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Papua New Guinea Local Land Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S LOCAL LAND COURT JURISDICTION]
LLC. 01 of 2013
BETWEEN
Anakes Clan
AND
Antabet Clan
Disputants
Buka: S Lavutul-Chairman
David Noem - Mediator
2013: 02nd, 03rd, 04th, 05th, 08th, 09th, 10th, 11th, 12th, 15th July
Real Property- Customary Land Dispute – Customary Ownership- Present and Past Interest on Land or Present and Past Circumstances of Competing Parties -Matrilineal Society-Genealogy-Early Settlements –Ancestral Land Marks-Sacred Spiritual sites and Burial sites- Common/New Boundaries-Customary Practices.
Cases Cited
1. Hides Gas Project Land, Re [1991] PNGLR 309.
2. Application of Ambra Nii and Other Members of the Toisap Clan [1991] PNGLR 357.
References
Land Dispute Settlement Act
Land Tenure Conversion Act
District Court Act
Representation
Mr. Dyson Kaitavara of the Anakes Clan of Dios village
Mr. Eugene Masiu of the Antabet Clan of Suir village
DECLARATION OF CUSTOMARY OWNERSHIP
28th January 2014
S. Lavutul: This matter came before us after attempts at mediation failed to amicably settle the issue of customary ownership over the Ramutzen land now the proposed site for the Ramazon Hydro Project in the Tinputz area on the North of Bougainville between the Anakes Clan of Dios and the Antabet clan of Suir village respectively.
2. For the purposes of clarity the dispute is over customary ownership specifically over the portion of land on which the proposed Ramazon Hydro Project Power Station is to be constructed.
3. This project is classified as a high impact project under the partnership of the Autonomous Bougainville Government, the PNG Power Limited and local communities in and around the vicinity of the project site.
4. The proposed project site is located along the Ramazon River towards the beach front and along the main highway which also encroaches into parts of Portion 334 now known as Raua Plantation and also into customary land towards the beach front.
5. Both parties were given equal opportunity to call evidence through their respective Spokespersons and witnesses. The court was able to visit the said portion of land under dispute under the guidance of the respective clan’s spokespersons and their witnesses on the 11th, 12th and 15th of July 2013 respectively.
Local Land Court Practice and Procedure
6. In the best interest of the parties and their supporters we wish to clarify any uncertainties in relation to the practice and procedure in the Local Land Court pursuant to Section 35 (1) (a) (b) (c) (d) of the Land Dispute Settlement Act whereby;
“a Local Land Court is not bound by any law or rule, evidence, practice or procedure other than the Land Dispute Settlement Act; and it may call and examine, or permit the parties to call and examine, such witnesses as it thinks fit; and may otherwise inform itself on any question before it in such manner as it thinks proper, and it shall endeavour to do substantial justice between all persons interested, in accordance with this Act and any relevant custom”.
7. We add despite the fact the Local Land Court does not follow strict rules of evidence it must at all times observed the Principles of Natural Justice and must give equal opportunity to the respective parties and their witnesses to present themselves and be heard fully; whereby substantial justice must be done between the competing parties. Thus in this matter before us we note we gave equal opportunity to both parties and their respective witnesses to be heard fully both in court and during the land boundary inspections.
8. We also wish to note for the purposes of records the Anakaripa Clan headed by Channel Suston and David Kosun filed on the 05th of July 2013 at 2.30 pm seeking the court to adjoin them as parties to this proceedings. However we were of the view it would be
unfair to them including the other parties as the hearing had progressed into the fifth day. Thus their application was refused and
the hearing continued to completion without the Anakaripa clan.
Facts Not In Issue
9. Firstly, portion 334 is clearly demarcated and known by the locals including the respective parties as Raua Plantation and it is freehold land which has an existing leasehold .
Facts in Issue
10. From the evidence both parties claim to have cultivated, resided and/or have had contact with the said land now the subject of the dispute since the time of their respective ancestors. This particular issue was contentious in which it has prompted us to pay close attention to each party’s claim of customary ownership.
