Manuel Gramgari v Steve Crawford, General Manager and PNG Tropical Wood Products (2012) N4950

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 January 2013
• Court: National Court
• Citation: (2012) N4950
• Docket Number: WS NO 429 of 2011
• Year: 2012
• Judgement Number: N4950

Full Title: WS NO 429 of 2011; Manuel Gramgari v Steve Crawford, General Manager and PNG Tropical Wood Products (2012) N4950

National Court: Cannings J

Judgment Delivered: 30 January 2013

N4950

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 429 OF 2011

MANUEL GRAMGARI

Plaintiff

V

STEVE CRAWFORD, GENERAL MANAGER

First Defendant

PNG TROPICAL WOOD PRODUCTS

Second Defendant

Madang: Cannings J

2012: 22 November, 7 December,

2013: 30 January

ENVIRONMENTAL LAW – forestry – customary land – liability of person engaged in forest industry activities for alleged unlawful logging – Forestry Act – Environment Act – trespass

The plaintiff, a customary landowner, alleged that the defendants entered his land and without authority harvested timber, built a sawmill and engaged in other forest industry activities, causing environmental harm. He commenced proceedings against them, seeking damages in respect of three causes of action: breach of the Forestry Act 1991, breach of the Environment Act 2000 and the tort of trespass to land. The defendants argued that breaches of the two statutes relied on did not give rise to a cause of action in favour of an affected landowner and in any event were unproven, and as to trespass it was not a cause of action pleaded in the statement of claim and could not be relied on and was unproven.

Held:

(1) Breach of the Forestry Act was proven but did not give rise to a cause of action.

(2) Breach of the Environment Act was proven but did not give rise to a cause of action.

(3) Though the tort of trespass was not expressly pleaded in the statement of claim its elements were pleaded and the defendants could not reasonably say they were caught by surprise by its prosecution as a cause of action. The plaintiff proved the existence of its elements and established liability against the second defendant.

Cases cited

The following cases are cited in the judgment:

Cresseri and Korowi v Halla Resources Corporation [1985] PNGLR 294

Francis Mavu v Mathias Moto (2005) N2879

Gesring Gabing Bob v Stettin Bay Lumber Company Ltd (2008) N3440

Ibi Enei v Rimbunan Hijau Ltd (2011) N4402

Kuberi Epi v Turama Forest Industries Ltd (1998) N1761

Louis Medaing v Ramu Nico Management (MCC) Ltd (2011) N4340

Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Rafflin v Richard Gault Industries Pty Ltd [1998] PNGLR 394

Re Fisherman’s Island [1979] PNGLR 202

Roderick Tovo Bibilo v Gerard Balbagara (2008) N3291

Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

The State v Lohia Sisia [1987] PNGLR 102

Tigam Malewo v Keith Faulkner (2009) SC960

TRIAL

This was a trial on the question of liability for alleged unlawful forest industry activities on customary land and trespass on that land.

Counsel

W Akuani, for the plaintiff

N Y Tenige, for the defendants

30 January, 2013

1. CANNINGS J: The plaintiff Manuel Gramgari is a customary landowner in the Lower Ramu area of the Bogia District, Madang Province. He has brought a civil action claiming damages of K50 million against the defendants, PNG Tropical Wood Products and its general manager Steve Crawford, for what he says is their unlawful harvesting of timber and environmental damage on his clan’s land. A trial has been conducted to determine the question of liability. The plaintiff relies on three causes of action:

1 Breach of the Forestry Act 1991;

2 Breach of the Environment Act 2000; and

3 The tort of trespass.

2. There are two peculiar features of the case requiring comment at the outset. First, the second defendant PNG Tropical Wood Products has been joined as a party without the word “Limited” appearing after its name. The statement of claim pleads that it is a company incorporated in Papua New Guinea and the defendants in their defence admit this, so the word “Limited” should have appeared. Its absence appears to be an oversight, which needs to be corrected, but as none of the parties have raised it as an issue I will let the matter pass for now.

