Gador Salub v Makurai Luedi

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 November 2016
• Citation: (2016) N6519
• Court: National Court
• Year: 2016
• Judgement Number: N6519

Full : CIA No 115 of 2013; Gador Salub for himself and on behalf of Goriba Clan of Rai Coast Madang Province v Makurai Luedi and Urus Luedi and Puseir Clan of Rai Coast, Madang Province and Joseph Gabut, Benedict Batata & Kutt Paonga, comprising The Ramu Nickel/Cobalt Special Land Titles Commission and Ramu Nickel/Cobalt Special Land Titles Commission and the Independent State of Papua New Guinea (2016) N6519

National Court: Cannings J

Judgment Delivered: 11 November 2016

N6519

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 115 OF 2013

GADOR SALUB FOR HIMSELF AND ON BEHALF OF

GORIBA CLAN OF RAI COAST, MADANG PROVINCE

Appellant

V

MAKURAI LUEDI AND URUS LUEDI AND

PUSEIR CLAN OF RAI COAST, MADANG PROVINCE

First Respondents

JOSEPH GABUT, BENEDICT BATATA & KUTT PAONGA, COMPRISING THE RAMU NICKEL/COBALT

SPECIAL LAND TITLES COMMISSION

Second Respondents

RAMU NICKEL/COBALT SPECIAL LAND TITLES COMMISSION

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

Madang: Cannings J

2015: 11 August

2016:11 November

APPEALS – appeal against decision of Special Land Titles Commission regarding ownership of customary land – Land Titles Commission Act 1962, Section 38 (right of appeal) – whether Commission’s decision was against the weight of the evidence.

The appellant appealed to the National Court against the decision of a Special Land Titles Commission declaring that four blocks of customary land were exclusively owned by the first respondents’ clan. The appeal was filed under Section 38 of the Land Titles Commission Act on the ground that the decision was against the weight of the evidence.

Held:

(1) To prove that the Commission’s decision was against the weight of the evidence it is necessary for an appellant to: put before the National Court the evidence that was before the Commission, show how the Commission misconstrued the probative value of the evidence or drew unjustified inferences or failed to draw reasonable inferences from the evidence, and show why the decision appealed against is wrong and cannot be supported by the evidence or by any proper inferences to be drawn therefrom or from the relevant law (Re Wangaramut (No 2) [1969-70] PNGLR 410).

(2) The appellant met those requirements. The decision was against the weight of the evidence, in that: too much weight was given to a 1995 Madang Local Land Court decision; too much weight was given to an October 2009 land mediation; insufficient weight was given to registration of the appellant’s incorporated land group; the Commission made strong and conclusive findings favouring the first respondents on the basis of conflicting evidence; and insufficient weight was given to evidence of the appellant’s clan’s recent possession of the land.

(3) The appeal was upheld. As the Court was apprised of the relevant facts and law, it was unnecessary to remit the case for further hearing before the Commission. The justice of the case required that the Court substitute its decision for the decision of the Commission.

(4) Decision: (a) the land is jointly owned on a 50/50 basis by the appellant’s clan and the first respondents’ clan; (b) benefits derived from the land shall be distributed as follows: (i) appellant’s clan, 50%, (ii) first respondents’ clan, 50%.

Cases cited:

The following cases are cited in the judgment:

Application of Ambra Nii on behalf of Toisap Clan [1991] PNGLR 357

Gima Raka v Philip Maimu (2013) N5200

John Anis v Nabura Morissa (2011) N4307

Re Hides Gas Project Land [1993] PNGLR 309

Re Wangaramut (No 2) [1969-70] PNGLR 410

Stabie Gason v Mangu Clan & Special Land Titles Commission (2016) N6163

Tawindi Clan v Kaimari Clan (1998) N1775

APPEAL

This was an appeal by persons aggrieved by a decision of a Special Land Titles Commission as to ownership of customary land.

Counsel:

G Pipike, for the Appellant

B Tabai, for the First Respondents

S Maliaki, for the second, third and fourth Respondents

11th November, 2016

1. CANNINGS J: Gador Salub, for himself and on behalf of Goriba (also known as Ato) Clan, appeals against the decision of the Ramu Nickel-Cobalt Special Land Titles Commission of 31 August 2013 concerning customary ownership of an area of land at and around Ato village, Ileg Local-level Government area, Rai Coast District, Madang Province. The land is on the route of the slurry pipeline for the Ramu Nickel-Cobalt Project. The pipeline runs from the mine site at Kurumbukari in the mountainous area of Usino-Bundi District to the refinery and port at Basamuk Bay, Rai Coast District.

