Re Hides Gas Project Land: In The Land Titles Commission Application No 90/101; In the Matter of an Order by The Governor-General Acting on Advice of The National Executive Council, under s4 (3) of The Land Disputes Settlement Act, in Respect of a Dispute over Land Delineated In Portions 150C to 163C (Inclusive); In The Milinch Of Karius (SE) Known Generally as The Hides Gas Project; and In the Matter of An Application By The Minister for Lands Under s74 Of The Land Act In Respect Of Portions 159C To 163C (Inclusive) Milinch of Karius (SE) Known As Hides Gas Project. The Tuguba Tribe v The Hiwa Tribe Clans of: Kopiye, Arua, Topani, Wita, Pina and Tuguba Pepe [1993] PNGLR 309

• Jurisdiction: Papua New Guinea
• Judge: Amet J
• Judgment Date: 25 July 1991
• Citation: [1993] PNGLR 309
• Court: Land Titles Commission
• Year: 1991

Full Title: Re Hides Gas Project Land: In The Land Titles Commission Application No 90/101; In the Matter of an Order by The Governor-General Acting on Advice of The National Executive Council, under s4 (3) of The Land Disputes Settlement Act, in Respect of a Dispute over Land Delineated In Portions 150C to 163C (Inclusive); In The Milinch Of Karius (SE) Known Generally as The Hides Gas Project; and In the Matter of An Application By The Minister for Lands Under s74 Of The Land Act In Respect Of Portions 159C To 163C (Inclusive) Milinch of Karius (SE) Known As Hides Gas Project. The Tuguba Tribe v The Hiwa Tribe Clans of: Kopiye, Arua, Topani, Wita, Pina and Tuguba Pepe [1993] PNGLR 309

Land Titles Commission: Amet J

Decision Delivered: 25 July 1991

PAPUA NEW GUINEA

[LAND TITLES COMMISSION]

IN THE LAND TITLES COMMISSION APPLICATION NO. 90/101

IN THE MATTER OF AN ORDER BY THE GOVERNOR-GENERAL ACTING ON ADVICE OF THE NATIONAL EXECUTIVE COUNCIL, UNDER SECTION 4 (3) OF THE LAND DISPUTES SETTLEMENT ACT, IN RESPECT OF A DISPUTE OVER LAND DELINEATED IN PORTIONS 150C TO 163C (INCL.) IN THE MILINCH OF KARIUS (SE) KNOWN GENERALLY AS THE HIDES GAS PROJECT

AND

IN THE MATTER OF AN APPLICATION BY THE MINISTER FOR LANDS UNDER SECTION 74 OF THE LAND ACT IN RESPECT OF PORTIONS 159C TO 163C (INCL.) MILINCH OF KARIUS (SE) KNOWN AS HIDES GAS PROJECT

BETWEEN: THE TUGUBA TRIBE

AND: THE HIWA TRIBE

CLANS OF: KOPIYE

ARUA

TOPANI

WITA

PINA

TUGUBA PEPE

IN THE LAND TITLES COMMISSION APPLICATION 90/101

Amet J (Commissioner)

25 July 1991

CUSTOMARY LAW — Title to land — Jurisdiction of land court — Special jurisdiction of Land Titles Commission.

EVIDENCE — Ancestral genealogy — Traditional evidence.

REAL PROPERTY — Title to land — Adverse possession — Effect on title — Ownership of land — Proof at customary law — Principles in the determination of ownership of land.

WORDS AND PHRASES — "adverse possession" of land.

Facts

A series of land disputes arose over the ownership of land within Hides Gasfield Project. The disputes were aggravated by the discovery of gas in the area and the payment of substantial sums by the developer. The Governor-General, acting on the advice of the National Executive Council, referred the matter for resolution under the Land Titles Commission Act. A judge of the National Court was appointed Land Titles Commissioner.

The respondent clans relied on their genealogy and traditional evidence as well as their occupation of the land at the date of the dispute whilst the complainant clans claimed as original owners and established this by ancestral genealogy and traditional evidence. The question addressed by his Honour was whether genealogy and ancestral evidence is conclusive of ownership in modern times.

Held

1. Genealogical ancestral history and the supportive landmark descriptions by names are not conclusive evidence of title.

2. In determining ownership of customary land regard must be had to numerous other intervening factors between the past and present time. These include adverse possession.

Books Referred To

RD Cooter, Issues in Customary Land Law (Port Moresby: INA, Discussion Paper No 39, 1989).

