Parau v Black [2023] PGNC 459; N10609 (12 December 2023)

N10609

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 150 OF 2022

WALTER PARAU REPRESENTING DUAKAI OWOZA CLAN OF BOGAE VILLAGE, USINO BUNDI DISTRICT
Plaintiff

V

JOHN BLACK OF NOGOI YOWO OMOWO
LAND INCORPORATION-TINARUA CLAN
First Defendant

HIS WORSHIP GEORGE EPOR
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Madang: Cannings J
2023: 12^th September, 23^rd, 25^th October, 12^th December

JUDICIAL REVIEW – decision of Local Land Court – whether Local Land Court has jurisdiction to review decision of Special Land Titles Commission.

The plaintiff applied to the National Court for judicial review of the decision of a Local Land Court that quashed a decision of a Special Land Titles Commission made nine years earlier and recognised the first defendant as owner of disputed land.

Held:

(1) Decisions of a Land Titles Commission established under the Land Titles Commissions Act regarding disputed ownership of customary land may only be quashed or varied by order of the National Court in its appellate jurisdiction under s 38 of the Land Titles Commissions Act or in its review jurisdiction under Order 16 of the National Court Rules.
(2) A Local Land Court or a District Court has no jurisdiction to hear or determine challenges to decisions of a Land Titles Commission.

(3) The Madang Local Land Court constituted by the second defendant exceeded its jurisdiction by purporting to quash the decision of the Special Land Titles Commission.

(4) The decision of the Madang Local Land Court was null and void and was quashed by order of the National Court.

Cases Cited

The following cases are cited in the judgment.

Bizei v Gabut (2014) N5669
Black v Batata (2017) N6712
Black v Gabut (2014) N5680
Garima v Gabut (2018) N7159
Gason v Mangu Clan of Astrolabe Bay (2016) N6163
Itarai v Nokoma (2016) N6176
Medaing v Gabut (2016) N6431
Salub v Luedi (2016) N6519
Tigavu v Koito (2016) N6170

Counsel

B Tabai, for the Plaintiff
J Black, the First Defendant, in person
E Manihambu, for the Second and Third Defendants

12^th December 2023

1. CANNINGS J: The plaintiff, Walter Parau, representing Duakai Owoza clan of Bogae village, Usino Bundi District, Madang Province, applies for judicial review of the decision of the Madang Local Land Court constituted by Land Court Magistrate his Worship George Epor of 16 March 2022 to quash a decision of the Special Land Titles Commission regarding the Ramu Nickel-Cobalt Project.

2. The decision quashed was dated 14 August 2013. The subject matter was disputed ownership of block 1 of Special Mining Lease (SML) 8. This is an area of 1,346.73 hectares around the mine site at Kurumbukari, Usino Bundi District. There were six disputing parties and the Special Land Titles Commission decided that one of them, Imuruba Clan, had exclusive land ownership rights over the land.

3. The plaintiff’s clan, Duakai Owoza clan of Bogae village, was another of the six disputing parties and lodged an appeal in 2013, CIA No 117 of 2013, against the decision of the Special Land Titles Commission. That appeal has not yet been heard. It is not clear why it has not been heard, but it remains pending and no decision has been made by the Court to dismiss it for want of prosecution.

MADANG LOCAL LAND COURT PROCEEDINGS

4. Another of the disputing parties, Nogoi Yowo Omowo clan, led by the first defendant, John Black, commenced proceedings in 2021 in the Madang Local Land Court, challenging the decision of the Special Land Titles Commission. The land was described differently to how it was described in the matter before the Special Land Titles Commission but it is agreed that the subject matter of the Local Land Court proceedings is the same as the Special Land Titles Commission decision of 14 August 2013.

5. The Madang Local Land Court upheld the challenge on 16 March 2022 and made the following order:

1. All awards, determinations and or orders issued by the Special Land Titles Commission in 2013 and or immediately prior to and after that in respect of land "Portion 19C, Milinch of Sepu Fourmil of Ramu in Madang known as Kurumbukari in which a special Mining Lease Tenement is located (here in-after referred to as "the land") are brought before this court and quashed forthwith.
   
