Hides Gas Project Land, Re [1993] PNGLR 309 (25 July 1991)

IN THE MATTER OF AN ORDER BY THE GOVERNOR-GENERAL ACTING ON ADVICE OF THE NATIONAL EXECUTIVE COUNCIL, UNDER SECTION 4(3) OF THE LAND DISPUTES SETTLEMENT ACT, IN RESPECT OF A DISPUTE OVER LAND DELINEATED IN PORTIONS 150C TO 163C (INCL.) IN THE MILINCH OF KARIUS (SE) KNOWN GENERALLY AS THE HIDES GAS PROJECT

IN THE MATTER OF AN APPLICATION BY THE MINISTER FOR LANDS UNDER SECTION 74 OF THE LAND ACT IN RESPECT OF PORTIONS 159C TO 163C (INCL.) MILINCH OF KARIUS (SE) KNOWN AS HIDES GAS PROJECT

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CUSTOMARY LAW - Title to land - Jurisdiction of land court - Special jurisdiction of Land Titles Commission.

REAL PROPERTY - Title to land - Adverse possession - Effect on title - Ownership of land - Proof at customary law - Principles in the determination of ownership of land.

A series of land disputes arose over the ownership of land within Hides Gasfield Project. The disputes were aggravated by the discovery of gas in the area and the payment of substantial sums by the developer. The Governor-General, acting on the advice of the National Executive Council, referred the matter for resolution under the Land Titles Commission Act. A judge of the National Court was appointed Land Titles Commissioner.

The respondent clans relied on their genealogy and traditional evidence as well as their occupation of the land at the date of the dispute whilst the complainant clans claimed as original owners and established this by ancestral genealogy and traditional evidence. The question addressed by his Honour was whether genealogy and ancestral evidence is conclusive of ownership in modern times.

1. Genealogical ancestral history and the supportive landmark descriptions by names are not conclusive evidence of title.

2. In determining ownership of customary land regard must be had to numerous other intervening factors between the past and present time. These include adverse possession.

RD Cooter, Issues in Customary Land Law (Port Moresby: INA, Discussion Paper No 39, 1989).

The principles set out in this judgment have been adopted in a number of decisions of both the National Court and Land Courts. The editors are of the view that it is authoritative on the underlying law and should be published. The Supreme Court held in Re Goilanai No 2 [1976] PNGLR 120 that, where traditional accounts of land ownership varied, they must be tested against the evidence of recent and past occupation.

AMET J: Commissioner. These are a series of land ownership disputes in relation to portions of land in the vicinity of Mt Tumbudu and Kuru village in the Tari District of the Southern Highlands Province, otherwise commonly known as the Hides Gasfield Project. Legal proceedings had been instituted by one of the disputing parties under the Land Disputes Settlement Act Ch 46 in the Local Land Court in Tari.

The Head of State, acting on the advice of the National Executive Council, was of the opinion that special circumstances existed that required the dispute to be settled under the Land Titles Commission Act. His Excellency the Governor-General, declared by notice in the National Gazette that the Land Disputes Settlement Act did not apply and further, by virtue of s 4(3) of the same Act, ordered that the Land Titles Commission Act would apply and directed that a Commissioner be appointed to determine the ownership of the lands, the subject of the land dispute.

I was appointed by the Head of State, acting upon advice, as a Commissioner under the Land Titles Commission Act, with all the jurisdiction and powers of a Land Titles Commissioner. My appointment was by instrument published in the National Gazette.

I conducted public hearings in the Tari District Court, by receiving both oral and documentary evidence.

I inspected the whole project land, both by air and on the ground. I was able to do an aerial inspection of the total project area and some of the specific landmarks, such as the well-heads, various river boundaries, the Girebo River source where the pipelines were to traverse, the Nogoli-Kuri road, the various villages, the plant site, the campsite, and the base camp. This was made possible by courtesy of the developers, British Petroleum, making available a helicopter. This was in the middle of the hearings.

At the conclusion of the evidence, I informed the disputing parties of my intention to inspect the land on the ground. They were not able to agree that there would be no trouble between them at the sites. Whilst the defendants were prepared to give me this assurance, the complainants were not able to. Consequently, I advised that I would simply visit - which I did by road - only to Kuru village, down to the plant site, and to the campsite.