3. Secondly, while the plaintiff appeared at the trial and gave oral evidence and was cross-examined and other affidavit evidence was presented to support his case, the defendants presented no evidence. A number of people associated with the defendants swore affidavits that were filed and served but none of them attended the trial and as the plaintiffs’ lawyers had given notice under the Evidence Act that the deponents were required for cross-examination an objection to their affidavits being admitted into evidence was upheld. This meant that challenges to the facts alleged by the plaintiff were unsupported by evidence. This did not relieve the plaintiff of the burden of proving his case but it certainly made the task less difficult.

1 BREACH OF THE FORESTRY ACT

The plaintiff claims that:

(a) His clan, Agurai Eringpa, of which he is the leader, is the owner of a tract of customary land called “Asau”, an area of several thousand hectares near Asau village. He represents the clan in all land matters concerning Asau, including forestry activities and a recent land mediation has settled this issue.

(b) PNG Tropical Wood Products entered Asau in 2008 and set up a forestry camp and sawmill and then harvested and milled timber and engaged in other forest industry activities on the land until January 2011.

(c) This was done without his consent and in accordance with an agreement between the defendants and unauthorised persons from his area including Richard Agai, Elias Kauri, Joe Ajamba and Moses Orumai.

(d) In the course of conducting their activities PNG Tropical Wood Products damaged the environment and livelihood of the local people, in that:

· fuel and lubricant waste and sewerage were not disposed of properly and sewerage runoff entered the river and pond, resulting in marine life disappearing;

· soil erosion was widespread due to construction of roads (which have become waterways) and clearing of land for logging camps;

· immature logs have been left abandoned;

· felling of trees left gaps in the forest, resulting in shrubs growing in clearings;

· ground plants were destroyed;

· good quality timber has been removed;

· B and C grade timber was burned or abandoned;

· fish stocks in swamps have been depleted;

· quality of food crops has dropped, eg bananas no longer bearing good fruit;

· some birds and animals have disappeared; and

· hunting grounds have been damaged.

(e) PNG Tropical Wood Products paid timber royalties of K96,884.00 in respect of logging on Asau land but of that only K18,878.00 was paid to the plaintiff, the rest was paid to unauthorised persons including Timothy Ajamba.

(f) PNG Tropical Wood Products did not have a timber permit or timber authority in respect of Asau approved or granted by the Provincial Forest Management Committee or the National Forest Board under Section 89 of the Forestry Act.

(g) All activities of PNG Tropical Wood Products on Asau were unlawful.

(h) PNG Tropical Wood Products is therefore liable in damages to the plaintiff.

The defendants contest most of the above propositions and argue:

(a) There is no evidence that the plaintiff is a clan leader or that the clan that he claims to represent is the owner of the customary land called Asau. These matters were not pleaded in the statement of claim so it is unclear if the plaintiff has commenced the proceedings on behalf of a clan or only on his own behalf. He lacks standing to bring the proceedings. There is no Local Land Court order declaring that the plaintiff or his clan is the legitimate owner of any land on which PNG Tropical Wood Products is operating. Ownership of the land is disputed and the National Court has no jurisdiction to determine ownership of customary land.

(b) PNG Tropical Wood Products commenced harvesting timber and engaged in other forest industry activities in the Akamkus Timber Area in March 2009 (not 2008), which continued until January 2011.

(c) PNG Tropical Wood Products had the consent and authority of the customary landowners to conduct forest industry activities in the Akamkus Timber Area.

(d) PNG Tropical Wood Products did not cause any unauthorised environmental damage and conducted their activities in accordance with international forest operation standards and regulations and subject to inspection by Madang-based PNG Forest Authority officers.

(e) Royalties were paid to persons the defendants reasonably believed to be authorised to receive royalties on behalf of the customary landowners.

(f) PNG Tropical Wood Products at all times operated in accordance with a timber authority granted on 27 August 2008 by the National Forest Board under the Forestry Act.

(g) All activities of PNG Tropical Wood Products on the land were lawful.

(h) PNG Tropical Wood Products is therefore not liable in damages to the plaintiff; and even if it were proven that its activities were unlawful or that...