Roderick Tovo Bibilo representing La Bale clan v Gerard Balbagara representing Okoromo clan, Boas Mauloso, representing Kabulubulu Le Bamusi clan, Paul Koasiro representing Gararua clan , Kua Koasiro representing Kabulubulu Le Bulea clan and Maiko Meledi representing Rosarosa clan (2008) N3291

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 March 2008
• Court: National Court
• Citation: (2008) N3291
• Docket Number: OS NO 200 OF 2006
• Year: 2008
• Judgement Number: N3291

Full Title: OS NO 200 OF 2006; Roderick Tovo Bibilo representing La Bale clan v Gerard Balbagara representing Okoromo clan, Boas Mauloso, representing Kabulubulu Le Bamusi clan, Paul Koasiro representing Gararua clan , Kua Koasiro representing Kabulubulu Le Bulea clan and Maiko Meledi representing Rosarosa clan (2008) N3291

National Court: Cannings J

Judgment Delivered: 25 March 2008

N3291

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 200 OF 2006

RODERICK TOVO BIBILO representing La Bale clan

Plaintiff

V

GERARD BALBAGARA representing Okoromo clan

First Defendant

BOAS MAULOSO representing Kabulubulu Le Bamusi clan

Second Defendant

PAUL KOASIRO representing Gararua clan

Third Defendant

KUA KOASIRO representing Kabulubulu Le Bulea clan

Fourth Defendant

MAIKO MELEDI representing Rosarosa clan

Fifth Defendant

Kimbe: Cannings J

2007: 12, 13, 20, 26 July,

10, 23 August

2008: 25 March

JUDGMENT

LAND – customary ownership – forestry – dispute about receipt of timber royalties – timber rights purchase agreement entered into with colonial administration – cancellation agreement – Local Land Court order – dispute about interpretation and application of agreements and order – declarations sought.

A number of clans have had a dispute over customary ownership of land, which is now generating timber royalties. A 40-year timber rights purchase agreement regarding the land was entered into with the colonial administration in 1968. Four clans, including the plaintiff’s clan, were party to that agreement. In 1986, those same clans entered into a cancellation agreement, which purported to remove their interest in the land and recognise the first defendant’s clan as the landowners. In 1995 the Local Land Court decided that the first defendant’s clan owned the land. In 2004 the Forestry Authority allowed logging on the land and royalties were paid to the first defendant’s clan, not to the plaintiff’s clan. The plaintiff commenced court proceedings with the aim of restoring legal recognition of his clan’s interest in the land so they can obtain a share of the timber royalties.

Held:

(1) The 1968 agreement was a valid and enforceable agreement made under the forestry law of the day and operates for 40 years.

(2) The 1986 agreement did not nullify the 1968 agreement as it was only a statement of intention and not self-executing. Furthermore the circumstances in which it was signed are uncertain and unsatisfactory, making it unenforceable.

(3) The 1995 Local Land Court decision has no effect on the 1968 agreement as none of the parties to the 1968 agreement were parties to the Local Land Court proceedings.

(4) The clans entitled to timber royalties are the four who are party to the 1968 agreement. No other clans, including the first defendant’s clan, have an entitlement. This is the situation until the date of expiry of the agreement, 26 November 2008.

(5) As to what happens after 26 November 2008, the matter is referred to the Provincial Land Disputes Settlement Committee, so the land may be declared a Land Mediation Area under Part III of the Land Disputes Settlement Act and proceedings under that Act expedited so that customary ownership and related issues are resolved by 26 November 2008.

Cases cited:

Fred Giram Dogmai v Job Sogasog CIA No 97 of 2006, 20.02.08

Lavu v Thompson & NBPOL, WS No 780 of 2005, 26.07.07

Mavu v Moto and Others (2005) N2879

Richard Maribu v Lae District Land Court & Siomngaivon Clan (2001) N2064

The State v Lohia Sisia [1987] PNGLR 102

Glossary

The following people and places are referred to in the judgment.

