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Parau v Gabut [2024] PGNC 111; N10775 (3 May 2024)

N10775

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CIA NO 117 OF 2013


WALTER PARAU REPRESENTING DUAKAI OWAZA CLAN OF BOGAE VILLAGE, USINO-BUNDI DISTRICT, MADANG PROVINCE
Appellants


V


JOSEPH GABUT, BENEDICT BATATA, GEORGE MINJIHU
& KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT
SPECIAL LAND TITLES COMMISSION
First Respondents


JOHN ARUA REPRESENTING IMURUBA CLAN
OF DANAGARI VILLAGE, USINO-BUNDI DISTRICT, MADANG PROVINCE
Second Respondents


JOE KOROMA REPRESENTING ONE FACTION OF NOGOI CLAN
OF GUYEBI VILLAGE, USINO-BUNDI DISTRICT, MADANG PROVINCE
Third Respondent


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


ABRAHAM TATAGU
Fifth Respondent


Madang: Cannings J
2024: 29th April, 3rd May


APPEALS – appeal against decision of Special Land Titles Commission regarding customary land ownership, land use rights, benefits – Land Titles Commission Act 1962, s 38 (right of appeal) – whether Commission’s decision was in excess of jurisdiction, against the weight of the evidence, contrary to natural justice, wrong in law.


The appellant was a disputing party in proceedings of a Special Land Titles Commission (the first respondent) regarding ownership of customary land. He was aggrieved by the Commission’s decision to reject a claim by his clan for ownership of the land. He appealed to the National Court against the Commission’s decision to declare that the disputed land was exclusively owned by the second respondent’s clan and that three other persons, including the fifth respondent, who gave evidence at the hearings of the Commission, had land use rights and were entitled to prescribed shares of benefits from a mining project on the land. There were nine grounds of appeal, which fell into three categories: (1) that the Commission exceeded its jurisdiction as two of the commissioners were unlawfully appointed and it purported to decide on the benefits due to the parties from the mining project that was to take place on the disputed land; (2) that the hearings of the Commission were conducted in a manner contrary to natural justice; and (3) that decision was against the weight of the evidence.


Held:


(1) The challenge to the appointment of two of the three commissioners was an abuse of process as it should have been made by an application for leave for judicial review before the Commission made its decision or at least soon afterwards. Further, the Commission has, under s 15(1) of the Land Titles Commission Act, “jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of ... land”. A dispute as to distribution of benefits is a dispute concerning ownership of customary land as it is a dispute incidental to a dispute as to ownership and therefore within the jurisdiction of the Commission.

(2) There was no evidence to support a finding of denial of natural justice to the appellants or to any of the other disputing parties.

(3) The Commission set out clearly the evidence for each of the six disputing parties and then gave carefully considered reasons for preferring the evidence for the second respondent. The appellants failed to prove in the required way that the Commission’s decision was against the weight of the evidence.

(4) The appeal was dismissed.

Cases Cited
Eddie Itarai v Sevuru Nokoma (2016) N6176
Gador Salub v Makurai Luedi (2016) N6519
Mathew Denguo Tigavu v Gamo Koito (2016) N6170
Re Wangaramut (No 2) [1969-70] PNGLR 410
Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163


Counsel
B Tabai, for the Appellants
S Phannaphen, for the Second and Fifth Respondents


3rd May 2024


1. CANNINGS J: Walter Parau, representing Duakai Owoza Clan, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission of 12 August 2013 regarding customary ownership of land known as “Imuruba”. It comprises Special Mining Lease 8, Block 1, at Kurumbukari, Usino-Bundi District, Madang Province, which forms part of the mine site for the Ramu Nickel-Cobalt project.


2. The appellant clan was one of six disputing parties in the Imuruba land hearings conducted at Madang in May and June 2012. The parties were:


  1. Imuruba Clan (the second respondent)
  2. Guyebi Nogoi Yowo Omowo Clan led by Joe Koroma (the third respondent)
  3. Guyebi Nogoi Yowo Omowo Clan led by John Black
  4. Nogoi Yowo Omowo Can
  5. Dukai Owaza Clan (appellant)
  6. Maure Mirungua Clan

DECISION UNDER APPEAL


3. The Commission summarised at pages 1 to 24 of its reasons for decision the affidavit and oral evidence presented by all disputing parties, including answers given in cross-examination in the case of oral testimony. Then at pages 25 and 26 the Commission summarised its findings and decision in the following terms:


FINDINGS


The Commission made the following findings on Imuruba clan’s claim for land ownership of Block 1 in land in SML 8.