11. Secondly is whether the boundary of the Antabet clan’s land extends beyond the Ramazon River on the south towards Dios village as claimed to be their southern border?
12. In order to enable us to analyse the interest of each parties in relation to their claim for customary ownership to the “land the subject of the dispute” we seek the assistance of section 67 of the Land Dispute Settlement Act which allows for certain presumptions as to the vesting of interests. Section 67 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 Section (1), it maybe rebutted only by evidence leading to clear proof that the interest is vested in some other person.
13. We also sought the assistance of the view by Amet J as he was then sitting as Special Lands Titles Commissioner in the Hides Gas Project Land case in which he said it is not sufficient to rely solely upon genealogical ancestral history;
“If that oral history traces the origin of a particular tribe or people or tribe 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”
14. Now reading into His Honour’s view is in line with the intentions and spirit of Section 67 (1) of the Land Dispute Settlement Act; each competing parties’ interests must be given careful consideration from their respective present circumstances to their past circumstances which should not be less than 12 years prior to the dispute as per the requirement by law under Section 67 (1) of the Land Dispute Settlement Act. It also prompted the court to seek out, “what other factors that ought to be taken into account in a changing developing nation and land tenure system such as is happening in our country today”.
Evidence
15. For the purposes of records we summarize the respective clan’s evidence in the following;
Antabet Clan.
16. We first look at the competing interests of the Antabet Clan of Suir village. First Suir village is located in the hinterlands of the Tinputz area of North Bougainville. Antabet in the local vernacular means eagle.
17. We confirm from the evidence their spokesperson Eugene Masiu hails from Woanim village and a member of the Antabet Clan. Eugene Masiu gave a detailed account of his ancestral genealogy and the migration routes which his ancestors took during their time to the present time.
18. He also gave a detail account of his clan’s landmarks which he claims depicts the existence of his clan from the past to the present time. We had the opportunity to see and witness for ourselves the landmarks which he referred to in his evidence during the land boundary inspections. There was no rebuttal by the Anakes Clan in relation to all the landmarks which were shown to us by Eugene Masiu and his clansmen.
19. We need not go into detail describing and specifying each land mark as we did not note and record any rebuttals by the Anakes clan during the boundary inspections. It also became clearer during the boundary inspections that all the landmarks and historical sites referred to by the Antabet clan were all found and identified to be within portion 334.
20. We also note from their evidence the Antabet Clan through their spokesperson Eugene Masiu gave a detail account of their clan’s family tree which depicts the respective generations of the Antabet clan. We also note there were no serious rebuttals to this piece of evidence by the Anakes clan.
21. We note from Eugene Masiu’s evidence is that his first main contention; the land subject of the dispute belongs to his clan as their piece of land within the disputed area is known as Tehoa. His second contention is that the sago plantation which is on the land was planted by his grandfather Orot from the Antabet clan. He added despite Orot not having a chiefly title he was regarded as the guardian of the said land.
22. We also note Eugene Masiu’s third other main contention is that his clan’s boundary extends beyond the Ramazon River to the south towards Dios village in which he claims to be the old water course way for the Ramazon River and he claims is locally referred to as the Suker or Suke is to be their original boundary.
23. The Antabet clan called the following four (4) witnesses to testify on their behalf; they are John Geso and Desmond Kuakup who are all members of the Anakes clan and Mathew Kavaski a member of the Natsi clan.
24. Witness Mathew Kavaski hails from the Natsi clan of Rotesa village; he appears to have recognized Daison Katavara of the Anakes clan and resides at Dios village. He added his father is from the Nakaripa clan whilst Eugene’s father is from the Nakas clan. He claims to have known the land the subject of the dispute is known as Tehoa.
25. He told the court he only wants to tell the court that he shared a common boundary with Eugene’s clan. He added the boundary he wants to witness is the northern end of the land as his Sumui land shares a common boundary with the disputed area.