Editor's Note

The principles set out in this judgment have been adopted in a number of decisions of both the National Court and Land Courts. The editors are of the view that it is authoritative on the underlying law and should be published. The Supreme Court held in Re Goilanai No 2 [1976] PNGLR 120 that, where traditional accounts of land ownership varied, they must be tested against the evidence of recent and past occupation.

25 July 1991

AMET J: Commissioner. These are a series of land ownership disputes in relation to portions of land in the vicinity of Mt Tumbudu and Kuru village in the Tari District of the Southern Highlands Province, otherwise commonly known as the Hides Gasfield Project. Legal proceedings had been instituted by one of the disputing parties under the Land Disputes Settlement Act Ch 46 in the Local Land Court in Tari.

The Head of State, acting on the advice of the National Executive Council, was of the opinion that special circumstances existed that required the dispute to be settled under the Land Titles Commission Act. His Excellency the Governor-General, declared by notice in the National Gazette that the Land Disputes Settlement Act did not apply and further, by virtue of s 4 (3) of the same Act, ordered that the Land Titles Commission Act would apply and directed that a Commissioner be appointed to determine the ownership of the lands, the subject of the land dispute.

JURISDICTION

I was appointed by the Head of State, acting upon advice, as a Commissioner under the Land Titles Commission Act, with all the jurisdiction and powers of a Land Titles Commissioner. My appointment was by instrument published in the National Gazette.

VENUE

I conducted public hearings in the Tari District Court, by receiving both oral and documentary evidence.

INSPECTION OF LAND

I inspected the whole project land, both by air and on the ground. I was able to do an aerial inspection of the total project area and some of the specific landmarks, such as the well-heads, various river boundaries, the Girebo River source where the pipelines were to traverse, the Nogoli-Kuri road, the various villages, the plant site, the campsite, and the base camp. This was made possible by courtesy of the developers, British Petroleum, making available a helicopter. This was in the middle of the hearings.

At the conclusion of the evidence, I informed the disputing parties of my intention to inspect the land on the ground. They were not able to agree that there would be no trouble between them at the sites. Whilst the defendants were prepared to give me this assurance, the complainants were not able to. Consequently, I advised that I would simply visit — which I did by road — only to Kuru village, down to the plant site, and to the campsite.

It was not possible to do any more than drive along the main road. The land area was so large and terrain so thick and rugged that walking to inspect all the landmarks given evidence of would have taken weeks or months. I was fortunate to have been enabled to get a good overview of the land in dispute by air.

I chose not to attempt to inspect and or verify any of either party's evidence of landmarks supporting their claim to ownership, such as caves, ancestral grave sites, plants and trees, drains, and home sites. I will deal with the effect of these shortly.

THE DISPUTED LAND

The precise portions of land, the center of the dispute, include all the land now under development at the time of hearing. They are easily described in the following way:

1. The main project road from the Tari-Komo road into the main campsite, then to the plant site and Kuru village.

2. The main camp site and its water line easement.

3. The plant site and its water line easement.

4. The gas trunk pipeline easement from Girebo water source to the well heads.

All of these portions of land had been surveyed and work carried out on them in various stages, continuing with some interruption by parties to the disputes from time to time.

THE DISPUTING PARTIES

The parties disputing the different portions of land are diverse, but essentially the defendants involve those clans that have been identified as presently occupying the land and the complainants as being clans of the Tuguba Tribe now living in Komo.

The clans who are defendants were originally identified by land investigation patrols sent out by the Department of Southern Highlands Province, Local Government and District Services Branch, as the clans presently occupying and using the land. These were confirmed by evidence from representatives of the clans.

The defendant clans occupying the disputed land were identified as the owners of the land, and the State and the developers, British Petroleum, began to deal with them for the purposes of the various agreements that were necessary as well as the immediate payments of compensation for destruction of food crops and vegetation. These dealings brought about the dispute from the various clans of the Tuguba Tribe of Komo, who have claimed that they are the true and rightful original owners by custom.

The central thrust of the case for the complaint Tuguba Tribe clans, placing very strong reliance upon their genealogy, was that they were the original discoverers of the land in dispute and, although they were not actually physically residing on the land, nevertheless, the boundaries of mountains, rivers, streams, other landmarks and ancestral grave sites, all named by and after the Tuguba Tribal ancestors, point conclusively to the fact that the Tugubas were the first inhabitants of the land and, thereby, are the true owners by custom.

The Tugubas have described their genealogy as going back some 16 generations to the origin of man in the Tari-Komo District and, indeed, the Southern Highlands and part of Enga Province. They described numerous boundary...