  1. There is overwhelming evidence to support the existence of the Imuruba clan and the leaders of Imuruba. Dore and Makau were leaders of their clan and the leaders of the whole Kurumbukari (SML 8) land area since World War II.
  2. The colonial records, especially Murray Dickson Report, the Reports of Carpentaria Exploration Company written in early 1970s and the Anthropology Reports done for Highlands Pacific in 1992 confirm that Imuruba clan owns Block 1 land in SML 8 and the Imuruba Clan existed long before the 1970s.
  3. There is overwhelming evidence that Dore, Makau, Abraham Tatagu and John Arua and Sondamariba had been in control of the Imuruba land.
  4. That Guyebi Nogoi Omowo, Maure Mirungua and Duakai Owoza do not have any land use rights in Imuruba land.
  5. That dealings between Guyebi Nogoi Omowo and Imuruba clan were based on barter trade; and any project benefits John Arua may wish to share with Moku’s relatives, Clement Andambo or Baura Anton’s relatives will be deemed by the Commission to be based on the ties established by the traditional barter trade.
  6. There was evidence indicating that Baura Anton and Jennifer Baura have land use rights in Imuruba as they did live there.

DECISION


The Commission declares and orders that:


  1. John Arua of Imuruba clan has exclusive land rights over the Imuruba land and he will receive 75% of Ramu Nickel/Cobalt project benefits over all the land within block 1 of SML 8 of Ramu Nickel/Cobalt project.
  2. Abraham Tatagu has land rights in Imuruba through adoption by Dore and Makau.
  3. Declares that Baura Anton and Jennifer Baure have limited land use rights over Imuruba land.
  4. Directs that a Benefit Sharing Agreement be concluded between John Arua, Abraham Tatagu, Baura Anton’s relatives and others they may wish to include in this Agreement before MCC (Project Company) pays land use monies; and failing that the sharing of benefits will be as follows: John Arua – 75%; Abraham Tatagu – 20%; Baura Anton & Jennifer Baure – 5%.
  5. Declares that the Commission has no mandate to make decision on any traditional or barter trade relations between the Guyebi Nogoi Omowo people and the Imuruba Clan.

[SIGNED] [SIGNED] [SIGNED]

............................. .................................... ...........................

JOSEPH GABUT BENEDICT BATATA KUTT PAONGA

Chairman & Commissioner Commissioner

Commissioner


APPEAL


4. The appellants have appealed under s 38(1) (right of appeal) of the Land Titles Commission Act, which allows a “person aggrieved by a decision of the Commission” to appeal to the National Court within 90 days after the decision. Section 38(2) provides the grounds on which an aggrieved person can appeal:


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.


5. The notice of appeal filed in November 2013 evidently contained 13 grounds of appeal, numbered 1 to 13. No one, including the appellant’s counsel Mr Tabai realised until I pointed it out at the hearing of the appeal more than ten years later (the cause of the delay is another story, but it’s not relevant for now) on 29 April 2024, that four grounds of appeal were missing. Grounds 3, 4, 5 and 6 (occupying one page) are not in the original notice of appeal in the court file and they are missing from the appeal book.


6. Mr Tabai somehow had a copy of them and his written submissions included them, but when counsel for the second and fifth respondents Mr Phannaphen said he had not seen them and objected to those grounds being relied on, I could hardly allow them to be argued. I ruled that they be disregarded. This meant that there were nine grounds of appeal.


7. The original numbering has been preserved and the grounds of appeal can be summarised as follows:


1 Commissioner Joseph Gabut was not properly appointed as a Commissioner as he resigned to contest the Wewak Open seat in the 2012 general election.


2 Commissioner Benedict Batata was not properly appointed as a Commissioner as he was only appointed an acting Commissioner and was not expressly authorised to take part in the decision.


3 to 6 disregarded.


