Unawos Clan v Tiengawom Clan [2008] PGLLC 6; DC4063 (17 September 2008)

DC4063

PAPUA NEW GUINEA

[IN THE LOCAL LAND COURT OF JUSTICE]

LLCr. O3 of 2008

BETWEEN

Unawos Clan

AND

Tiengawom Clan

Lihir: S.Lavutul

Mediators:

A. Bosle

A. Hanburuk

2008: 17^th September

CUSTOMARY LAND DISPUTE – Land Dispute Settlement Act –Section 67, Section 68 – Customary Ownership of Land. Lihir as a Matrilineal Society in Respect to Land.

Cases Cited

1. Application N90/101 in the matter of Hides Gas Project Land
2. Application of 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.

Representation

Felix Nionios –Spokesman Unawos Clan

Peter Tukiah – Spokesman Tiengawom Clan

DETERMINATION OF OWNERSHIP AS TO CUSTOMARY LAND

25^th February 2009

The Local Land Court, This matter came before us after all attempts at mediation failed to amicably settle the dispute as to customary ownership over Lipuslat land.

2. The Land the subject of the dispute is Lipuslat Land and is also referred to as Block # 361 along the Kunaye- Airport road.

ISSUES:

3. Whether either party has standing by custom to claim customary ownership of the said Lipuslat land.

4. What are the respective clan’s physical interests on the said land?

LAW

5. 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.

6. Section 68 of the Land Dispute Settlement Act - Determination of Custom
(1). Subject to this section, in all matters before a Provincial Land Court or a Local Land 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

7. The following are instances how land is acquired, and/or inherited in Lihir under its customary land tenure system:

(a).Land Acquired by Birth

8. 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 by 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/or 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 of 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).

9. There are also instances where a person(s) or a clan may acquire land through the fulfillment of 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.

10. 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).

11. 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 her husband’s wish or request. 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.

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

12. 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.

(e) Significant Land Marks

13. 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 (masalai), clan’s genealogy (family tree), and other physical evidence available to either party.

14. We bear in mind that about nearly 100% of all customary ownership to land on Lihir 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.

15. In the matter before us both parties here were given a fair opportunity to prepare and present their case and called 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 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 references for the parties.

EVIDENCE

UNAWOS CLAN

16. Spokesman, Felix Nionios of Kunaye No.1 village, Lihir Island claimed Lipuslat land to be theirs (Unawos Clan). He claims to be following the Unawos Clan in order to claim the land.

17. He claims to have got its boundaries starting at Lisolik hamlet at the beach. He claims they are following the boundaries from Kunaye No.1 village to Zuen village, in that they share a common boundary with the Nissal Clan.

18. In addition, Nionios stated their other boundary line follows the Lakanbut from the beach into the hinterlands and whilst at this point they share a common boundary with the Tinetalgo Clan. He claims Lipuslat is within this common boundary.

19. Felix Nionios claims, the Lipuslat Land to be his because they have a hamlet at Kul. This hamlet is referred to as ANAZINU.

20. He further claims his land mark is a haus boi/ceremonial hut located at Lisolik hamlet at Kunaye No.1 village and at Kul there is a stone there which resembles the remnant of a haus boi/ceremonial hut.

21. Felix stated his elders namely, Yesyes, Bolo and Klam all resided at Lisolik hamlet, Kunaye No. 1, whilst Mis resided at Kul.

22. Felix claims their first generation was Yesyes and he performed custom over their great grandfathers and elders. Whilst their second generation after Yesyes was Tangir and performed custom over Yesyes, their third generation was Otto Zikges and he performed custom over Tangir.

23. He further claimed that is why he claimed the land at Lipuslat is his land following his place of origin at Lisolik and came up cross the airport at Lipuslat and connects the boundary at Kul.

24. Felix stated the land at Lipuslat was grassland, there weren’t any hamlet located on it. There weren’t any haus boi/ceremonial hut located on it. The block of land is located in between the Unawos Clan land boundaries.

25. Felix stated long ago Yembek an elder of the Tiengawom Clan did clear the Lipuslat land and did gardening on the land. He did not cut the land for any other reason.

26. Felix claimed Yembek did ask his father namely, Tombual an elder of the Tinetalgo Clan, Tombual granted him permission to clear the land and do gardening on the land. He claimed Tombual granted him permission knowing the land belongs to his father Yesyes. That is why Felix claimed the land belong to the Unawos Clan and within their boundary.

27. Upon cross examination on who was the mother of Yesyes and Bolo, Felix replied he does not know who their mother was.

28. Upon further examination by the court on where Yembek’s mother had originate from; Felix replied he did not where she originated from.

29. Joe Rumut of the Tinetalgo Clan claims his boundary is next to the Unawos Clan. He claims since he was achild his mother and grandfather used to tell him they had a common boundary with the Unawos Clan. Upon examination Joe revealed he was an offspring of the Unawos Clan.