It was not possible to do any more than drive along the main road. The land area was so large and terrain so thick and rugged that walking to inspect all the landmarks given evidence of would have taken weeks or months. I was fortunate to have been enabled to get a good overview of the land in dispute by air.

I chose not to attempt to inspect and or verify any of either party's evidence of landmarks supporting their claim to ownership, such as caves, ancestral grave sites, plants and trees, drains, and home sites. I will deal with the effect of these shortly.

The precise portions of land, the center of the dispute, include all the land now under development at the time of hearing. They are easily described in the following way:

1. The main project road from the Tari-Komo road into the main campsite, then to the plant site and Kuru village.

All of these portions of land had been surveyed and work carried out on them in various stages, continuing with some interruption by parties to the disputes from time to time.

The parties disputing the different portions of land are diverse, but essentially the defendants involve those clans that have been identified as presently occupying the land and the complainants as being clans of the Tuguba Tribe now living in Komo.

The clans who are defendants were originally identified by land investigation patrols sent out by the Department of Southern Highlands Province, Local Government and District Services Branch, as the clans presently occupying and using the land. These were confirmed by evidence from representatives of the clans.

The defendant clans occupying the disputed land were identified as the owners of the land, and the State and the developers, British Petroleum, began to deal with them for the purposes of the various agreements that were necessary as well as the immediate payments of compensation for destruction of food crops and vegetation. These dealings brought about the dispute from the various clans of the Tuguba Tribe of Komo, who have claimed that they are the true and rightful original owners by custom.

The central thrust of the case for the complaint Tuguba Tribe clans, placing very strong reliance upon their genealogy, was that they were the original discoverers of the land in dispute and, although they were not actually physically residing on the land, nevertheless, the boundaries of mountains, rivers, streams, other landmarks and ancestral grave sites, all named by and after the Tuguba Tribal ancestors, point conclusively to the fact that the Tugubas were the first inhabitants of the land and, thereby, are the true owners by custom.

The Tugubas have described their genealogy as going back some 16 generations to the origin of man in the Tari-Komo District and, indeed, the Southern Highlands and part of Enga Province. They described numerous boundary landmarks of rivers by name, hills and mountain ranges by name, and other place names as indicative of the Tuguba Tribe as the original discoverer of the land and places concerned.

All of the competing claimants described their respective ancestral genealogies. I do not propose to restate any of them in any form in this decision, for the simple reason that to do so would be totally superfluous. None of the parties seriously disputed the contention of the other as to their respective genealogies, and I certainly am in no wise position to reject or disbelieve any of their assertions. The various charts speak for themselves, amply supported by oral testimony.

It is truly remarkable that generations and generations of ancestors could be so clearly remembered by name, going back to their believed origin and founding ancestors.

The Tuguba Tribe, particularly, described mountain ranges, rivers, streams and lakes, valleys and caves by names, which it said proved that the Tuguba Tribe ancestors were the first men to set foot on the land. The Tuguba Tribe described names which are today identified with the Tuguba Tribe and clans.

I accept that the disputing clans had placed considerable importance on their ancestral genealogies as supporting their claim of ownership or legitimate occupation of the land. The Tuguba Tribe, in particular those who are presently generally resident in Komo, pressed their claim to ownership largely on the basis of their genealogy and its significance to identification of landmarks such as mountain ranges, rivers, and lakes.

The respondent clans, from the Hiwa Tribe, also relied on their genealogy and the significance of their influence in the language of the area. They are known as the Huli people. The main language now spoken is Huli. The famous wigs are from the Huli people. The style of house is derived from the Huli people. The Hiwa contended, generally, that this suggests they were also the original inhabitants of the land now under dispute. They, too, relied on comparable length of ancestral genealogy going back 16 generations.

