Tinetalgo Clan v Tiengawom Clan [2008] PGLLC 7; DC4062 (2 October 2008)

DC4062

PAPUA NEW GUINEA

[IN THE LOCAL LAND COURT OF JUSTICE]

LLCr. O3 of 2008

BETWEEN

Tinetalgo Clan

AND

Tiengawom Clan

Lihir: S.Lavutul

Mediators:

A. Bosle

A. Hanburuk

2008: 02nd October

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

Nil

References

Land Dispute Settlement Act, s.67, s.68

Local Customs and practices of the Lihir people.

Representation

Ms.Veronica Yembek –Spokesperson for Tinetalgo Clan

Alois Yeruh – Spokesman Tiengawom Clan

DETERMINATION OF OWNERSHIP AS TO CUSTOMARY LAND

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 Leketai land.

2. The Land the subject of the dispute is Leketai Land along the Kunaye- Airport road.

ISSUES:

3. Whether either party has standing by custom to claim customary ownership of the said Leketai land and whether Leketai is part and partial of Block 361- Lipuslat or not.

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 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.

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. 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. Both parties 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

TIENGAWOM CLAN

16. Spokesman, Alois Yeruh in his evidence stated he originates from Kunaye No.1 village, Lihir Island and he hails from the Tiengawom clan. He further stated he recognized the spokesperson for the Tinetalgo clan as she resides at Kunaye No.1 village.

17. Yeruh reiterated he wish to tell the court that Leketai land comprises the Lihir Civil and Construction Camp Area. He claimed all the evidence is contained in the case regarding Block 361, Lipuslat Land. He added Lihir Civil Camp Area is part of Block 361- Lipuslat land.

18. Yeruh stated he wish to tell the court that all the evidence and all the elders that they have mentioned cultivating the Lipuslat land is already with the court.

19. Yeruh stated the land Leketai or Lihir Civil Camp Area which Veronica Yembek is disputing ownership to is part and partial of Block 361-Lipuslat Land.

20. Yeruh recalled Veronica Yembek was present at that time together with her uncle Tohile and Augustine Daimol in 1996 when they sat in the mediation over the issue of Lihir Civil Camp Land. He claimed there was no dispute over ownership over the years including the period the camp was established. This dispute only arose in 2007.

21. Yeruh reaffirmed the Lihir Civil Camp Area/Leketai land belongs to the Tiengawom Clan and is part and partial of Lipuslat Land.

22. Yeruh further stated, he relies on the evidence before the court in the matter over Block 361, regarding the elders of Tiegawom Clan namely Ziklaka –(male), Lilil –(male) and Turumua –(male) they used to cultivate and now the Tinetalgo clan are claiming ownership over it.

23. Yeruh added the last elder of the Tiengawom clan was Yembek. Yembek died and Anthony Kilauwun and Linus Yembek performed customary feastings over him (Yembek). Yeruh claimed when Anthony Kilauwun and Linus Yembek passed away he performed custom over them.

23. Upon examination in chief, Yeruh told the court that following the consultations and mediations between the Tiengawom and Tinetalgo clan in 1996, Tiengawom clan was identified to be the true owners of the said land including the boundaries. The elders of both clans were present and Veronica was not present as she was in Namatanai and they (Tiengawom) were present with her elders. He added they surveyed the land and saw that the boundaries belong to the Tiengawom clan.

24. Yeruh added in his reply that between that period of occupancy by Lihir Holdings Limited and up to the time of Lihir Civil and Construction, Linus Yembek did have or signed a signed and sealed agreement with both Lihir Holdings and Lihir Civil and Construction for the use of his land. Yeruh explained after the death of Yembek, his daughter Veronica took over the Lease Agreement and they disputed it as Yembek did not let him and his clan know.

25. Yeruh continued and stated, he disputed it and sat with Veronica and Ludwick Tuanasik in order that they could agree to sign an agreement with Lihir Civil and Construction. He added, after that Veronica disagreed and decided not to sign the agreement with him and Ludwig Tuanasik although she had given her undertakings in order to sign an agreement.

