipara Report at Schedule 3 page 20 (Lengths of river banks affected by tailings), reports that the landowners of B8 Tandalo are the Takopa-Yope tribe. Again, Pepeyange tribe’s name does not feature.  The length of river affected is 1,665.70 linear metres. 

38.	The Kurubu Ipara Report clearly does not report that B6 Miyawa and B8 Tandola are owned by a clan or tribe called Pepeyange.  

39.	Are Takopa and Takopa-Yope same or different tribes?  Is Takopa-Yope tribe a reference to the Pepeyange tribe?  The Kurubu Ipara Report offers no answers to those questions.  However, as mentioned already, it is an undisputed fact that the Takopa tribe and Pepeyange tribe are completely different tribes and have no ancestral or any sort of relationship.  It is also an undisputed fact that the first defendants are from the Pepeyange tribe and not from the Takopa tribe.

40.	The Kurubu Ipara Report identifies and lists at Schedule 6 page 29, the names of agents for the Takopa tribe who were appointed in relation to Porgera River Tailings and they are; Isaka Yaiamale, Lipa Napai, Mapia Puluku, Amos Puluku, Sapaka Wangali, Martin Yokopara, and Kopi Larapa.

41.	It seems that the dispute essentially is amongst the agents themselves. In the present case, Kopi Larapa who is representing the plaintiffs as lead plaintiff has taken out this action against the first defendants who include agents namely, Isaka Yaiamale, Lipa Napai and Martin Yokopara.  It is not clear whether Amos Puluku is the one and same person named as Aken Puluku or that Aken Puluku has any direct connection with Amos Puluku.  It is also not clear whether Sapaka Wangali is the one and same person as Sapak Kolongi or that Sapak Kolongi has any direct connection with Sapaka Wangali. 

42.	The Kurubu Ipara Report identifies and lists at Schedule 7 page 32, portions of land that are under dispute.  Land code-named B5-B9 (Miyawa, Item 4) are some of them.  The disputing groups are identified as those from Tayama and Takopa tribes and the individuals involved in the dispute are Kopi Larapa and Yaliman Pawe.  Clause 4.5 of the Kurubu Ipara Report states that compensation payments for all the portions of land under dispute must be withheld until each of the disputes are resolved.

43.	The Table of Contents to the Kurubu Ipara Report has Appendix 1L as the Schedule of Landowners of the Takopa tribe and Appendix 2L contains the Agency and Boundary Agreements for the Takopa tribe.  Both these appendices are missing from the copy of the Kurubu Ipara Report annexed to Exhibit A, (Kopi Larapa’s affidavit) and their probative value or otherwise to the construction of the Kurubu Ipara Report cannot be appreciated or considered.   Appendices 1L and 2L are also missing in the copy of the Kurubu Ipara Report attached to Exhibit D2A (Trevor Liversidge’s affidavit). It is also noted that Pepeyange tribe’s name is neither among the schedule of landowners specified in Appendix 1A to Appendix 1U nor listed as having entered any Agency and Boundary Agreement specified in Appendix 2A to 2U.

44.	In The Independent State of Papua New Guinea, Sam Akoita, Minister for Mines & Tolukuma Gold Mines Ltd v Central Provincial Government (2009) SC977, the Supreme Court held that merely seeking declaratory orders without more may amount to abuse of the Court’s process and proceedings should be dismissed:  see also Ok Tedi Mining Ltd v Niugini Insurance Corporation & Ors (No.2) (1988-89) PNGLR 425.  In the present case the plaintiff is not only seeking declaratory orders, but also seeking an order for payment of the accumulated riverine compensation payments due and owing to the plaintiffs and the Takopa tribe with respect to B6 Miyawa and B8 Tandalo.  Therefore, to my mind, the manner, in which the relief have been sought, does not offend against the above principle.

45.	The factors to be satisfied before a declaration/declaratory order can be made were set out in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and these are:

1.	There must exist a controversy between the parties.
2.	The proceedings must involve a right.
3.	The proceedings must be brought by a person who has a proper or tangible interest in obtaining the orders.
4.	The controversy must be subject to the Court’s jurisdiction.
5.	The defendant must be a person having a proper or tangible interest in opposing the plaintiff’s claim.
6.	The issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.