People

Abilimosi clan – one of four clans party to 1968 TRP

Abulubulu clan – one of four clans party to 1968 TRP

Anna Puli – plaintiff’s mother – Tovo Tolagu’s niece – plaintiff’s witness No 2

Augustine Saike – land mediator re 1986 agreement – 1st defendant’s witness No 2

Avusi Da’e – Paul Koasiro’s mother – signatory to 1968 TRP, Gararua clan

Boas Mauloso – 2nd defendant, Kabulubulu Le Bamusi clan

Bubu Landowners Association – group of people from Bubu claiming land ownership

Cletus Patewan – Gerard Balbagara’s son – 1st defendant’s witness No 4

Gararua clan – one of four clans party to 1968 TRP

Gerard Balbagara – 1st defendant, Okoromo clan – 1st defendant’s witness No 1

Gerard Gaivapia – aka Gerard Balbagara

Jack Reed – government officer who facilitated signing of 1968 TRP

Joe Voku – Local Land Court Magistrate – presided at 1995 hearing

Joe Wanpis – vice-chairman, Bubu Landowners Association

John Maleko – Rai Rosa’s husband

Kabulubulu clan – 2nd and 4th defendants’ major clan

Kabulubulu Le Bamusi clan – 2nd defendant’s clan

Kabulubulu Le Bulea clan – 4th defendant’s clan

Kormo clan – other name for 1st defendant’s clan

Kua Koasiro – 4th defendant, Kabulubulu Le Bulea clan

La Bale clan – one of four clans party to 1968 TRP – the plaintiff’s clan

Laubalil Amlau – forestry officer – 1st defendant’s witness No 5

Maiko Meledi – 5th defendant – representing Rosarosa clan

Malisa Malili – signatory to 1968 TRP – Abilimosi clan

Okoromo clan – 1st defendant’s clan – aka Kormo clan

Paul Koasiro – 3rd defendant, Gararua clan – 3rd defendant’s witness No 1

Penias Togeau – land mediator re Land Court proceedings – 1st defendant’s witness No 3

Peter Connell – forestry officer who suggested cancellation agreement be signed

Rai Rosa – Tovo Tolagu’s niece – John Maleko’s niece – sister of Anna Puli

Richard Allmark – government officer, facilitated 1968 TRP

Robin Moken – district officer, Bakada, 1986

Roderick Tovo Bibilo – plaintiff, La Bale clan – plaintiff’s witness No 1

Rosarosa clan – 5th defendant’s clan

Rovou Lapou – chairman, Bubu Landowners Association

S Vulu – Land Mediator – assisted Local Land Court in 1995 proceedings

Siola Leleulu – signatory to 1968 TRP – Abulubulu clan

Tovo Tolagu – signatory to 1968 TRP – plaintiff’s grandfather

Places

Bakada – place of forestry office, Bialla area

Bialla – major town in Nakanai area, WNB

Bubu – village in Bialla area – Paul Koasiro’s village

Gigifuna – village in Gula Gula area – Gerard Balbagara’s village

Gigipuna – same as Gigifuna

Gula Gula – the land in question

Hoskins – area within WNB

Karapi – village in Hoskins area – plaintiff’s place of residence

Kimbe – provincial capital, WNB

Mengen – area within Pomio district, East New Britain

Mt Bamusi – volcano inland from Gula Gula

Nakanai – area at north-eastern end of WNB – mountain range

Pomio – district within East New Britain

Soi – village in Bialla area

Sovula – village in Bialla area

Ubili – community centre, Ulamona

Ulamona – village in Bialla area

ORIGINATING SUMMONS

This was an originating summons in which the plaintiff sought a declaration about his clan’s entitlement to timber royalties.

Counsel

G Linge, for the plaintiff

B Tanewan, for the 1st defendant

P Koasiro, the 3rd defendant, in person

No appearance for other parties

1. CANNINGS J: This case concerns a dispute over ownership of customary land and who are the right clans to receive timber royalties. The land is called ‘Gula Gula’. It is a large tract of forest, 3,360 hectares (about 8,300 acres), in the Bialla area of West New Britain Province.

GRIEVANCES OF THE PLAINTIFF AND THE LA BALE CLAN

2. The plaintiff, Roderick Bibilo, represents a clan, La Bale, whose interest in Gula Gula was recognised many years ago when it, and three others, entered into a TRP agreement with the colonial administration. The agreement was signed on 26 November 1968 and was due to last for 40 years, until 26 November 2008.

3. Gula Gula did not generate any significant timber royalties until quite recently, in 2004, when logging recommenced after a lapse of many years. The La Bale clan has not received any of the royalties.

4. Two significant things have happened since 1968 resulting in La Bale no longer being recognised by the PNG Forestry Authority as customary owners.

5. First, a document which has come to be called a ‘cancellation agreement’ was signed on 10 January 1986. It arguably nullifies the interests in Gula Gula of the four clans who signed the 1968 agreement.

6. Secondly, in 1995 the Local Land Court made a declaration as to customary ownership of Gula Gula, which did not recognise La Bale.

7. Mr Bibilo has brought the current court proceedings with the aim of obtaining a declaration from the court restoring legal recognition of the La Bale clan’s interest in the land. He says that both the 1986 cancellation agreement and the 1995 Local Land Court decision should not be given effect. It is the original 1968 agreement which should, at least until 26 November 2008, govern which clans are entitled to receive royalties from Gula Gula.

THE DEFENDANTS’ POSITION

8. There are five defendants, representing a number of other clans claiming an interest in Gula Gula, but only two – the first and the third – have taken an active part in the case.

9. The first defendant, Gerard Balbagara, represents the Kormo (also known as Okoromo) clan. This clan was the major beneficiary of the 1986 cancellation agreement and the 1995 Local Land Court decision and has been receiving the bulk of the royalties since 2004. Mr Balbagara opposes the relief sought by Mr Bibilo. He says that both the cancellation agreement and the Local Land Court decision should be enforced.

10. The third defendant is Paul Koasiro, representing the Gararua clan. Though joined as a defendant Mr Koasiro...