26. Witness John Geso of Ton village and a member of the Anakes clan recognize Daison Katarava as his nephew as they come from the same clan. Both his father and mother hail from the Anakes clan.
27. He also claims Eugene Masiu to be his uncle and he has come to support the Antabet clan in relation to their boundary; whilst he claims he does not have any grudges against Daison, he only wants to correct Diason through this court proceeding.
28. It became clearer from the cross examination John Geso is Daison’s uncle and they are closely related through the Anakes clan; and their female elder was Muipoa.
29. Witness Desmond Kuakup is 36 years old and hails from Oban village and a member of the Anakes clan. He claims he hails from the same clan as Daison Katavarava and his father hails from the Antabet clan as Eugene Masiu.
30. He stated is here to tell the court that he shares a common boundary with Eugene and his Antabet clan. He added the lady Muipoa they (Anakes clan) referred to was his elder from his clan and he continuous to hold onto her mismis (traditional shell money) which was given to him by one Tsunoveru a chief of the Antabet clan in about 2003. He added the reason why Tsunoveru gave the shell money in order to reaffirm their (Anakes and Antabet clans) relationship and living together.
31. Desmond; when examined on who held onto Muipoa’s shell money to the land he replied it’s his mother Josepha Tarahi. He went on to tell the court his mother Josepha Tarahi comes from the Butso sub-clan of the Anakes clan.
32. He also added Daison came to live at Dios village during the Bougainville crisis. He replied during examination that the Suke creek is the border or boundary between the Antabet clan and Anakes clan. He also stated the disputed land belongs to the Antabet clan. Desmond further replied in examination that he has a problem with Daison Katavarava spokesman for the Anakes clan because Daison claims they obtain shell money or mismis by way of prostitution.
Anakes Clan
33. Daison Katavarava the spokesperson for the Anakes clan comes from Dios village and a member of the Anakes clan. He claims to recognize Eugene Masiu but he does not know him. He added Eugene comes from the Antabet clan of Sisiko village.
34. He stated the land the subject of the dispute is Ramoetsan and he claims the piece of land belongs to the Anakes clan for a very long time.
35. He stressed according to his history they came down from Tenebo hamlet and settled on Ramoetsan on a hamlet called Tsuiptsuip. He added it was a lady namely Muipoa from the Anakes Clan which moved down and settled on the northern side of Ramoetsan river. The other lady namely Terebon was on the other side of the river in a hamlet called Tobeporobon. They resided there as the first settlers and whilst they were there the lady Muipoa placed stones (land marks) and named them. He claims Muipoa also gave names to the lakes and springs in the area.
36. He added Muipoa his elder bore children and they resided on the same portion of land named as Tsuiptsuip. He claims whilst they were there they laid claim to all the land on the northern side, and western side to the hinter lands. He also added Muipoa placed her boundaries in order to claim the land she had occupied and settled on by using rocks and trees.
37. Daison claims as the children grew they migrated to Mukekeo hamlet. He added during this era there were warriors who travelled in the area in canoes called mona in the local dialect, they were able to attacked, killed and ate their ancestors. He claims the survivors then crossed over and resided at Naboin hamlet.
38. Daison claims whilst they were at Naboin they decided to return to Tsuiptsuip and they now settled at Ramoetsan and whilst they continued to reside there they were attacked by warriors. These warriors were from the Buka area that used to do trips by canoe to Taiop and would attack them on their way back to Buka.
39. Daison reiterated during that time of the attack a lady by the name of Litu from the Anakes clan escaped with her daughter Walabe. Daison continued during that era whilst paddling in their canoe, the area was packed with wild dogs that were able to kill and ate humans. The lady Litu was attacked and killed by these wild dogs.
40. He stated Walabe, Litu’s daughter then settled at Selau and bore children and her generation did not own any land at Selau but they owned land on Ramoetsan where they had earlier settled. He added whilst Walabe’s generation settled at Selau their other generation continued to settle at Ramoetsan.