7 The Commission exceeded its jurisdiction when making decisions on benefit sharing.


8 The Commission’s finding of fact that people were living in Kurumbukari despite water problems was wrong and misconceived.


9 The Commission’s acceptance of Imuruba Clan’s evidence that they did not know the appellant’s clan was wrong and misconceived.


10 The Commission’s acceptance of a purported anthropological report done for Highlands Pacific in 1992 was contrary to the principles of natural justice.


11 The Commission’s acceptance of a purported report by Murray Dickson in 1973 to find that Imuruba Clan existed on Kurumbukari was incorrect.


12 The Commission made a procedural error by allowing the disputing parties to make final submissions and then inspecting the land and this meant that the hearings of the Commission were conducted in a manner contrary to natural justice.


13 The Commission’s decision was against the weight of the evidence.


GROUND 1: COMMISSIONER GABUT NOT PROPERLY APPOINTED


8. The appellants argue that Commissioner Joseph Gabut was “not properly appointed” as he resigned from the Commission in 2012 to contest the Wewak Open at the 2012 general election.


9. This is an argument that could have formed part of an application for leave for judicial review of the Commission’s decision, which could and should have been made before the Commission gave its decision in 2013. It is an abuse of process to raise it now, more than ten years after the decision, as part of an appeal against the Commission's decision. I reject this ground of appeal.


GROUND 2: COMMISSIONER BATATA NOT PROPERLY APPOINTED


10. It is argued that Commissioner Batata only had an acting appointment and was not authorised to hear disputes that were heard by the Ramu Nickel-Cobalt Special Land Titles Commission. The argument is different to ground 1, but it is a similar sort of argument, which is a challenge to the jurisdiction of the Commission. I dismiss it for the same reasons ground 1 was given short shrift. It is an argument that could and should have been raised in an application for leave for judicial review. It is an abuse of process to raise it now as part of an appeal on the merits, ten years after the event.


GROUNDS 3 TO 6: DISREGARDED


11. These grounds are disregarded for the reasons explained above.


GROUND 7: EXCESS OF JURISDICTION BY DECIDING BENEFIT SHARING


12. Mr Tabai submitted that the Commission exceeded its jurisdiction when it set out the percentage of benefits some of the disputing parties would receive from the land. He submitted that the Commission’s function was to determine the question of ownership of the land and who had the right to use it, but it was not required, and it had no power, to decide on how benefits generated by the land should be distributed.


13. I heard the same sort of argument in Mathew Denguo Tigavu v Gamo Koito (2016) N6170. It is a proper argument as the power to decide on how benefits would be distributed is not expressly conferred on the Commission. Its jurisdiction is primarily set out in s 15(1) (determination of disputes) of the Land Titles Commission Act, which states:


The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims.


14. Though the Commission is given no express power to determine the question of distribution of benefits, I consider that its “jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of ... land” is broad enough to encompass determination of the question of distribution of benefits. A dispute as to distribution of benefits is a dispute concerning ownership of customary land as it is a dispute incidental to, and part-and-parcel of, the dispute as to ownership.


15. A determination as to distribution of benefits flows so naturally from a determination of rights of ownership, possession and use of the land as to be properly regarded as forming part of such a determination, and therefore within the jurisdiction of the Commission. I therefore dismiss ground 7.


GROUND 8: WRONG FINDING OF FACT RE PEOPLE LIVING IN KURUMBUKARI


16. The appellants argue that the Commission got the facts wrong when they concluded that people were living at Kurumbukari despite the water shortages. It is argued that there was overwhelming evidence that the second respondent’s clan was for generations living well away from the exploration and mining lease areas and some of them only moved in when exploration began (and that was only to stake a claim for getting benefits from the mine).


17. This seems to be an argument that the finding of fact that the Commission made regarding the long-term presence on SML 8 land of Imuruba Clan leaders since World War II (1939 to 1945) and the Imuruba Clan existing long before the 1970s was against the weight of the evidence.


18. The argument has been made with little substance. To prove that the Commission’s decision was against the weight of the evidence it is necessary for an appellant to:


19. I find that the appellants have not met those requirements. They have not:


20. I am persuaded by the submissions of Mr Phannaphen that the Commission’s decision was in accordance with the weight of the evidence. Ground 8 is dismissed.