2. Based on overwhelming evidence adduced in Court, Nogoi Yowo Omowo Incorporated Land Group is as of this date recognised and awarded the land as its traditional and customary owner for all intents and purposes.
   
3. All forms of benefits, royalties and entitlements payable in respect of that land be paid to Nogoi Yowo Omowo Incorporated Land Group who are now the customary owners of the land by Kurumbukari Nickel Mine ("the developer").
   
4. The first and second defendants herein shall ensure that order number 3 above is given effect to and complied with without unnecessary delays.
   
5. The developer of the land and all or any other company and or developer doing resources extraction from the said land shall, as of this date, deal exclusively with the said lLG unless and until these orders are set aside, revoked and or annulled by any court of competent jurisdiction.
   
6. No order as to costs since complainant is not represented by lawyers.
   
7. Time is abridged.
   

ARGUMENTS

6. The plaintiff argues that the Madang Local Land Court had no jurisdiction to hear a challenge to the decision of the Special Land Titles Commission or order that the Commission’s decision be quashed.

7. The first defendant, Mr Black, claims that the Madang Local Land Court had power and authority to determine the question of ownership of the land and did not err in ordering that the decision of the Special Land Titles Commission be quashed and that his clan be recognised as the true customary owner of the land. He argues that the Madang Local Land Court simply made the decision that ought to have been made in the first place by the Special Land Titles Commission.

8. The second and third defendants are the learned Land Court Magistrate, his Worship Mr Epor, and the State, and they are represented by Mr Manihambu of the office of Solicitor-General. Mr Manihambu submitted that the National Court has no jurisdiction to entertain this judicial review as the only course of action available to the plaintiff was to appeal to the Provincial Land Court against the decision of the Local Land Court in accordance with the provisions of the Land Disputes Settlement Act.

ISSUES

9. Two issues arise:

First, does the National Court have jurisdiction to hear this judicial review application?

Secondly, if it does, did the Madang Local Land Court have jurisdiction to hear and determine a challenge to the decision of the Special Land Titles Commission?

DOES THE NATIONAL COURT HAVE JURISDICTION TO HEAR THIS JUDICIAL REVIEW?

10. The plaintiff is challenging the jurisdiction of the Madang Local Land Court to review the decision of the Special Land Titles Commission. He does not wish to argue the merits of the decision of the Madang Local Land Court. He is not arguing that his clan should be awarded ownership of the subject land. He wants to argue that point when his appeal against the decision of the Special Land Titles Commission is heard. I consider that that is the proper approach to take.

11. Because the present judicial review is a challenge to the jurisdiction of the Madang Local Land Court, the best way of making that challenge is by the judicial review procedure under Order 16 of the National Court Rules. The plaintiff has invoked that procedure. He was granted leave to make the application for judicial review on 21 December 2022. I reject Mr Manihambu’s submission that the plaintiff was obliged to file an appeal in the Provincial Land Court. The matter is properly before the National Court, which has jurisdiction to hear this judicial review.

DID THE MADANG LOCAL LAND COURT HAVE JURISDICTION TO HEAR AND DETERMINE A CHALLENGE TO THE DECISION OF THE SPECIAL LAND TITLES COMMISSION?

12. The answer is no. The Ramu Nickel-Cobalt Special Land Titles Commission was established by way of a declaration and order of the Governor-General, on the advice of the National Executive Council, made under s 4 (exception of certain disputes) of the Land Disputes Settlement Act, which relevantly states:

(1) Where the Head of State, acting on advice, is of the opinion that special circumstances exist that require a dispute to be settled by means other than those provided by this Act, the Head of State, acting on advice, may, by notice in the National Gazette, declare that this Act does not apply to the dispute. ...

(3) The Head of State, acting on advice, may, by regulation, determination or order, make provision for the settlement of a dispute to which Subsection (1) applies.

13. The declaration and order were published in National Gazette No G169 of 27 December 2001. It was declared that the Land Disputes Settlement Act does not apply to the land dispute concerning land required for the Ramu Nickel-Cobalt project. It was ordered amongst other things that a Commissioner (later changed to Commissioners, after the death of the inaugural Commissioner, Mr Patrick Nasa) be appointed to determine ownership of the land and that the provisions of Part V (appeals etc) of the Land Titles Commission Act will apply to all determinations made under the order (see discussion of the history of establishment of the Special Land Titles Commission in Tigavu v Koito (2016) N6170).

