Wera Clan v Ilam Clan [2006] PGLLC 5; DC1015 (15 July 2006)

DC1015

PAPUA NEW GUINEA
IN THE LOCAL LAND COURT OF JUSTICE

LLCr 05 OF 2005

BETWEEN

WERA CLAN

AND

ILAM CLAN

Lihir, NIP: S. LAVUTUL

Mediators: AMU .H, & RAPIS.S

2006: June, 06, 07, July 15

CUSTOMARY LAND DISPUTE – Customary Ownership of land, Presumption of Vesting of Interest. Lihir as matrilineal society in respect to customary ownership of land.

Cases Cited
Ambra Nii on behalf of himself and other members of the Toisap Clan [1991] PNGLR 357/N1007

References
Land Dispute Settlement Act, s 67, s 68
Local Customs and Practices of the Lihir People

Appearance
Anton Anap – Spokesman, Wera Clan
Peter Asika – Spokesman, Ilam Clan (Now deceased)

DETERMINATION OF CUSTOMARY OWNERSHIP TO LAND.

28th November 2008

The Land Court; The matter came before us after attempts at mediation failed to resolve the dispute. The Land the subject of the dispute is Komias situated at Matakues village, Lihir Island, Namatanai District, New Ireland Province.

ISSUE

2. Whether either party has standing by custom to claim customary ownership of the said Komias Land

LAW

3. Section 67. Presumption of vesting of interests

(1) Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years with out the permission, agreement or approval of any other person sets up the presumption that that interest is vested in the first- mentioned party.

(2) Where a presumption is set up under Subsection (1), it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.

4. Section 68. Determination of Custom

(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court the Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.

(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.

LOCAL CUSTOM

5. The following are four prerequisites on how land is acquired, and/or inherited on Lihir under its customary land tenure system:

(a).Land Acquired by Birth

6. Prior to going into the evidence we wish to mention from the start that Lihir is a matrilineal society, where land rights are vested in women and their off springs. Land passes on within the clan through birth. All customary land rights and any manner of disposal of land either by sale, transfer of ownership to another clan group or individual and in exchange for their land for another piece of land is totally at the prerogative and consent of all the clan members and not any individual member, even if you are the clan leader. A clan leader is only a custodian of all the land that is own by the clan, he cannot dispose off land to his children or any other person(s), unless the clan consents to such.

(b). Land Acquired by or After the Performance of a Customary Feast In Fulfillment of a Customary Obligation(s).

7. There are also instances where a person(s) or a clan may acquire land through the fulfillment of a certain customary obligation(s) through the performance of customary funeral feastings, or play a part in a certain customary funeral feastings may qualify him or the clan to acquire land from the deceased person and his clan. According to Lihir custom a clan or a member of a clan may hosts the following category of feastings, ararum, papeke and tutunkanut in its preceding order.

8. According to Lihir custom any person or any clan wanting to acquire and inherit land belonging to a deceased person will have to perform all three categories of feastings in order to fully qualify him or the clan to claim customary ownership of the land. Such may occur when the deceased owner is the last surviving member of a certain clan. In the event that he dies his children or any other person closely associated to him may perform the above manner of feastings prior to and upon his death. Again the clan must give its absolute approval and recognition to such arrangement.

(c). Land acquired by the performance of Erkuetz (Hanging by the Rope of the Wife of a Dying husband/deceased husband)

9. In this instance prior to colonization and Christianity in the event that a man dies his wife/widow will be hung in order that she’ll be buried together with her husband upon his wishes. Her own relatives will perform the hanging in order to cause her death. In return her husband’s clan members will give away to her clan members a portion of their land of their choice. The portion of land cannot be return to its original owners unless they perform Erkuetz. Land acquired by Erkuetz is never reclaimed by any other means except by Erkuetz or hanging.

(d). Land acquired by Payment of Cash, Shell money or in Kind.

10. There are instances where customary land is sold off to individuals or other clan groups by its original owners. The payment of cash or shell monies extinguishes their rights as to customary ownership to land. However the clan members must consent fully to such arrangement.

Significant Land Marks

11. Generally, there are important landmarks, which the clan(s) may rely on in their claim for customary ownership over land, that is any remnant of early settlement, ceremonial huts (haus boi), old/ancient trees and burial grounds/cemeteries, sacred sites, clan’s genealogy (family tree), and other physical evidence available to either party.