46.	These factors have been endorsed and applied in this jurisdiction Ok Tedi Mining Ltd v Niugini Insurance Corporation & Ors (No.2) (1988-89) PNGLR 425, The Independent State of Papua New Guinea, Sam Akoita, Minister for Mines & Tolukuma Gold Mines Ltd v Central Provincial Government (2009) SC977, Kurubu Ipara v Mineral Resources Authority (2011) N4216, Amos Ere v National Housing Corporation (2016) N6515, Barrick (Niugini) Ltd v Mineral Resources Enga Ltd (2019) N7938.

47.	I am satisfied that the factors for the making of a declaration are present in this case.  However, in doing so, I can only confine myself to matters contained in the Kurubu Ipara Report, the Court documents filed in the 1999 Mt. Hagen court proceedings and the undisputed facts agreed to by the parties and nothing more. As to the undisputed facts, I think they have been adequately addressed and subsumed into the above discussion.  

48.	Any dispute about the traditional ownership of B6 Miyawa and B8 Tandola will need to be taken to the Local Land Court for adjudication under the provisions of the Land Disputes Settlement Act.

49.	For the foregoing reasons, I will grant the relief sought in the terms detailed below. 

ORDER

50.	I now make the following orders.

1.	A declaration that according to the Lower Porgera Land Investigation Report compiled by Kurubu Ipara in November 1994 sanctioned by Porgera Joint Venture (then) and later by Barrick Niugini Limited, the then operator of the Porgera Gold Mine, to identify and confirm clans and land affected by the mine tailing disposals (Kurubu Ipara Report) had identified that land code-named B6 Miyawa was owned by the Takopa tribe and land code-named B8, Tandola was owned by the Takopa-Yope tribe as per the finding at Schedule 3 page 20 of the Kurubu Ipara Report.

2.	A declaration that according to the Kurubu Ipara Report at Schedule 3 page 20, it does not state that land code-named B6 Miyawa and land code-named B8 Tandalo are owned by the Pepeyange tribe.

3.	A declaration that the Takopa tribe and Pepeyange tribe are completely different tribes and have no ancestral or any sort of relationship.

4.	A declaration that the first defendants in these proceedings and the plaintiffs in OS No.509 of 1999, Lipa Napai, Sapaka Kolongi, Amos Puluku, Mapia Puluku, Puluku Poke, Martin Yokopara, Isaka Aiyaimale and Yoke Peke v Kopi Larapa & Placer (PNG) Pty Ltd are from the Pepeyange tribe.

5.	A declaration that while the first defendants (or most of them) in these proceedings are identified in Schedule 6 (Appointed Agents-Porgera River Tailings) page 29 of the Kurubu Ipara Report as appointed agents for the Takopa tribe, they are actually from Pepeyange tribe. 

6.	A declaration that according to the Kurubu Ipara Report in Schedule 6 page 29, Kopi Larapa is from the Takopa tribe.

7.	A declaration that according to the Kurubu Ipara Report in Schedule 3 page 20, Takopa tribe is entitled to the riverine compensation payments for the land code-named B6 Miyawa while the Takopa-Yope tribe is entitled to the riverine compensation payments for the land code-named B8 Tandalo.

8.	A declaration and an order that the second defendant or its successor pay the plaintiff as agent of the Takopa tribe all accumulated riverine compensation payments in relation to the land code-named B6 Miyawa. 

9.	A declaration and an order that the second defendant or its successor pay the authorised agent of the Takopa-Yope tribe all accumulated riverine compensation payments in relation to the land code-named B8 Tandalo. 

10.	If the plaintiffs and first defendants have any issue touching on the question of ownership of the two portions of land code-named B6 Miyawa and B8 Tandalo as reported in the Kurubu Ipara Report, they are at liberty to take up the matter in the Local Land Court for adjudication under the provisions of the Land Disputes Settlement Act.  

11.	The parties shall bear their own costs of and incidental to these proceedings.
 
12.	Time is abridged.  

Judgment and orders accordingly.

____________________________________________________________
Dowa & Piam: Lawyers for the Plaintiffs			
Niuage: Lawyers for the First Defendants	
Ashurst PNG: Lawyers for the Second Defendant