2. The disputed land is known generally as “Ato land”. It is formally described as Blocks 650, 651, 652, 699 and 920, Mining Easement 75.

DECISION UNDER APPEAL

3. The Commission decided on 31 August 2013 that:

• the first respondents, Makurai Luedi and Urus Luedi and Puseir Clan, are the traditional owners of, and have exclusive ownership rights to, Blocks 650, 651, 699 and 920;

• the appellant’s clan, Gador Salub and family and Goriba Clan are the traditional owners of, and have exclusive ownership rights to, Block 652.

4. The full text of the decision, which was supported by a 13-page statement of reasons, reads:

The Commission:

1) Declares and orders that Puseir Clan has exclusive land rights over Blocks 650, 651, 699 and 920 land in Mining Easement No 75 (Slurry Pipeline) of the Ramu Nickel/Cobalt Project;

2) Declares and orders that Salub Family/Ato clan has exclusive land rights over Block 652 land in Mining Easement No 75 (Slurry Pipeline) of the Ramu Nickel/Cobalt Project.

3) Directs that the benefit sharing arrangements agreed by the forefathers of the Ato village and endorsed by the Madang Local Land Court shall apply to the benefits paid by the Ramu Nickel/Cobalt Project in relation to the Blocks 650, 651, 652, 699 and 920 land in Mining Easement No. 75 (Slurry Pipeline).

4) Directs that any disputes relating to sharing of benefits shall be referred to mediation or the relevant Village Court for resolution.

5. In reaching that decision, the Commission preferred the evidence put before it by Urus Luedi of Pusier clan, the first respondents, over the evidence presented by the appellant, Mr Gador Salub.

6. Mr Luedi’s evidence was that Pusier was the oldest known landowning clan for the Ato land and that their ancestry dates back many generations to a man called Tumu Pusier. Pusier Clan’s enemies put poison in the river and chased the clan members away to another area of land called Aluia, where they have lived for a long time. However, Ato land still belonged to Pusier Clan. According to Mr Luedi, the appellant, Mr Salub, only recently separated himself from Pusier Clan to get benefits from the Ramu Nickel/Cobalt project. Mr Luedi’s evidence was corroborated by another witness, Pendi Samabu, who said he was not a Pusier clan member but he lives at Ato village and was told the same story by his grandfather.

7. The evidence of the appellant, Mr Salub, was opposite that of Mr Luedi. Mr Salub testified that his clan, Goriba, was not part of the Pusier Clan. The ancestry of the Goriba Clan went back at least seven generations to a man called Waloka. Goriba Clan was a brother clan in relation to Pusier Clan. They were separate. Mr Salub’s evidence was corroborated by the evidence of Malabok Natori, of Uwong Clan. Mr Salub gave evidence that when the Lae-Madang Highway was built in 1977, his father, Salub Bakuai, as representative of Goriba Clan, was the recipient of the compensation payments and that everyone knew he was the landowner.

8. In preferring the evidence of the first respondents to the appellant’s evidence, the Commission took account of eight considerations:

(1) Madang Local Land Court decision. The Commission referred to a decision of the Madang Local Land Court, which appears to be a reference to a decision of that Court dated 22 June 1995. The Commission noted that:

The traditional benefit sharing agreements according to blocks earmarked by the ancestors for each clan or sub-clan were not questioned or challenged by both disputants.

(2) Mediation resolution. The Commission referred to a land mediation that took place in October 2009. According to the Commission the land mediators decided that Pusier is the landowner clan:

There is lack of clarity as to why Ato or Goriba was not mentioned in the mediation report but there is clear evidence that Gador Salub was present but he did not want to defend his rights because of fear of other Ato village people. This suggests that he was not confident of his rights as the landowner because if he was, he would have fought for his rights fearlessly.

(3) Ato (Goriba) Incorporated Land Group. The Commission noted that Mr Salub and Goriba Clan had arranged incorporation of an ILG but was of the view that that was of no relevance in determining the question of customary ownership of the land:

The incorporation of a land group does not confer land title nor does it pre-empt the decision of the Commission. … The Commission is required to review all evidence to decide on land ownership of the disputed land even though the...