41. He claims their family tree shows that members of the Anakes clan got married to other villages but still remained in Ramoetsan. He claims inside the Ramoetsan land his elder and great grandmother Muipoa gave names to places and stones (landmarks). Muipoa had her sacred places for initiations including fruit trees and burial grounds on the said land. He added she also had the initiation place for the Upe/manhood. He explained it was an initiation for young man depicting manhood. The Upe ceremonies were done at a special place on the said land. Daison affirmed after Muipoa’s reign her generation continued to maintain their presence on the said land.
42. Daison claims whilst they resided there they had a traditional tie with other bordering villages. Those were the Soametz clan, the Naboin clan and the Anakes of Sumui village. Whilst the Nakaripa clan came later and they resided together and through inter-marriage there were a lot of other people too came to settle on the Anakes clan’s land at Ramoetsan.
43. He added his generation also got married and settled elsewhere but they used to come back to their land. He further claims the land at one stage did not have a leader to watch over it. Daison claims whilst they did not have a headman to watch over the land they then gave that leadership to a son of the Anakes clan namely, Teus.
44. Daison stated that for those in his generation know very well the land in dispute is their land. He claims inside the disputed area there is a known masalai ples or spiritual place. He claims his clan has a masalai/spirit in the form of shark and another in the form of a dog that resides in the area. He also claims his clan also has a masalai/spirit in the form of a black and white snake on the land belonging to Anakes clan.
45. Daison further stressed her great grandmother Muipoa left her place of origin known as Tenebo up in the mountains; and according to their family tree she was the second generation on their Anakes family tree. She left Tenebo and followed the route through Tepa then to Supiul, she then followed the Ramoetsan River and settled at Tsuiptsuip hamlet. Daison reiterated that is why they claimed the land to be their land because Muipoa was the first lady to settle on the said land.
46. Daison further told the court they are claiming the land to be theirs because their grandmother Muipoa gave names to all the rocks including the creeks on the said land. And that is why he claims the land to be Anakes land.
47. He added on the 17th of May 2013 a boundary was made during the mediation and he refused to recognize the boundary as it is not recognized as the common boundary. Daison stated that it was his first time to have heard of such a boundary between them and the Antabet clan. He insisted they had shifted him from the original boundary which his mother Muipoa had originally settled. He claims the Antabet clan has included his sacred grounds into the Antabet clan’s claimant.
48. Daison stated when the land was divided and originally the first settlers used to own the larger portion of the land. He added you could only claim a smaller portion for land acquired through purchase or some other traditional and customary means of exchange. He further stated; but on the 17th of May 2013 when queried how they claimed the said land they (Antabet clan) maintained they claimed it by blood as one of the Anakes clansmen was responsible for the death of their relatives. Moreover Daison stated the Antabet clan claims the Anakes Clan did not have the capacity to pay so in turn they now claim the said land. And so Daison stated thus their response indicates the land belongs to the Anakes clan. Daison stated when he asked them during the mediation on who had died from their clan but they did not give him any names or established who actually died.
49. Daison told the court the other witnesses for the Antabet clan claims he was not the first settler in the area; however he told the court he is the first settler. He claims; he wish to tell the court the land in dispute he is the first settler as his elder first settled on it and claims he exactly saw them when he was a little boy. He added he disputed the Antabet clan to be the first settlers and original owners of the land.
50. He claims to have all the stones (land marks) and he has some sketch that he wishes to refer the court to and rely on. Firstly his first burial ground, the 1st burial ground is the solwara matmat (bodies were disposed into the sea). Secondly is the cremation area where bodies of the dead were burnt was referred to as Toberporavun.
51. He added thirdly the other burial site was where they killed and ate humans and after the arrival of the Christian Church a cemetery was established at Nebkeo. Daison also clarified the other burial sites is outside the portion in dispute begins.