14. The Special Land Titles Commission conducted hearings in Madang over several years in the early 2010s and delivered a series of decisions in 2013 including its decision of 14 August 2013 regarding the SML 8 land.

15. Local Land Courts are established and exercise jurisdiction under the Land Disputes Settlement Act but only in relation to customary land that does not fall within the jurisdiction of a Land Titles Commission. This means that the Madang Local Land Court had no jurisdiction to hear or determine a challenge to the decision of the Special Land Titles Commission.

16. Decisions of a Land Titles Commission established under the Land Titles Commissions Act regarding disputed ownership of customary land may only be quashed or varied by order of the National Court. It can do so in its appellate jurisdiction under s 38 of the Land Titles Commission Act or in its review jurisdiction under Order 16 of the National Court Rules.

17. Section 38 (right of appeal), which is contained in Part V of the Land Titles Commission Act, relevantly states:

(1) A person aggrieved by a decision of the Commission ... may appeal to the National Court within 90 days after the decision or the review of the decision. ...

(2) An appeal under Subsection (1) may be made only on the ground that—

(a) the Commission has exceeded its jurisdiction;

(aa) the decision was against the weight of the evidence;

(b) the hearings of the Commission were conducted in a manner contrary to natural justice; or

(c) the Commission was wrong in law.

18. There were many appeals against decisions of the Special Land Titles Commission lodged within the statutory period in the National Court at Madang during the time that I was resident Judge in Madang. I heard and determined those appeals and many of my decisions have been reported, eg Gason v Mangu Clan of Astrolabe Bay (2016) N6163, Tigavu v Koito (2016) N6170, Itarai v Nokoma (2016) N6176, Salub v Luedi (2016) N6519 and Garima v Gabut (2018) N7159.

19. If a person aggrieved by a decision of the Special Land Titles Commission fails to appeal within 90 days after the decision or within such further period that may be allowed under related provisions of the Land Titles Commission Act, they can apply for leave for judicial review under Order 16 of the National Court Rules. This was the option taken in other cases such as Bizei v Gabut (2014) N5669 and Medaing v Gabut (2016) N6431.

20. The first defendant, Mr Black, should know all this. In 2014 he applied for judicial review of the same decision of the Special Land Titles Commission that he somehow successfully challenged in the Madang Local Land Court. His application for judicial review was refused (Black v Gabut (2014) N5680). He tried again in 2017 to challenge the same decision of the Special Land Titles Commission. The proceedings were dismissed as an abuse of process (Black v Batata (2017) N6712).

21. How could he think that in 2021, eight years after the 14 August 2013 decision of the Special Land Titles Commission and after he did not exercise his right to appeal against that decision and after he tried twice without success to convince the National Court that the decision be set aside, he would be able to get the decision set aside by a Local Land Court? How did he manage to find a Local Land Court Magistrate so ignorant of the law that such a court had absolutely no jurisdiction to entertain Mr Black’s challenge? These are mysteries that must await resolution at another time and in another forum.

22. The Madang Local Land Court, constituted by the second defendant, his worship Mr Epor, had no jurisdiction to hear and determine any challenge to the decision of the Special Land Titles Commission of 14 August 2013.

CONCLUSION

23. The Madang Local Land Court exercised powers it did not have. It had no jurisdiction and its order of 16 March 2022 must be quashed. The first defendant must be restrained from taking similar action without the leave of the National Court.

ORDER

(1) The decision of the second defendant of 16 March 2022 at Madang in Local Land Court proceedings styled as LLC 8 of 2021 is quashed forthwith.

(2) The first defendant is restrained forthwith from filing in the Local Land Court or the District Court or any inferior court or tribunal any proceedings regarding the subject matter of LLC 8 of 2021 without the leave of the National Court.

(3) The defendants shall pay the plaintiff’s costs of these proceedings on a party-party basis, which shall, if not agreed, be taxed.

(4) The file is closed.

________________________________________________________________
Tabai Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for the Second & Third Defendants