12. We should also bear in mind that almost 100% of all customary ownership to land is not documented, but are in the mind and heart of the clan members as passed down from generation to generation. (Hearsay). Fortunately strict rules of evidence do not apply in Land Court proceedings.

13. In the matter before us both parties were given a fair opportunity to prepare and present their case and call witnesses of their choice. The Court also had the opportunity to walk and inspect the boundaries with the assistance and under the directions of both parties. We also had the opportunity to have the Lihir Gold Limited Company Surveyor to plot the boundaries for the parties in which proper maps were drawn up for their purposes and our purposes as well, based on the GPS readings. Both clans were given the opportunity to indicate their boundaries based on their local knowledge. This map will now be used to support our findings and held as future reference for the parties.

EVIDENCE

WERA CLAN

14. Mr. Anton Anap as the spokesman for the Wera Clan claims he comes from Lipuko village Lihir Island. He hails from the Masnawo Clan. He claims to have known the spokesman for the Ilam clan as Peter Azika. Peter hails from the Ilam clan and resides at Matakues village.

15. Mr. Anap stated from his understanding as a member of the Wera Clan and the Masnawo clan under the elders of Masnawo clan and Wera clan, both clans has stood together and perform customary feastings over their elders from generation to generation until today.

16. Mr.Anap claims that is why the Land Komias as he knows the stories surrounding the land have been under his uncles until today. And he stated from the time he was born, he is the son or offspring of the Ilam Clan. He added his father had pass down the stories regarding the Ilam Clan and the land the subject of the dispute. He claims his father namely Amut is a member of the Ilam Clan.

17. Mr. Anap stated the Komias Land got its name after a Sacred Spirit (Masalai) that is a large hole where water was flowing out from. Komias according to Anap means the head of a bird. According to Anton, the Komias Land was seen as not fit for inhabitation as it had undergrowth with vains and rugged rocky landscape and including the hole he had referred to earlier.

18. Mr. Anap added the elders of the Wera Clan used to be based at the beach at their "haus boi" along a big rock. He further stated after the elders found ways in order to get water, one of the Wera Clan members namely Boskopra cleared a portion of the land next to where the water was flowing out in order to get water.

19. He claimed to have resided with a lady he was married to, a member of the Ilam Clan. His wife’s name was Miltes. Boskopra and his wife Miltes only claimed the waterhole and fetch water. Mr.Anap further stated they used to do gardening where they were residing but the area next to the "haus boi" was not suitable for gardening.

20. Anap added, after that Ambiak cleared the Komias land and built a "haus boi". Ambiak did held customary feastings in the Haus Boi he had built. He performed such feasts like, ararum and papeke.

21. Moreover, when Ambiak cleared the land, built the haus boi and did custom on it nobody disputed it uptil today. Anap stated he believed the land belongs to Wera clan from long ago uptil today.

22. Upon cross examination by the spokesman for the opposing party regarding the name of the land the subject of the dispute, he stated he only knows it as Komias, as Komias referred to the hole, that’s how it got its name.

23. In support of the Wera Clan, witness Clement Ubi from Lipuko village, clarifies he comes from the Nayal clan and he is married to a woman from the Wera clan since 1972. He claims he used to go and reside with Ambiak at Komias Land. He stated Ambiak used to tell him that he cleared the land and had customary feasting on the said land. Furthermore, Clement revealed that Ambiak used to tell him about the origin over the land and about the significant land marks on the land.

24. Clement stated Ambiak told him the name of the land is Unitakun, however today the land is referred to as Komias land. He stated the name Komias initially referred to a hole at the beach front inside the same portion of land the subject of the dispute. In addition, Clement revealed in the middle of the said land there is a big gouge that runs through to the beach referred to as Matanipapa by the clan, including two caves that is located in the rocks and is referred to by the clan as, Palapalanlili and Limatokorkor.

25. Clement revealed an elder from Wera clan, namely Boskopra got married to a lady from the Ilam clan, who is related to Peter. He stated he would refer to her as his grandmother at Lataul village. Boskopra took Peter’s grandmother from Lataul village and brought her to Matakues village. Boskopra use to reside with his wife next to the caves which Clement had referred to in his evidence. Upon cross- examination Clement revealed the Boskopra he was referring to was the Boskopra from the Wera Clan and it was the elders of the Wera Clan which perform customary feastings over him after he died.

