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Aiyen v Kalayen [2025] PGNC 175; N11303 (21 May 2025)

N11303

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 333 OF 2024

NICK AIYEN as Block Executive for SML06, Block 39 – Winbuo and member of Lamatlik Clan, on behalf of himself and for the Lamatlik Clan, Lihir, New Ireland Province
Plaintiff

V

PETER AROM KALAYEN of the Katromolam Clan, Lihir, New Ireland Province
First Defendant

JACOB POPUNA in his capacity as the Public Curator and the Public Trustee of Papua New Guinea
Second Defendant

PELIS VATNABAR in his capacity as Lihir Project Coordinator, MINERAL RESOURCES AUTHORITY
Third Defendant

MINERAL RESOURCES AUTHORITY
Fourth Defendant

WAIGANI: KARIKO J
12, 21 MAY 2025

PRACTICE & PROCEDURE – determination of separate questions, O10 r 21 National Court Rules – jurisdiction of the Public Trustee as administrator of deceased’s estate regarding customary land – status of customary land subject of a special mining lease

The Public Trustee as administrator of the estate of a deceased who died intestate requested the Mineral Resources Authority to take steps to recognize the deceased and his clan as the correct landowners of customary land the subject of a special mining lease and freeze monetary benefits due for payment to landowners. The plaintiff whose clan was receiving the benefits filed proceedings to, among other things, have his clan declared as the rightful owner of the disputed land and declare that the Public Trustee has no jurisdiction to administer estate which is customary land. The court ordered for the determination of questions, separate from other questions for trial, relating to jurisdiction of the Public Trustee as administrator regarding customary land.

Held

(1) The devolution of customary land or of rights in, over or in connection with customary land of a person who has died intestate are not matters that an administrator including the Public Trustee is authorised by law to administer.

(2) The nature or status of customary land is not converted where a special mining lease is granted over the land – it remains customary land.

Cases cited
MAPS Tuna Ltd v Manus Provincial Government (2007) SC857
Timothy Lim Kok Chuan v Simon Goh Say Beng and Another (2004) N2753

Counsel
E Sasingian for the plaintiff
D Taru for the second defendant
No other appearances

1. KARIKO J: In these proceedings, the plaintiff disputes the withholding by the Lihir mines developer Newmont Corporation (Newmont) of monetary benefits due to his clan as landowners of a special mining lease (SML) – SML06, Block 39 Winbuo on Lihir Island, New Ireland Province (SML06).
   
2. The action by the Newmont resulted from instructions by the Mineral Resources Authority (MRA) based on a letter from the Public Trustee (formerly the Public Curator). That letter advised that:
   
   • (1) the Public Trustee was granted letters of administration by the National Court in respect of the estate of one Camilus Kalayan (deceased), and
   • (2) Peter Arom Kalayan, a son of the deceased, alleged that his father was the rightful customary owner of the land comprising SML06, but
   • (3) other persons, including the plaintiff, fraudulently claimed ownership and had been wrongfully receiving the monetary benefits for SML06 for the past 25 years from the mine developer, and
   • (4) the fraud had been reported to the Police,
     

and further instructed that:

(5) MRA take steps to correct the error and recognize Peter Arom Kalayan as the representative of the rightful landowner of SML06, and
(6) freeze the bank accounts where the royalties and compensation are paid into.

3. On 10 January 2025, I ordered as interim relief that Newmont is restrained from acting on the direction of MRA regarding the freezing of the bank accounts.
   
4. On 15 April 2025 when the matter was called for trial, the second defendant formally sought an adjournment principally to allow him to seek discovery of documents in the custody of various authorities and organizations including MRA, Newmont, the Lands Commission of PNG, the Magisterial Services of PNG, and the President of the Nimarmar LLG for purposes of obtaining information which may be relevant to the alleged fraud.
   
5. After hearing from counsel, I stated two questions whose answers I consider may be decisive to the fundamental issue in this case – whether the Public Curator (now the Public Trustee) has jurisdiction to administer benefits due from the special mining lease?
   
6. I adopted this course pursuant to O10 r 21 of the National Court Rules.
   
7. Hereon, I properly refer to the second defendant as the Public Trustee as the name “Public Curator” changed to “Public Trustee” by virtue of s 1 of Public Curator (Amendment) Act 2020.
   

