Daniel v Chapau [2007] PGLLC 7; DC572 (23 May 2007)

DC572

PAPUA NEW GUINEA
[IN THE LOCAL LAND COURT OF JUSTICE]

LLC 04 OF 2007

BETWEEN

JACK DANIEL
First Applicant

PIDIAS PUCHUN
Second Applicant

FRANCIS NOHUWAN
Third Applicant

PETER PAPAI
Fourth Applicant

AND

JOHN CHAPAU
First Respondent

BARNABAS POSELIAU
Second Respondent

Lorengau: G. Madu
2007: 23 May 2007

REASONS ON JUDGEMENT

G. Madu : The applicants by way of Notice of Motion are seeking restraining orders against the respondents:

The brief facts are that the applicants Jack Daniel and Pidias Puchun are both Community Leaders of Hawaii Island and have the support of the three (3) major clan leaders and the community.

The respondents are John Chapau and Barnabas Poseliau who are both members of the Hawaii Island and are claiming to be the sole owners of the Hawaii Reef.

The applicants are seeking the following orders:-

1. The first respondent John Chapau, his family members, associates or agents to cease from harvesting marine resources of commercial value from Pidemul, Nitombui and Selli without the consent of the community, inclusive of all major clan representatives.

2. The second respondent Barnabas Poseliau, his family, associates or

agents cease from harvesting marine resources of commercial value from Pidemul, Nitombui and Selli without the consent of the community, inclusive of all the major clan representatives.

3. The first and second respondents up hold the intention and spirit of being the Hawaian Islanders to keep their only marine resources for its community, inclusive of all the clan members on the Hawaii Island.

4. The Honourable Court declares and reaffirm that Hawaii Island reef belongs to inhabitants of the Hawaii Community of Hawaii Island and do not belong to one person or clan.

The brief fact is that the record shows that the dispute over the reef between Selli to Nitombui is between Pityluh and Hawaii. The decision of Local Land Court was then appealed. The Appeal Court on 22 May 1987 quashed the decision of the Local Land Court and remitted to the Local Land Court for re-hearing.

As I perused the file it is very clear that there has never been any dispute with any other clan or individual from Hawaii Island.

From records the first respondent John Chapau has been a spokesman for Hawaii Island. He has now decided to turn against the community of Hawaii.

The applicants contends that all the mediations, Court of Native Affairs, Local Land Court and Provincial Land Court all have given the direction in the respective Courts that the reef demarcated from Selli reef to Nitombui reef belongs to the Hawaii and their community.

And further where there is a communal property or resources there must be communal conscience as to its use or its exploitation. Where there is no communal conscience then there would be a breach of other persons right to resources denied by the persons who do not obtain the consent of the whole members of the community.

In this instant case, the respondents have decided that they are the sole owners of the reefs.

Having perused the file, the dispute between the Hawaii Community and John Chapau and Barnabas Poseliau has not been registered except between DREL Group of Pityluh Island and POSALIO Group of Hawaii Island.

Since the action of the two individual is affecting the community way of life and their actions are in contravention of the intention and spirit of being the Hawaii Islanders to keep their only marine resources for its community, inclusive of all the clan members on the island and grant the orders sought.

I make the following orders:-

(1) Both first respondent and second respondents and their family members, associates and agents are ordered to cease from harvesting sea shell, trochus or bech der mer from Hawaii reef from Pidemul, Nitombui and Selli well without the consent of the whole community of Hawaii inclusive of all the major clan representatives.

(2) The both first and second respondents uphold the intention and spirit of being the Hawaiian Islanders to keep their own marine resources for its community inclusive of all the clan representatives living on the Hawaii Island.

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Applicants: In Person
Respondents: In Person