52. Daison in his evidence further stated inside the disputed area there are lakes;
53 He added in the same area they have spring waters belonging to the Anakes Clan;
54. He further stated on the disputed land there his landmarks (stones) they are as follows;
55. He claims the above landmarks are located both within and outside of the disputed area. Moreover Daison told the court they also have some historical trees on the said land. There is a galip tree called or referred to as Vabetpepororo. There is also a Kalapulin tree located on the beach as a landmark tree for the Anakes clan including a mango tree, a pikus tree and a talis (okari) tree. He claims the talis/okari has dried up was replaced by a coconut which has also dried up now replaced with a tree commonly referred to a kanu tree which is mainly used to build canoes.
56. Daison told the court his clan has several Masalai sites or sacred spiritual places;
57. He further stated Anakes Clan is known as a dog and their initiation house is used to be designed depicting the mouth of a dog. He also added they had a sacred spirit in the form of a chicken who used to reside on a creek referred to as Vurpetoa and their other initiation Vagupupe is where the menfolk dressed in Upe (a traditional hat) reside during initiations.
58. He added their other initiation place is Vonpitobaro. He claims this is where the initiation plate form was built and the men folk in dressed in Upe during initiation would go and drink their herbs filled in bamboo pipes. He also stated the other place where tattoos are done is called Votspepe and a cave referred to as Goveora.
59. Daison claims inside the disputed area and nearby to the disputed area are their following pieces of land;
60. He added in relation to their boundaries on the north they share a common boundary with other Anakes clan members and Anatsi. And on the southern side they share a common boundary with the Naboin clan and into the hinter lands they share a common boundary with other Anakes clan members.
61. Daison in his evidence put to the court his clan’s migration route. He told the court there was a man the brother of Muipoa namely Arote. He claims Arote took his niece namely Vanomtsi and they came down to the Western side on the west coast and they passed through Kokopau.
62. Daison further claims they transited at Kokopau and they returned to Ton. He claims they stayed there and they went to Tsunpets then to Vosbo and they resided there and they had a settlement there. He further claims from Vosbo they then proceeded to Dious village and settled where Muipoa had earlier settled.
63. Moreover, Daison added that those that followed the above migration route all passed away as they did not bore any females so as to continue their generation. He stated there were other members of their family tree that followed the route through Tepa hamlet and they came down to Tsupiul.
64. Daison claims the other branch of his family tree is from Mutahi village and came from Vakonpako. He stated they settled at Peavon hamlet and he claims the above were the routes that his people followed to move down to the coast.
65. Upon cross examination in relation to his land marks on Tenebo land, Daison replied, “I am aware there are land marks on the said land but I will leave that to my witness to further clarify”
66. Daison when queried on whom Muipoa got married to after she came down to Ramazon, Daison replied, “she got married to a man from the Anatsi clan.”
67. Upon further cross examination on who were the warriors that came to Ramazon, He replied, “The warriors I referred to were from Buka at Selau. They used to go to Tiop on the way back they would stop over there and killed the people and ate them.”
68. Furthermore spokesperson for the Antabet Clan, Eugene Masiu asked Daison on what is then the name of the disputed area, as it would defer from the name of the land. He replied, “We used to refer to it as Tenrambutsan or it would mean where the water starts. There is another portion of land named Tsuiptsuip, Purut and Are.”
69. Eugene Masiu further asked, “What exactly is the name of the whole disputed area?” Daison replied “I have told the court the land has different portions of land inside it as I stated earlier”.
70. Daison in examination explained his sister Delilah resides about 400 meters away from the disputed area and nobody resides on the disputed area.
71. Witness Christopher Kaksi comes from Vatoe village and a member of the Anakes clan as Daison. He would refer to Daison as his nephew and he is Daison’s uncle. He also recognizes Eugene Masiu as he comes from the Antabet clan.