GROUND 9: WRONG ACCEPTANCE OF IMURUBA CLAN’S EVIDENCE


21. The argument in ground 9 is very similar to ground 8 and I deal with it the same way. The Commission gave clear, coherent and detailed reasons for preferring the evidence of the Imuruba Clan to the evidence of other disputing claimants. The findings of fact are not against the weight of the evidence. Ground 9 is dismissed.


GROUND 10: ACCEPTANCE OF ANTHROPOLOGICAL REPORT CONTRARY TO NATURAL JUSTICE


22. The Commission in its reasons for decision referred to and relied on an anthropological report done for Highlands Pacific in 1992, which found that Imuruba Clan had existed for many years and had a long-term connection with the Imuruba land. The appellants argue that they were not served with a copy of the report and the report was not mentioned by the Commission in its public hearings and that they were deprived of the opportunity of challenging the report and the bases of the report’s conclusions.


23. I reject this argument. There is simply no evidence to support it. There was no transcript of the Commission's proceedings before the court for the purposes of this appeal. If the appellants want to argue a denial of natural justice they have to provide a factual basis for it. So the argument cannot succeed.


24. Besides that, the anthropological report is referred to in the reasons for decision. It is hard to believe that it was not mentioned in the public hearings. I cannot accept that the appellants were denied the opportunity to make submissions on it. Furthermore, it is one report that was taken into account with all the evidence that was carefully weighed and deliberated on. The Commission would, it appears, have made the same decision even if the anthropological report had not been before it. Ground 10 is dismissed.


GROUND 11: INCORRECT ACCEPTANCE OF DICKSON REPORT


25. The argument here is similar to that in ground 10. The appellants say that they were not served with the Murray Dickson report and did not have the opportunity to test it or make submissions on it. This argument fails for the same reasons ground 10 failed: it has no factual basis. Ground 11 is dismissed.


GROUND 12: PROCEDURAL ERROR RE LAND INSPECTION


26. The appellants argue that the Commission “reversed its procedure when allowing the parties to make final submissions first and inspecting the sites later thereby amounting to unfairness”, which meant the hearing was conducted contrary to natural justice and was wrong in law.


27. This argument must be rejected for three reasons. First, as with grounds 10 and 11, there is no evidence that the Commission heard submissions first and inspected the land later. No factual basis for this ground of appeal has been provided.


28. Secondly, though the Commission was obliged to inspect the land, it was under no obligation to inspect it in the way contended for by the appellants. Section 29A of the Land Titles Commission Act provides:


(1) Subject to Subsection (2), the Commission shall inspect the relevant land during the hearing of a matter at first instance.


(2) The duty imposed by Subsection (1) may be discharged by assessors selected under Section 10C(2) inspecting the land and reporting to the Commission on the inspection.


29. I am not convinced, even if the inspection was conducted in the way the appellants say it was, that s 29A was breached.


30. Thirdly, even if s 29A were breached, how was that unfair to the appellants? Unfairness might be established if it were shown that only the second respondents and no other disputing parties accompanied the commissioners on their inspection. But there is no evidence of that; and it is not even alleged that that is what happened. Ground 12 is refused.


GROUND 13: DECISION AGAINST THE WEIGHT OF THE EVIDENCE


31. This is a bland assertion that the Commission’s decision was against the weight of the evidence. No other details are given in support of that assertion. It is not a proper ground of appeal. Ground 13 is dismissed.


CONCLUSION


32. All grounds of appeal have been dismissed. The appeal must be dismissed. The Commission’s decision will be affirmed. Costs will follow the event.


ORDER


33. It is ordered that:


(1) The appeal is dismissed.

(2) The decision under appeal, being the decision of the Ramu Nickel-Cobalt Project Special Land Titles Commission of 12 August 2013 in the matter of the dispute over land known as “Imuruba”, Special Mining Lease 8, Block 1, Kurumbukari, is affirmed.

(3) Any interim orders staying the Commission’s decision are dissolved.

(4) The appellants will pay the second and fifth respondents’ costs of the appeal on a party-party basis, which shall if not agreed be taxed.

(5) The file is closed.

________________________________________________________________
Tabai Lawyers: Lawyers for the Appellants
Lhyrn Lawyers: Lawyers for the Second & Fifth Respondents

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