30. Paul Mos of the Nissal Clan stated on behalf of the Unawos Clan he came to Kunaye from Sale village since his childhood and grew up at Kunaye and claimed to have known what had happened overtime.

31. Paul Mos claims to have a common boundary with Unawos Clan, however he went on to state that he was not sure of the land the subject of the dispute and there was no argument over the land.

32. The last and final witness to the Unawos Clan, Mr. Philip Pasap stated he is an offspring of the Unawos Clan. He stated his father use to tell him their hamlets were at Lisolik, Lakanus, and the two areas cover Lipuslat.

33. Upon examination in chief, on whether his father had told him about any other clans with same boundaries, he replied they had a common boundary with the Nissal and Tinetalgo Clan respectively.

TIENGAWOM CLAN

34. Peter Tukiah, Spokesman for the Tiengawom Clan stated he comes from the Tiengawom Clan, whilst his father is from the Katrumolam Clan and resides at Kunaye No.1 village.

35. He claims the land the subject of the dispute belongs to the Tiengawom Clan and they have a haus boi/ceremonial hut at Lisolik hamlet including a cemetery. He added they have their clan elders buried at Lisolik hamlet, Kunaye No.1 village.

36. He further stated that they also have a haus boi/ceremonial hut at Daibonbale hamlet at Kunaye No.1 village including a cemetery/burial site inside it. And he stated further in land they have another hamlet called Lepupalitz including a cemetery/burial ground inside it.

37. He added their other two hamlets are Petetakbek and Setutu where they had their own cemeteries/burial grounds found inside them.

38. Peter stated he resided with his elder Yembek at Lisolik hamlet and Yembek did perform custom over their Tiengawom Clan elders, whilst he performed custom over Yembek upon his death. He added Yembek told him the Lipuslat land belonged to them (Tiengawom Clan).

39. Moreover, Peter stated Yembek was the last elder of the Tiengawom Clan. Yembek had told him no other clans or clan members of other clans cultivated Lipuslat land except for the Tiengawom Clan members.

40. Upon cross examination, on who Yembek’s parents were, he replied he did not know who his father was but he knew his mother as Mde, and he further stated Yembek’s house was at Lepupalitz inside Lisolik hamlet.

41. He also confirmed in his reply to cross examination that the man Tombual was the son of Yesyes of the Unawos Clan and they resided at Sinaulin hamlet inland.

42. Upon further cross examination, on where did he performed customary feastings over Yembek, Peter replied he performed custom over Yembek at Lisolik hamlet, including his two children Samul and Tete who are members of the Tinetalgo clan.

43. Upon examination by the court who was cultivating the land at Lipuslat, Peter replied an elder by the name of Kopian from the Amuat clan who was the grandson of Ikine of Tiengawom Clan. He further stated he had a common boundary with the Nissal Clan.

44. In addition, upon examination on who were the Unawos clan members are following in order to lay claim to the said land, he stated they are following Lap of the Nawol, a sub-clan under Unawos Clan and married to a lady from Lekianba Clan namely, Apitle. Lap resided at Sinaulin hamlet inland.

45. Finally in his reply he stated he does not cultivate the land anymore, there are other people from Unawos and Tinetalgo clans respectively are doing gardening on the said land.

46. First witness Robert Matson from the Nissal Clan stated they have a common boundary with between Lipuslat (361) and Latum (360) Blocks. He added their common boundaries between Lipuslat- 361 and Latum (360) Blocks runs from the hinter-lands down to the beach.

47. Upon cross-examination, on how did he know they share a common boundary with Tiengawom Clan, he stated he was told by his father Anthony Kilawun and Kuroh who just passed away recently. He added he was not sure if another clan also owns any portion of land inside Lipuslat (361).

48. Robert also added both his father and Tukiah did custom over the land and they did the custom at Daitura hamlet.

48. Third witness, Paul Sawit of the Nissal Clan stated his clan the Nissal Clan has a common boundary with the Tiengawom Clan. He claimed his grandfather told him the common boundaries were there since long time ago and there were no disputes only until today.

49. Paul added during the clearance for the new airport their elders and elders of other clans followed the boundaries in 1993 and there were no disputes only until very recently.

50. Finally, Alois Yeruh the last witness of the Tiengawom Clan claims the Lipuslat land to be theirs (Tiengawom Clan).

51. He stated the last person of the clan to cultivate the Lipuslat land was Yembek. Yembek was the last person and Peter Tukiah and Anthony Kilauwun did customary feasting over him. The customary feasting was held at Mataitukuar hamlet.

52. Yeruh stated his uncle Anthony Kilauwun told him that from Lisolik hamlet at the beach and up to Lipuslat the land belongs to them (Tiengawom Clan).