72. Kaksi told the court the lady that left their original place Tenebo was Muipoa. He added she came down to their other piece of land called Tepa; then to Supiul onto Vostave and met Kovulo and then settled at Tsuiptsuip; and made her home there continued whilst there they encountered attacks by warriors from the Buka area. He added they were exposed to the Buka warriors as the warriors held an Anakes clan elder namely Orene and killed him.
73. Kaksi reiterated after the raid the neighboring clan the Naboins had sympathy for them (Anakes clan members) and took them to Soametz a Naboin hamlet; the Naboin elder at the time was Saroin. He claims they resided there until everything normalized and they return their hamlet at Tsuiptsuip. He explained the raids continued after some years and as a result they (Anakes clan members) started to move to other places; and some of them moved back to hinterlands whilst others paddled by canoe to Selau.
74. He specifically told the court the lady that paddled by canoe to Selau was Litu; this was the lady that bore the Anakes family which settled at Selau and ended there. He added there were other that died of sorcery and other related issues. He continued at the start of the Second World War they (Anakes) moved to Sipai on the west coast of Bougainville; and at the end of the war they (Anakes) moved back but the elder at Tsunpetz asked them to reside there. He clarified the paramount chief of Tsunpetz at that time was Kasman who then asked them to remain with them and after Kasman passed away they moved back to Dios village and remain there until today.
75. He added the caretaker of the land was Deous from the Nakaripa clan; in appreciation for looking after their land they rewarded him with piece of land and the person who gave the land was Gatogil from the Anakes clan. He claims that is why they remain there today.
76. Kaksi upon examination; revealed the 1st notable land mark was that Muipoa prior to her death buried her husband at Tsuiptsuip and planted a galip tree in remembrance of his death. He also revealed there was another lady that followed Muipoa namely Teravun; she settled on the other side of the river at a place now called Tobeboravun and earlier known as Gartan. He claims he looked after the land on the Northern side whilst Muipoa on the Eastern side and neighbors to the Anachi clan.
77. He totally denied the Antabet clan from his knowledge has any claim or interest inside the disputed area. He added they do not have any remnant of settlements, hamlets and burial sites on the disputed area.
78. In relation to the sago palms on the disputed area he stated; it is a swampy area and many other people used to come and harvest sago there; they were Nagerio, Tokapa, Kespuri and including the people residing on the Rauwa plantation. He claims they take the seeds and disperse it by throwing it on the ground; specifically nobody in particular planted the sago and he added an Antabet man namely Orot planted sago there and he recalled Orot died after independence.
79. When queried over the new boundary which was demarcated on the 17th of May 2013; he stated he’s one of those persons that usual involved in the demarcation of land boundaries he is not aware of the new boundary on the disputed land.
80. He further stated the area towards the beach front on Tsuiptsuip is a sacred spirit or masalai area and was not safe for any stranger to walk through or come near it. And he added only a toke who is a person from Anakes clan would be able to cure any person who is sick or possessed by spirit as a result of having gone into or come near the sacred masalai area and not anybody else from the other clans. He added the only two (2) persons today who are able to cure people are Dominica and Josepha.
81. Witness Bernice Asam similarly gave account of her clan family lineage and migration route that ends at Dios village till today. Secondly she gave her account over the land the subject of the dispute. She recalled from her mother, grandmother a member of the Anakes clan including her grandfather who was chief of Antabet clan; the disputed area belongs to the Anakes clan. She added nobody use show any interest in the disputed area because it was a rocky place. She claims it’s a place where they go to look for protein like fish and crabs and only when the project was about to commence there were a lot of thoughts and views regarding the land.
82. She claims originally the land belongs to them the Anakes clan and they have landmarks on it, such as creeks and sacred spirit sites. She added if you are new and go into the area for the first time and you fall ill or be possessed by the spirits you would get sick. She claims they used to get back the spirit of those who have fell ill as a result of going into the area. She reiterated they are well aware of the herbs, shrubs and leaves which could cure those that fell ill as a result. She claims herself; Dominica and Josepha Tarahi are the only ones that assist those who fell ill as a result of entering the spirit sites within the disputed area.