26. Further, Zikle Alfred who hails from the Tinetalgo married to a Wera lady claims he knows the land belongs to the Wera Clan. Upon cross – examination on why he had settled on Komias land, he stated he settled on Komias land because the land belongs to the Wera Clan. In addition witness Stanis Tanaber also affirmed in his evidence the land belongs to the Wera Clan as Ambiak the elder of the Wera Clan did perform a customary feast – (ararum) on the said land and nobody disputed it.

ILAM CLAN

27. On the contrary, Peter Asika the spokesman for Ilam Clan stated Komias Land belongs to his clan. He stated he is following the history as handed down by his uncles namely, Malum and Misren. He claims there was an elder of the Wera Clan that got married his grandmother namely Miltes, they then cleared the land made a garden on it.

28. He further claimed his uncle namely Siaman assisted his father to clear the land and he knows the land Komias belongs to the Ilam clan. In addition he stated there is an understanding between the Wera Clan and the Lands Demarcation Committee which surveyed and demarcated the said land under the Ilam clan. He claims the agreement was that in the event that Ambiak the elder of the Wera Clan dies the Komias land would be returned to the Ilam clan.

29. Peter stated the name Komias is not the original name of the said land, its original name was Leitakun. He claimed there weren’t any dispute until they chopped down a tree for timber on the land. He also stated sometimes later Pegesuak tried to build his house on the said land the Ilam Clan members disputed it.

30. Peter revealed they went through three (3) different mediations and in the last session in 2004 it was agreed that we pay off all their crops on the land. And until today they continuously refused to follow the terms of the agreement and erected their houses on the said land. They also defied instruction by police not to clear the said land.

31. Moreover, Peter claimed the land to be his because of the fact that they have certain land marks on the said land, a big galip tree, two caves and remnants of a ceremonial hut "(haus boi)". Peter added he hails from Matakues village and he knew the land belongs to his Ilam clan. He also disputed the persons that appeared in court on behalf of the Wera clan, the person which supposed to have appeared is Francis Atiah of Lataul village and not from Matakues.

32. Peter claimed the Wera Clan of Matakues had the last two elders namely Inabung and Mati in which they took part in their customary feastings.

33. In support of the Ilam Clan, Michael Arum of the Tilkuan Clan of Matakues village claimed the land the subject of the dispute belongs to the Ilam Clan. He claimed they had four significant land marks on the said land, a haus boi, a galip tree, a cave. Upon cross examination he stated the name Komias refers to the evil spirit or masalai that lived on the said land.

34. Mr. Terence Asika the second witness of the Ilam Clan, also a member of the Ilam Clan only appeared to reaffirm what Peter Asika had told the court earlier that the land belongs to the Ilam Clan and they have land marks that affirm their claim of ownership.

35. Finally, witnesses Jerome Asika and Alois Misren are both members of the Ilam Clan also claimed the said land to be theirs. Jerome Asika claimed there is a "haus boi" (ceremonial hut), stone walls and a galip tree belonging to their elder Kokou. Upon cross – examination Jerome revealed the Haus Boi is located outside of the Komias land.

36. Witness Alois Misren claims he resides next to his uncle Malum. Malum did show him the boundaries to the Komias land. He claimed the markers to land extend to the beach. Upon cross – examination Misren revealed their "haus boi" (ceremonial hut) is located outside the said land and not inside Komias land.

FINDING OF FACTS

37. Firstly the dispute is between the Ilam and Wera Clans respectively. Spokesmen, Peter Asika and Anton Anap are from the Ilam and Wera Clans respectively. Anton Anap’s father is a member of the Ilam Clan.

38. Secondly, the land the subject of the dispute is located at Matakues village on the East Coast of Lihir Island. Komias is a small portion of land which is less than an hectare situated at the beachfront and surrounded by two other portions of land belonging to the Ilam.

39. Thirdly, from the evidence the whole area including Komias and the two other portions own by Ilam Clan is commonly known as Unitakun/Leitakun by both parties. This was clearly stated by Peter Asika and Clement Ubi a witness to the Wera Clan. The particular portion the subject of the dispute is Komias named after the water hole (Masalai) which was located on it near the beachfront.

40. There is physically found on the Komias land is a remnant of a ceremonial hut or haus boi belonging to the elder of the Wera Clan, namely Ambiak.

41. There is physical evidence of important land marks belonging to the Wera Clan, remnants of a ceremonial hut or haus boi, two caves as per described in the evidence and named as Palapalanlili and Limatokorkor according to the evidence of Clement Ubi, a witness to the Wera clan.