26. Upon cross-examination Yeruh stated himself, his uncles Anthony Kilauwun and Linus Yembek had consented Lihir Holdings Limited to lease the said land. He added he is certain that Ziklaka and Lilil were elders of the Tiengawom clan of Kunaye No.1 village and did reside at Daibunbale hamlet. However he added he does not know their fathers names as they were from the first generation.

27. He added he collects the rentals for use of the said land as the land is his. Further Veronica queried Yeruh on whether he had evidence to prove that she took over the agreement from her father for no good reason or are there any documents to prove her claim. Yeruh replied, after her father died she signed a new agreement with the Lihir Civil and Construction Limited in order to lease the land.

28. Veronica queried Yeruh whether her uncle Toihile was still alive when the dispute arose and added Toihile was still alive however the dispute was not registered in court. He added Veronica is following her father use to cultivate the said land and she is following her father in order to claim the land.

29. Further upon being queried on who did performed custom over elders Lilil and Ziklaka, Yeruh replied it was Turumua and Yembek performed custom. And the other person who took part in the feastings was Rotolam of Hahut clan of Mali Island. Rotolam’s mother Ritiak is the daughter of Lilil the elder of Tiengawom clan.

30. John Ulon 1^st witness and a member of the Tiengawom clan states according to stories he had heard from his fathers the said land belongs to the Tiengawom clan. And that the Lihir Civil Camp is part and partial of Block 361 or Lipuslat land.

31. Second witness and member of the Tiengawom clan Ludwig Tuanasik of Mali Island, claims he comes from the Tiengawom clan. He affirmed the land on which Lihir Civil and Construction Camp is located belongs to the Tiengawom clan and is located inside Block 361 and case regarding Block 361 is already with the court.

32. Tuanasik added if the land the subject of the dispute is outside Block 361 then he would add some more stories to the evidence already before the court.

TINETALGO CLAN

34. Spokesperson of the Tinetalgo clan, Ms.Veronica Yembek, claims she comes from Kunaye No.1 village and a member of the Tinetalgo clan. She wishes to tell the court about the history of Lihir Holdings Limited which Bernard Amnol was in charge of.

35. Veronica claimed Bernard Amnol came and saw her father Linus Yembek, asked her father of his wishes to use the piece of land. Her father then approached August Daimol of the Tinetalgo clan and asked him for the Leketai land on which the Lihir Civil Camp is situated. August the agreed and gave the Leketai land.

36. She stated Yembek and August Daimol did an agreement and were receiving rentals for the use of the land in which she claimed to have witnessed it. She further added they continued to receive rentals until it changed to Lihir Civil Camp.

37. Veronica claimed in April 2003, Linus Yembek, herself and August did sign another agreement with Lihir Civil Limited for the use of the land and George Salot was their witness. She added her father Yembek did tell and her siblings that they would collect the rental payments and since 2003 she has been collecting the land rentals.

38. Veronica stated she wishes to clarify that she has not placed any gorgor on any land on Lihir and she has not created or have any dispute over land with anyone at Kunaye village. She claimed the people who are trying to grab land from her and her sisters are now in court.

39. Upon cross-examination whether she was present in 1996 when the boundaries were demarcated by the elders of the Tiengawom, Unawos and Tientalgo clans, she told the court she was not present. She also replied she does not know her family tree.

40. Witness Charles Matzien of the Unawos clan told the court they have a common boundary with the Tinetalgo clan and Nissal clan

41. Upon examination he told the court Leketai land belongs to the Tinetalgo clan. And upon further examination on why his elders Otto Zikges and Hugo Lap did not have anything to do with Blocks 360 and 361, he told the court he would not know of any reason and he replied he does not the owner of the said land.