I accept the importance attached to names. It is an almost universal custom to associate names of people, places, and landmarks with certain groups of people. For instance, one is able to generally accurately identify the place of origin of a person by his name, or the name given to a place can be attributed to its discovery by the person of that name. National and international examples are the city of Port Moresby, named after Captain Moresby, Jackson's Airport in Port Moresby, Kingsford-Smith Airport in Sydney, Australia, and the Cook Islands, named after the respective pioneers.

Whilst I have acknowledged the importance of considerable evidence of named landmarks, I did not, nor did I think it necessary to do a detailed inspection of the boundaries and the land in dispute to verify the various landmarks that were described.

Whilst genealogy of ancestral origin might well have, in the past, been conclusive evidence of ownership, I am of the view that it is not the only evidence that is to be relied upon to confirm ownership at the present time. I believe that with fast development and considerable movement of tribes and clans and people from one region to another, factors which ought to be taken into account in determining ownership in the present context ought to be modified and more fluid than the traditional methods of determining ownership. In this context, therefore, it would be of little valid significance to rely solely on genealogical oral history that traces man's origin back thousands of years. That is one factor only amongst others in the total circumstances in which the land dispute arises.

And so, whilst I respect and have accepted fully all that each of the competing parties have described in relation to their respective genealogies of their ancestral origins, and because I am not able to refute nor decide as to which is the more correct and which is superior to the other, I accept them all as being relatively valid as far as they go. As I have indicated already, the various charts supported by the oral evidence are sufficiently confirmatory of these genealogies.

As I have said, it is not sufficient to rely upon genealogical ancestral history and the supportive landmark descriptions by name as being conclusive evidence of ownership. If that oral history traces the origin of a particular tribe or a people back thousands of years or hundreds of years without taking into account many other factors since that time to the time of the dispute, it would make determination of ownership of land totally meaningless if there had been numerous other intervening factors between the origin of that group of people to what the present circumstances are. It is important to state what other factors ought to be taken into account in a changing, developing nation and land tenure system, such as is happening in Papua New Guinea at the present time. In my view, as a matter of principle, the tribunal determining disputes of this nature, such as land mediation tribunals, local and district land courts and, finally, superior judicial tribunals such as the courts and the Land Titles Commission, ought to begin to develop a system of determining ownership of land which takes into account both the traditional values and methods of determining ownership as well as the developmental aspirations and interests of a wider provincial and national community to arrive at principles which will be uniformly utilised and applied, consistent with the Constitution's directive to develop a consistent and coherent system of indigenous jurisprudence. This means that the very traditional and ancestral methods and values are not to be exclusively relied on, but to take them into account together with what are required of the modern developmental interests of the local people as well as the provincial and national governments on behalf of the people of the nation as a whole.

For instance, the Tuguba Tribe have described their ancestral genealogy as going back some 16 generations, which in their estimation of an average life expectancy of 45 to 55 years, works out to a total period of between 600 to 700 years. And so, as I have said, it would not be proper to determine ownership on the length of ancestral genealogy alone if there have been many other intervening factors up until the present time of dispute.

The Hiwas, who are presently occupying many of the portions of land in dispute, have also similarly described their ancestral genealogies to extend back some 16 generations. They also contend that they had been living on the whole area of the land and had come onto the land when it was vacant. They assert a superior claim to ownership by the fact of their physical occupation and control over the use of the land at the present time.

I restate the present factual circumstances surrounding the dispute, that the respondent Hiwa clans are the incumbent residents on the land who had been identified in a quasi-census land investigation concluded by investigation teams sent by the Southern Highlands Provincial Government to ascertain a census of people living on the land and to determine ownership of the purposes of compensation and other legal transactions between the land owners, the developers, and the National Government. The complainant, disputing Tuguba Tribe are generally resident in the Komo area of the province. One of the clans of the Tuguba Tribe, however, has been resident also on part of the project land in dispute, being the Ware clan. They are the principal disputants with the Kopiye clan of the Hiwa's over part of the land in dispute.