QUESTIONS

8. Order 10 rule 21 allows for an order to be made to have certain issues decided before trial. This procedure may be taken where a preliminary question of fact or law if answered in one way might dispose of the proceedings or narrow the issues for trial. See Timothy Lim Kok Chuan v Simon Goh Say Beng and Another (2004) N2753, approved in MAPS Tuna Ltd v Manus Provincial Government (2007) SC857.
   
9. The questions stated are:
   
   • (1) In the administration of a deceased’s estate, does the Public Trustee have jurisdiction to administer customary land as a part of the estate?
     
   • (2) In the administration of a deceased’s estate, does the Public Trustee have jurisdiction to administer customary land now regarded as a Special Mining Lease ( SML) as part of the estate and what is the interest in the SML?
     
10. Other questions to be tried and resolved pursuant to the plaintiff’s originating summons include whether the freezing of the bank accounts was proper and lawful, and whether the first three defendants are guilty of contempt of a Supreme Court Order of 15 September 2004.
    

SUBMISSIONS

11. The plaintiff submitted that the Public Trustee powers as administrator of the estate of a deceased person is governed by the Wills Probate & Administration Act and s 2 of the Act states that the Act does not apply to customary land. Further, while a SML may be granted over customary land, the land remains customary land.
    
12. The Public Trustee responded that he merely referred a complaint on behalf of a beneficiary to the estate to the MRA regarding ownership of SML06. It was alleged that the land is owned by the beneficiaries of Camilus Kalayan (deceased) and not the plaintiff and his Lamatlik Clan who had claimed ownership through fraud. The Public Trustee also submitted that the disputed land ceased to be customary land upon its conversion to a SML.
    

CONSIDERATION

13. The Public Trustee was granted letters of administration in this case pursuant to s 10(1)(c) of the Public Curators Act on the basis that administration was not applied for within three months after the death of Camilus Kalayan who died intestate.
    
14. The powers and duties of the Public Trustee as an administrator are found in the Wills Probate and Administration Act whose preamble states that its an Act relating to, among others, the devolution and administration of the estates of deceased persons. Relevantly however, s 2 of the Act states:
    

Nothing in this Act applies to or in relation to customary land.

15. This prohibition is restated in s 35G of the Act. By virtue of s 35G(1) the Public Trustee is entitled to distribute the estate of a deceased person who has died intestate but s 35G(4) states:
    

Nothing contained in this section shall be construed as authorizing a Distributor to deal with customary land, and the provisions of this section shall be read and construed accordingly.

16. As to who is entitled to the estate of a person who dies intestate, s 35E(2) provides:
    

A District Officer or other person who, in the opinion of the Public Curator is competent to certify customary entitlements where a person dies intestate, shall certify the persons entitled to the estate of that deceased person.

17. To my mind, the provisions of the Wills Probate and Administration Act clearly show that the legislation intended that the devolution of customary land or of rights in, over or in connection with customary land of a person who has died intestate are not matters that an administrator including the Public Trustee is authorised by law to administer.
    
18. Under the Mining Act, a SML may be issued to an exploration licence holder over the land, the subject of the exploration licence; s 33(1). A development forum is first convened to consider the views of the persons and authorities the Minister believes will be affected by the grant of the SML and includes the landholders of the land; s 3. A “landholder” is defined under s 2(1) of the Act to include the owners of customary land. Pursuant to s 154, the holder of a tenement, which is also defined under s 2(1) to includes a special mining lease, shall pay compensation to a landholder for using the land for mining operations.
    
19. The effect of these provisions in simple terms is that pursuant to a SML where land (if customary land) is leased to a mining developer for mining operations, the developer shall in return pay compensation to the landholder (the owners of the customary land). There is nothing in the Mining Act to suggest the nature or status of the land is converted. It remains customary land.
    

CONCLUSION

20. The answers to the stated questions are in the negative, meaning that the Public Trustee does not have jurisdiction to administer customary land as a part of the estate of a deceased person, including where the land is subject to a special mining lease.
    
21. The substantive trial will proceed for the determination of other relevant issues mentioned in [10] but, to be clear, will not include the fraud alleged by Peter Arom Kalayan.

________________________________________________________________
Lawyers for the plaintiff: Sasingian Lawyers
Lawyer for the second defendant: In-house lawyer, Public Trustee’s Office