83. Witness Francis Sobea of Vogo village and a member of the Naboin clan claim he shares a common boundary with the Anakes clan on the south and their boundary starts from the south to the west bordering the Anatsi clan. He claims there is no other border over the land. He also affirmed in examination his father of the Anakes clan was one of those that were engaged to wash and cure those who had fallen ill including another lady by the name of Dominica.
84. Lastly witness Judith Savis is 33 years old and resides at Namkerio village and she hails from the Anatsi clan. She recognizes Eugene Masiu and would refer to him as her uncle and their mothers hailed from the same clan whilst her father is Anakaripa. She claims she shares a common boundary with Daison’s clan up in the hinterlands and Dios to the coast and her land ends at Pusuro.
Findings
85. From our findings both clans have given a detailed perspective of their respective clan’s family genealogies and migration routes including their respective land marks as supported by evidence from their respective witnesses; which led to whom they are and where they are prior to this dispute.
86. Firstly, as we stated earlier we have satisfied ourselves through the evidence of the Antabet clan in that all the landmarks they referred to and relied on are within Portion 334 now Raua plantation which remains to be alienated land.
87. For the sake of clarity once a customary land has gone through the process of conversion under the Land Tenure Conversion Act as is the case of Raua Plantation land it extinguishes all customary rights to land as clearly stipulated by Section 16 of the Land Tenure Conversion Act;
“EFFECT OF ORDER.
Upon the making of a conversion order, but subject to any decision on review or appeal under Part V of the Land Titles Commission Act 1962–
(a) the land the subject of the order (other than land referred to in Section 11(1)(c)) ceases to be customary land, and the land and any right to the ownership or possession of the land, and any other right, title, estate or interest in or in relation to the land, cease in all respects to be subject to or regulated by custom; and
(b) all rights, titles, estates and interests, whether legal or equitable and whether arising from or regulated by custom or otherwise, and whether in rem or in personam, subsisting before the date of the order, are abolished, other than such rights, titles, estates and interests as are specified in the order; and
(c) the order has effect in respect of the land the subject of the order (other than land referred to in Section 11(1)(c)) in all respects as though the Registrar has taken the action referred to in Section 11(1)(a), (b) and (d) under the order, whether or not that action has been taken.”
88. Therefore we are of the view the portion of land referred to as Tehoa on the north of Ramazon River by the Antabet clan is no longer customary land as it has been converted to alienated land under portion 334 currently Raua plantation and it is no longer Antabet’s customary land and is not within the disputed area.
89. Secondly, the Antabet clan’s other reason to claim customary ownership of the disputed area is that their clansman and acclaimed guardian of the land namely Orot had planted a sago plantation on the said land. It then raises the issue of whether this particular interest has been maintained by the clan over the last 12 years or so prior to the dispute in 2013 as per the requirement under section 67(1) of the Land Dispute Settlement Act.
90. The court had the opportunity to inspect the disputed area on the 11th, 12th and 15th of July 2013; from our general observations of the surrounding there were no economic crops or food crops of value, gardens and/or remnant of early settlements except for a young lone sago tree which was claimed as evidence to demonstrate that the Antabet clan had continued to maintain their interest on the land. However it appears the clearance of the said land only started on the eve of the proposed Ramazon Hydro Project negotiations.
91. Our view is clearly supported by the evidence of the Anakes Clan’s witness Bernice Asam in which she stated;
“Nobody use to show any interest in the disputed area because it was a rocky place. It’s a place where we go to look for protein like fish and crabs and only when the project was about to commence there were a lot of thoughts and views regarding the land”
92. We rely on Bernice Asam’s evidence as she has lived her whole life at Dios village since her youth and she appears to be well versed and knowledgeable about their customary practices and livelihood in the area.