I accept also that, since the commencement of exploration in the area by British Petroleum and the mining of gravel at the quarry and logging work by various developers, the principal recipients of interests from compensation monies for the gravel and the cutting of timber have been the Kopiyers as well as the Wares, who have been residents on part of the land now in dispute. The rest of the land along the main project road to Kuru village and up into the range of mountains to the well heads and down along the ranges to the Gerebo River source was not the subject of any such developmental interest until very recently. Up until discovery of gas and the need to identify rightful land owners for the purposes of compensation of vegetation destroyed, there has not been any evidence of any major disputes. There has been reference to some tribal fighting over land, but I am not satisfied as to when that was nor in relation to what specific portions of land. The state of affairs, in my conclusion, is that prior to any need to determine ownership for the purposes of compensation for vegetation destroyed, for the purposes of laying pipes and easements, there had been no real dispute as to ownership. I believe that the Tuguba people who were and are living in the Komo area had accepted the Hiwa people's possessory right to occupy and to use the portions of land now in dispute, for all practical purposes, as owners.

I do accept that there have been some land disputes mediated upon in recent years, some evidence of which has been given, but I am satisfied, without any conflicting evidence, that they have been as a result of developmental interest on the land.

This has been the first occasion on which such a Commission has been established to determine ownership, taking jurisdiction away from the Land Disputes Settlement Act and vesting it in the Lands Titles Commission, with the appointment of a judge to preside as the Commissioner. And so it gives me the opportunity to state in the original decision, subject to subsequent appeal processes hereafter, some principles that time has enabled me to consider and arrive at. Several anthropological studies and text books on the people in this area, commonly described as Huli, were referred to me, but time has not permitted a full study of those publications, nor did I find them necessary to study. But I have found one small publication of some interest and relevance, which was the Institute of National Affairs (INA) Discussion Paper No 39. This is a report by a Professor R. D. Cooter, who was sponsored by the institute to investigate customary land ownership in Papua New Guinea in 1988. His report is entitled "Issues in Customary Land Law". I found the essay on ownership to be quite interesting and informative because I, of course, did not have the same amount of time to study or research my specific case studies. Professor Cooter analyses customary land law and its implications for public policy, studying cases in local, district and provincial land courts and drawing principles of customary law from those. He wrote: "The problem is not to declare what people know but to discover what is implicit in what they do. Melanesian legal principles are to be discovered while deciding cases in customary law, which can only be done by courts, not Parliament". I restate, hereunder, some of the principles that are derived by Professor Cooter from the cases he studied:

A group that resides upon or improves land for a sufficient time without the permission or active opposition from others thereby owns it. A group that uses land for a sufficiently long period of time without the permission or active opposition from others, but does not reside upon or improve it, thereby acquires a use right in it.

Land can only be said to "belong" to a group when it is shown that either neighbouring groups acknowledge their claim by not challenging it or, by their ability to occupy and use the land, and to stop others from doing likewise, they show that they exercise controlling interests over it.

If land is not used for successive generations, the claim of those furthest removed from those who vacated it becomes, as the years pass, of diminishing importance.

An interest in land is maintained by building houses and settling on it and by gardening, grazing or burning it off, collecting from it, or forbidding others to occupy and use it.

Once a group has abandoned its ancestral land by cutting all ties and associations with it, they cannot return and claim it at a much later date without the agreement of those who, prior to that date, have assumed controlling rights to it.

Ownership implies the power, whether exercised or latent, to occupy and use land, and to stop others from doing so.

In customary land disputes, the party shall prevail whose case is supported by the preponderance of the evidence.

The extent to which people attempting to return to the land of their ancestors are opposed is largely dependent upon the extent to which their land has been taken over and used by others, and the extent to which they have been able to forge a friendly relationship with those now in control of it."

I have simply restated some of these principles as being relevant in the consideration of these disputes. They are not authoritative because they have been deduced from specific case studies, but I find them useful in their circumstances, with modification and variations as are relevant.

I have also alluded very briefly and generally to some constitutional principles of the development of an indigenous underlying law. These are generally contained in the Preamble and the National Goals and Directive Principles of the Constitution. It is not necessary, of course, to refer to them in any depth nor to endeavour to interpret and apply any specific provision. It is sufficient simply to state that, whilst the Constitution does recognise use of our customary values and rules and methods of resolving disputes, it also recognises the need for development of new values and principles, as might be appropriate to new circumstances, by borrowing from both the traditional and customary and from the modern nation state, to shape and fashion rules of law and principles that will be equally applicable universally, throughout the nation.

