Donigi v The State

• Jurisdiction: Papua New Guinea
• Citation: [1991] PNGLR 376
• Date: 07 November 1990
• Court: National Court
• Year: 1991

National Court: Brown J

Judgment Delivered: 7 November 1990

1 Locus standi—appropriate parties—ripeness of issue for decision must first be found before Court looks to see whether constitutional issue arises—plaintiff not a party with automatic right of referral—Constitution s57—enforcement of guaranteed rights and freedoms—Constitution s19(3)—prescribed authority may bring issue to Supreme Court for determination

___________________________

Brown J: This motion seeks that the plaintiff's proceedings be struck out. The plaintiffs originating summons seeks declarations including declarations, in relation to the unconstitutional nature of particular sections of the Mining and Petroleum Acts, as they purport to affect ownership in gold minerals helium or petroleum found in or under land owned by the plaintiff.

The State says the plaintiff lacks standing. It has filed an affidavit by the Acting State Solicitor, Mr Zachary G Gelu who also says the plaintiff lacks sufficient interest in the proceedings. He says that in these particular circumstances the plaintiff even as a citizen and landowner has no locus standi. He also is not an authority enumerated in s19(3) of the Constitution. Further in the absence of gold, minerals or petroleum there exists no actual or contingent matter in issue between the parties.

The plaintiff on the other hand argues that property includes tangible and intangible rights. He claims a right to that which may or may not be under his land. This is sufficient interest in property to satisfy the court.

He is the President of the PNG Law Society a body vitally interested in the Application of the law in Papua New Guinea and he is personally involved in political and social enquiries which relate to the general issue of land holder rights and interests. His personal involvement is of long standing, and is genuine.

He has presented papers at development seminars and has been extensively reported by the media when he has made statements in relation to the subject. Since the phrase has been used in cases reported both here and abroad, I should say that I find he is not a "busy body," as somebody inter meddling in affairs of no consequence to him.

The plaintiff points to the Supreme Court (SCR No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265) as supporting his claim to locus standi. He is a citizen and has a genuine interest in the proceedings before the court. He says this is a challenge to the legislative power to make laws relating to mines of gold and petroleum found in or under his customary land, since such laws are at variance with his Constitutional right to property.

He is a member of a land holding clan in the East Sepik. The Supreme Court Reference is authority for the principle he says that every citizen has standing.

The plaintiff then embarked shortly on an address which related more to the merits of the application, stating that the court has a duty to protect and uphold a constitutional right which has been infringed. The provision of the Constitution is found at s53—"Unjust Deprivation of Property". I should refer the question about infringement of my own volition pursuant to s57—Enforcement of Guaranteed Rights and Freedoms, to the Supreme Court that latter section of the Constitution, does, as Mr Gelu for the State says, rather beg the question in this instance, whether there has been unjust deprivation of property. There cannot be in fact, for gold for instance, has not been shown to exist. There are no mines of gold or other minerals on the plaintiffs land nor so far as I am aware is there petroleum.

I am left rather, with consideration of factors relevant in proceedings seeking declarations, factors which includes that of "locus standi". But before I identify and discuss those factors, I wish to make some general points.

Mr Donigi's claim is as a customary landowner of a particular piece of ground, one which is known as "Dupulum" of Lowan village, East Sepik Province.

He has deposed to the importance he places on the Balaebus Clan relationship and has described shortly, but by way of illustration, his links with his land.

I am satisfied he is a "traditional landholder". It is conceded that at this time no mines or minerals are on or known to be under his land nor do any petroleum licences affect the land.

Land tenure of customary land in Papua New Guinea is like a many faceted jewel, giving a different face, from every angle. The variances are multiplied for each clan may argue that their customary land holding relationships differ ever so slightly to those of their neighbours, (giving such custom its peculiar many faceted effect) while clans at opposite ends of the country, may not have many similarities at all. But the thread in this diversity is the emphasis on the interacting social relationship. I particularly have regard to Thomas G Harding's monograph on the subject of land tenure (Encyclopaedia of Papua New Guinea Melbourne University Press 1972 Ed Peter Ryan; Vol 2) where at 606 he says:

"Land & Kin Groups

The societies of New Guinea are familistic or kin–based. They lack the highly specialized land use, market system, and formal politico–legal institutions that give form and substance to property in land characteristic of Anglo–American society. Both economic and political processes may be said to be embedded in social relationships, usually of a kin or quasi–kinship nature. Property relations in general, and those involving land in particular, are attributes of these social relationship. It is accurate to say that Ôprinciples of land tenure grow out of the social relations of the people who use the land'. The social system determines land tenure; or rather, the latter is a part of the former. Since principles of land tenure are not codified, and since in disputes there was formerly no agency independent of and superior to the litigants themselves that was charged with preserving and interpreting principles, customary rules are subject, to a marked degree, to the pressure of circumstances and dominant interests.

The actual forms or types of land that are the objects of proprietary interest are determined largely by patterns of land use, and these flow from the technology–environment relationship. Thus, as the technical–environmental complex is varied—between, let us say, sago processing, taro growing in lowland rain forest, yam cultivation in savannah, or fishing—forms of tenure will vary also."

I find echoes of that general thesis in the plaintiff's affidavit filed in support. He says for instance:

"10. In my custom, land includes everything on, in or under the soil, subject however that I may give permission to a...