53. He added Portion 362 is his father’s land which is boundarying portion 361 now the subject of the dispute which belongs to his Tiengawom clan, whilst on the other side is Anthony Kilauwun and Linus Yembek’s land and the land Latum 360 up to Lihir Civil Camp is boundarying the Aputubulkazilzil clan.

54. Yeruh clarified that in 1993 when they were carrying out the surveys at the airport there were no recorded dispute between the Unawos Clan and Tiengawom Clan. He stated that this was because all the elders from both clans were present during the survey. The two elders, Otto Zikges and Hugo Lap of the Unawos clan which were present during the surveys are now deceased and this dispute only arose in 2007 and 2008.

55. Upon examination by the court on who was cultivating the land, Yeruh replied it was Lilih, Ziklaka, Trumu, and Yembek all of the Tiengawom Clan. He added the members of the Tiengawom clan continued to cultivate the land today.

56. He further clarified his uncle Linus Yembek was married to a lady from the Tinetalgo Clan and he use to with the assistance of his wife they continue to cultivate the said land following the earlier elders of the Tiengawom Clan.

Deliberations on findings

57. We acknowledge the fact that both parties are from Kunaye No.1 village and they have effectively gave evidence in relation to origins of their respective clans and where their ceremonial hut/haus boi and burial grounds and share common boundaries with other neighboring clans.

58. According to the evidence nobody actually lived on the land, however the Tiengawom clan spokesman and witnesses stated the land was cultivated by their elders Yembek, Lilih, Ziklaka, and Trumu. And Yembek was the last person to have cultivated the land.

59. Although the Unawos clan is claiming ownership of the said land, we rely on the unrebutted evidence of Mr. AloisYeruh in that he was part of the survey team in 1993, including elders of all the clans including Tiengawom and Unawos, namely, Otto Zikges and Hugo Lap. According to Yeruh the two gentlemen Otto Zikges and Hugo Lap of the Unawos clan did not have any recorded dispute with the Tiengawom clan during the period of the survey. If there was no recorded dispute then why Unawos clan is now claiming ownership over Lipuslat land. We find no justification for the Unawos clan’s claim as to customary ownership or why their elders had not contended the issue of ownership earlier, rather than wait for a period of fifteen (15) years and raise the issue over ownership.

57. We are also indebted to the Lihir Gold Limited Company for their maps of the land use in around the airport area including Lipuslat land. This map clearly indicates that Tiengawom clan shares a common boundary with the Nissal clan and Tinetalgo clan respectively. The maps we are relying on were a direct result of that survey which was done in 1993, where elders from Unawos, Tiengawom and other clans were present. Thus the same map includes the same boundaries we walked with both parties, the only new inclusion on the map is the portion inside Lipuslat which the Unawos clan are claiming to be theirs. This particular portion after the survey in 1993 was identified to be under the claimant of the Tiengawom clan until the dispute arose in about 2007.

58. From the evidence on the map all Unawos boundaries are located further up to the Kul area and not near the Lipuslat land. The evidence affirms Tiengawom clan is located in between Nissal and Tinetalgo clans respectively, in respect of the land the subject of the dispute.

59. Moreover, by operation of law, we explore the assistance of Section 67 of the Land Dispute Settlement Act which allows for certain presumptions as to the vesting of interests which stipulates, “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 a presumption that that interest is vested in the first-mentioned party.” The evidence here clearly states the Tiengawom clan have exercised a controlling interest over the said land for over 12 years since the time of their last elder namely Yembek who had cultivated the land over time and which was affirmed by the survey in 1993 which elders of the Unawos clan were a party to.

60. We also adopt the view of Amet .J sitting as Special Commissioner of the Lands Titles Commission in application N90/101 in the matter of Hides Gas Project Land as his Honour stated it is not sufficient to solely rely upon genealogical ancestral history: “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 our country at this time.”

61. His Honor’s view, affirms that when investigating into customary ownership of land it is not sufficient to rely solely on genealogical ancestral history when determining customary ownership to land, however we sitting as a Local Land Court should consider all other intervening factors between the origins of the disputing parties to what their present circumstances are.

62. In the matter before us the Unawos clan are basing their claim solely on their genealogical ancestral history which in our view was defeated by the fact that we rely again on the evidence of Alois Yeruh who was a party to the survey in 1993 and stated clearly that the elders of the Unawos clan namely, Hugo Lap and Otto Zikges never raised any issues over customary ownership in relation to the said land or over their customary boundaries either during or after the survey. Thus then leaving the Tiengawom clan to exercise controlling interests over the said land since then.

DECLARATION

59. Based on the above findings and deliberations, we unanimously declare that the customary ownership of Lipuslat Land is vested in Mr. Peter Tukiah and his Tiengawom clan.