The clans identified by the land investigation patrols as having physical presence and occupation of these portions of land were the Kopiye and the Ware. The Ware are a clan of the Tuguba Tribe. They are the only Tuguba clan having some presence. They dispute portions of the road access from the main Tari-Komo road into the campsite, the campsite, and the water line easement.

The Yugu and Tuguba Pate clans of Komo have joined with the Ware in disputing the Kopiye's right to possession and ownership over these portions of land, by relying generally on ancestral genealogies.

There is some controversy and considerable inconsistency in evidence as to how it is said the Kopiye came to be on the land. Some complainants claimed it was very recently, as little as five years ago from 1986. Others have said six to seven generations. Whatever the truth be, there is evidence that the Wares and the Kopiyes have been living together for many generations, sharing the use of the land and the benefit derived from it in the form of compensation for the quarry gravel and harvesting of timber.

I make specific reference to and rely on the following basic principles I extrapolated from Professor Cooter's report. I find these apply to the circumstances of the disputes before me. They are:

A group that resides upon or occupies and improves land for a sufficient period of time without active opposition from others thereby established a legitimate claim to ownership of it.

2. A group can be said to "own" the land by its ability to occupy and use the land and to stop others from doing so likewise, thereby showing that it exercises controlling interests over the land.

An interest in land is maintained by building houses and settling on it and by gardening, cutting and burning it off, hunting and collecting from it, or forbidding others from occupying and using it.

Once a group has abandoned its ancestral land by cutting all ties and associations with it, the group cannot return and claim it at a much later date without the agreement of those who prior to that date have assumed controlling rights to it.

Ownership implies the power, whether exercised or latent, to occupy and use land and to stop others from doing so."

Applying all of these principles to the factual circumstances of these disputes, which principally involve the Tuguba Tribe on the one side and the Hiwa Tribe clans on the other, the overwhelming preponderance of evidence and equity weigh towards the incumbent occupants against those who are not in physical occupation of the land, except the Ware. All of these principles weigh in favour of the Kopiye against the Yugu Tuguba Pate and Ware in respect of the campsite and water line easement. In respect of all the other land, they weigh in favour of all Hiwa clans who are on the land against all the complainant Tuguba Tribe clans.

I make the following finding of ownership in relation to each portion of disputed land:

3. Road access from Nogoli to plant site and Kuru village: the five clans who are the present occupants:

(a) Kopiye clan owning 1.09 ha shown on Cat. No. 10/346 Portion 163.C.(A) Inst.No.06/184.

(b) Ware clan owning 1.99 ha shown on both Cat. No.10/346 Portion 163.C.(B) Inst. No. 06/184.

(d) Arua clan owning 0.85 ha. shown on Cat. No. 10/347 Portion 163 C. (D) Inst. No. 06/184.

(e) Pina clan owning 4.39 ha shown on both Cat. No. 10/347 Portion 163 C. (E) Inst. No. 06/184.

In the end result, the decision has been in favour of the clans who are in physical occupation of the land, supported considerably by the principles I have relied on above, as supported by the evidence of "sufficient" period of time in occupation.

I adopt all the survey boundaries and descriptions documented in the Department of Southern Highlands land investigation reports.

One additional matter I make mention of in these kinds of disputes is the need for some stability, consistency, and certainty of decision making as to ownership of land and natural resources for the purposes of harvesting, exploitation, and development of the same in the long term national interest. To this end, then, the decisions of conflict-resolving tribunals need to be based on principles that are fashioned on facts and circumstances which are relatively current and recent, and not too ancient. If Papua New Guinea society is to progress, it must be prepared to embrace some modern values as well as relying on some that are traditional.

The complainant Tugu and Tuguba Tribes have made applications for costs of prosecuting their complaints. I do not propose to make any order as to costs. They are inappropriate in this kind of commission.

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Papua New Guinea Law Reports

Hides Gas Project Land, Re [1993] PNGLR 309 (25 July 1991)

PNG Law Reports 1993