FINDING OF FACT

42. Veronica Yembek as she claims to be the spokesperson of the Tinetalgo clan is the daughter of Linus Yembek a member of the Tiengawom clan of Kunaye No.1 village. Veronica’s father Linus Yembek did signed an agreement for lease over the land by the then Lihir Holdings Limited then currently the Lihir Civil and Construction Limited. Mr. Linus Yembek usually collects a month rental for land use from the above companies until his passing.

43. The dispute arose after the members of Tiengawom clan namely Alois Yeruh, and Ludwig Tuanasik found out that it was VeronicaYembek who took over the lease agreement from her father, Linus Yembek and was collecting monthly rentals from Lihir Civil and Constructions without the clan being aware of it.

DELIBERATION

44. In relation to the first issue, whether either party has standing by custom to claim customary ownership to the said Leketai land, we concluded from the evidence Leketai land was always under the controlling interest of the Tiengawom clan through Linus Yembek a member of the Tiengawom clan and the father of Veronica Yembek until his death and not the Tinetalgo clan as claimed by Veronica.

45. According to Lihirian custom, Lihir is a matrilineal society where customary ownership of land is acquired through the mother and not the father. In the similar sense Veronica Yembek could not possibly lay claim to her father’s clan land unless there is some understand between her father’s clan and herself. In addition all land on Lihir is clan owned except under special circumstances and in Veronica’s case there is no evidence to suggest such.

46. Directly from the evidence before us we found Linus Yembek and a member of the Tiengawom clan did signed a lease agreement between the Lessee Lihir Holdings Limited and eventually Lihir Civil and Construction Limited for monthly use of the said land. We observed that there is no evidence by the Tinetalgo clan that they had disputed Linus Yembek after he had entered into the lease agreement over the said land or whilst cultivating it. We also come to understand, based on the Lihirian Land Tenure system, if the said Leketai land was Tinetalgo land; Linus Yembek in his right mind would have not entered into such an agreement, as there is no evidence to suggest that Linus had claimed customary ownership of the said land either by fraud or any other illegal means.

47. Although Veronica claims she had assumed the rights to collect rentals for the use of the said land by Lihir Civil and Construction through her father does not extinguish the fact that her father died a member and an elder of the Tiengawom clan and not the Tinetalgo clan. We are certain that the issue of ownership should not be read into the lease arrangement by Veronica Yembek; by her collecting rentals does not give her absolute right of ownership over the said land. In our view, her privilege to collect rentals for the use of the said land should have automatically ceased after her father died because of the status of ownership over Leketai Land.

48. Secondly, after having walked the boundaries with both parties the map produced as a direct result of this visit to the said land indicated, the said Leketai land falls within the Lipuslat land or Block 361 under the Tiengawom clan and not the Tinetalgo clan as earlier claimed by Veronica Yembek. This boundary which was plotted with the assistance of Veronica Yembek and her witnesses only confirms the original boundary between the Tiengawom clan and the Tinetalgo clan which Alois Yeruh and his clan members are relying on. We confirm from the map Veronica Yembek did not plot any new boundary in order to support her claim, the boundary plotted is exactly the same boundary plotted earlier jointly by elders of the Tiengawom clan and the Tinetalgo clan including other neighboring clans in which the spokesman for the Tiengawom clan Alois Yeruh was a party to and was never in dispute until 2007.

49. We also learnt from the map that there is an indication that the perimeter fence of the Lihir Civil Camp certainly overlaps into the Tinetalgo clan claimant by a few meters, however this should not be seen by Veronica Yembek and her Tinetalgo clan members as the basis to claim customary ownership of the said land. The overlapping of the perimeter fence in our view was outright human error which could be easily corrected with the assistance of both parties.

DECLARATION

We therefore declare the customary ownership of the said Leketai Land is vested in Mr. Alois Yeruh and his Tiengawom clan and none other. We also declare the original boundary to be the said boundary between the Tiengawom clans’ Block 361 and the Tinetalgo clan.