93. We are of the view one young sago tree on the land does not maintain and cannot sustain the Antabet clan’s interests over the land in their quest for customary ownership. Therefore this claim must fail.
94. Thirdly, It appears from the evidence and it also common knowledge the Ramazon River is a major land mark that runs through Portion 334 and the disputed area. Now the Antabet clan’s 03rd issue before us is whether their customary boundary extends beyond the Ramazon River to the south as shown on the Annexure one of their sketch map.
95. It is obvious we did not come across any evidence to show that the Antabet clan and Anakes clans were tribal enemies since the time of their ancestors. It appears from the evidence of both clans entered into inter-marriage amongst each other including other neighboring clans. We are of the view based on the evidence before us they lived side by side harmoniously.
96. We are of the view it is common not only in Bougainville but in other parts of Papua New Guinea our ancestors since time immemorial have seek the assistance of nature like rivers, galleys, trees, rocks, mountains, caves, waterfalls, streams, and creeks to demarcate their boundaries and they faithfully observed it. Thus as a sign of respect and in order to maintain trust and harmony amongst the respective clans and tribes. We are of the view traditional boundaries are not absolute perfect straight lines as is the case before us.
97. With the above line of reasoning we recognized the Ramazon River to be the major land mark and traditional boundary between the Anakes and Antabet clan since the time of their ancestors and prior to acquisition of their customary land for the Raua plantation. We also find it difficult to understand why no members of the Antabet clan had settled on the south side of the Ramazon River if they claim their boundary extends beyond the river. There is no evidence as proof of any early settlements and remnants of the Antabet clan so as to maintain their claim for customary ownership.
98. Therefore we are of the reasonable view the intent by the Antabet clan to place their boundary further to the south beyond the Ramazon River was intended to disadvantage the Anakes claim for ownership within the disputed area in light of the benefits the Ramazon Hydro Project would generate over time. And therefore it must fail.
99. Conversely, we find the Anakes clan despite the length of their migratory route by their elder Muipoa has continued to maintain their village at Dios on the coast prior to the dispute. We estimate Dios village is about 500 meters to a kilometer away from the disputed area.
100. We also found in between Dios village and the disputed area the Anakes clan has maintained their customary beliefs in spirits and sacred sites over the years prior to the dispute. From the evidence before us shows their sacred sites and landmarks run from the beachfront, into the sea and inland within the proximity of the land the subject of this dispute.
101. This was affirmed by the evidence of Bernice Asam corroborating the evidence of Daison Kaitavarava in that she claims originally the land belongs to them the Anakes clan and they have landmarks on it, such as creeks and sacred spirit sites. She added if you are a new comer into the area and you fall ill or be possessed by the spirits you would get sick. She claims they used to retrieve the spirit/soul of those who have fallen ill as a result of going into their sacred sites. She reiterated they are well aware of the herbs, shrubs and leaves which could cure those that fell ill as a result. She claims herself; Dominica and Josepha Tarahi are the only ones that assist those who fell ill as a result of entering the spirit sites within the disputed area. This piece of evidence was ably corroborated by witnesses Christopher Kaksi and Francis Sobea.
102. We also observed during the land boundary inspections and noted that Daison Kaitavarava’s cocoa garden is within the proximity of the subject land about less than 100 meters away on the right side of the road inbound Tinputz way.
103. Our reasonable observation as supported by the evidence before us; and with the proximity of Dios village to the disputed land it appears the Anakes clan have maintain their interest over the land including the sea by collecting and gathering from it. Such in our view they have taken total control over the said piece of land without objection from either the Antabet clan or all other neighboring clans prior to the dispute.
Declaration.
104. We conclude from the above line of reasoning and based on the evidence before us the Ramoetsan land now the subject of the dispute and prior to the dispute had remained under the total control of the Anakes clan. We therefore agree by absolute majority vote; we declare the Anakes clan of Dios village to be the recognized customary owners of Ramoetsan land and none other.
.......................
All parties Appeared In Person
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