42. From the evidence the court found that the said portion of land has been inhabited by the elders of the Wera clan namely Boskopra and Ambiak prior to independence together with other members of the Wera clan until the dispute arose. Over a period of more than thirty (30) years.

43. Boskopra one of the elders of the Wera clan was married to Miltes a member of the Ilam clan of Lataul village and they resided on the said land.

44. From the evidence the court found that the elders of the Wera clan did not only settled on Komias but they also performed and held customary feastings on the said land over the years.

45. On the contrary, the court found no evidence of any physical landmarks of the Ilam clan inside the portion of land the subject of the dispute. However the court found remnants of a ceremonial hut (haus boi) including a stone wall and a cave belonging to the elders of the Ilam clan outside the Komias land.

46. We found there are two portions of land belong to the Ilam clan, which are boundarying the said Komias land.

47. Lastly both parties failed to provide the court with their respective genealogies or family trees.

DECLARATION OF OWNERSHIP

48. Based on the above finding of facts we declare that the customary ownership of the said Komias land is vested in Anton Anap and his Wera Clan and none other.

REASONS

49. We unanimously agreed to award customary ownership of the said Komias land to Anton Anap and his Wera Clan for the following reasons;

50. Firstly, Section 67(1) & (2) of the Land Dispute Settlement Act stipulates,

(1).Notwithstanding any other law, proof that a party to a dispute has exercised an interest over the land the subject of the dispute for not less than 12 years without the permission, agreement or approval of any other person sets up the presumption that that interest is vested in the first- mentioned party.

(2).Where a presumption is set up under Subsection (1); it may be rebutted only by evidence leading to clear proof that the interest is vested in some other person.

51. From reading Section 67(1), it is clearer that a party to a dispute must prove that it has exercised an interest over the land the subject of the dispute for not less than 12 years, without the permission, agreement or approval of any person.

52. Similarly, reading Section 67(1) into the evidence and findings before us the Wera clan through their elders Boskopra and Ambiak has had vested interests over the Komias land for over an estimated 20 to 30 years, which certainly in our view sets up the presumption that that interest is vested in the Wera clan and none other.

53. These interests is basically referring to their houses including their haus boi and other structures, trees crops, fruit trees, and the period and nature of occupancy and all other activities performed/carried out on the said land up till they encountered this dispute. In addition during the time of elders Ambiak and Boskopra nobody from either the Ilam Clan or any other clan disputed them over the Komias land.

54. However Section 67(2) above literally means where there is a presumption set up under Section 67(1), the requirement is for the party challenging ownership to sufficiently lead evidence to rebut the claim and established that that interest is vested in some other person (or in them) other than the first-mentioned party.

55. In the similar sense the Ilam Clan’s claim should have been sufficiently supported by evidence in order to rebut the evidence of the Wera Clan. In our collective view the evidence brought by the Ilam Clan cannot stand against that of the Wera Clan in light of the requirements of Section 67 of the Land Dispute Settlement Act.

56. Secondly, Section 68 of the Land Dispute Settlement Act stipulates; Determination of Custom

Section 68.

(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court the Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.

(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.

57. In observing Section 68 of the LDSA, we fully considered all the relevant customs of the Lihir people under their traditional land tenure system. We place our emphases on the facts that the two elders of the Wera clan did not only reside on the land but did have a ceremonial hut/haus boi erected and performed customary feastings on the land over time without objection from either the Ilam clan or any other person.

58. It is against Lihir custom for members of another clan to erect their ceremonial hut/haus boi and bury their dead on another clans’ land. It’s a shameful thing to be buried under someone else’s ceremonial hut/haus boi. It is reasonably clear that the Wera clan customarily owned the said Komias land that is why their elders had erected a ceremonial hut/haus boi and held customary feasts on the land without any objections from the earlier elders of the Ilam clan.

60. It is also important to observe that a ceremonial hut/haus boi and a sacred spirit/masalai depict the origins or roots of a particular clan and its customary attachment to that particular piece of land. Such as is the case in the matter before us and such obviously amount to ownership.

61. Any court doing substantial justice would not overlook the above customary qualifications and award customary ownership to the opposing party.

62. Finally, in our collective view we agreed that the Wera Clan is qualified by custom to hold customary ownership to the Komias Land based on the reasons and findings perused.