Ronny Wabia v BP Exploration Operating Co Ltd, Department of Mining and Petroleum and The Independent State of Papua New Guinea [1998] PNGLR 8

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Sevua J
• Judgment Date: 26 March 1998
• Citation: [1998] PNGLR 8
• Judgment Number: N1697
• Year: 1998

Full Title: Ronny Wabia v BP Exploration Operating Co Ltd, Department of Mining and Petroleum and The Independent State of Papua New Guinea [1998] PNGLR 8

National Court: Sevua J

Judgment Delivered: 26 March 1998

N1697

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1214 OF 1996

BETWEEN: RONNY WABIA

PLAINTIFF

AND: BP EXPLORATION OPERATING CO. LTD

FIRST DEFENDANT

AND: DEPARTMENT OF MINING & PETROLEUM

SECOND DEFENDANT

AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA

THIRD DEFENDANT

Waigani

Sevua J

12 May 1997

26 March 1998

CUSTOMARY LAND — Title to Land — Jurisdiction — Issues of ownership and title to customary land — Local Land Court — Jurisdiction to arbitrate such issues vests in Local Land Court — Land Dispute Settlement Act Ch. 45 — National Court no jurisdiction.

CUSTOMARY LAND — Compensation — Issues relating to payment of compensation — Petroleum Act — Jurisdiction — Warden's Court — Petroleum Act Ch. 198 — National Court no jurisdiction.

PRACTICE AND PROCEDURE — Application for stay or dismissal of proceedings — Order 8 Rule 27 and Order 12 Rule 40 — Courts discretionary power conferred by the rules — Common law inherent jurisdiction.

Held

(1) The National Court has no jurisdiction to entertain issues relating to ownership and title to customary land. As a matter of law, that jurisdiction is vested in the Local Land Court established by the Land Dispute Settlement Act, Ch 45.

(2) The National Court cannot arbitrate on the forms of accession or succession and hence ownership or interests in customary land because it has no jurisdiction.

(3) The National Court has no jurisdiction to arbitrate on compensation claims relating to customary land connected with the exploration for petroleum under the Petroleum Act, as that jurisdiction is vested in the Warden's Court, pursuant to ss 81 and 82 of that Act.

(4) The issue of ownership of customary land in the Hides Gasfield Project has already been determined by the Land Titles Commissioner, Justice Amet (as he then was) on 25th July, 1991 in the case of The Land Titles Commission Application No. 90/101 [1993] PNGLR 310.

Cases Cited

Papua New Guinea Cases Cited

The Land Titles Commission Application No. 90/101 [1993] PNGLR 310

Victor Golpak -v- Patrick Alongrea Kali & 5 Ors [1993] PNGLR 491

PNG Forest Products Pty Ltd & Anor -v- The State & Jack Genia [1992] PNGLR 85

Other Cases Cited

Burton -v- Shire of Bairnsdale (1908-09) 7 CLR 76

Tampion -v- Anderson [1973] VR 321

Dey -v- Victorian Railways Commissioner (1948-49) 78 CLR 62

Counsel

Mr. S. Ketan for Plaintiff/Respondent

Mr. K. Kua for 1st Defendant/Applicant

Ms H. Polume for 2nd & 3rd Defendants

26 March 1998

SEVUA J: The first defendant, by notice of motion filed on 13th February, 1997, seeks orders inter alia, that the plaintiff's statement of claim be struck out pursuant to Order 8 Rule 27 (1) of the National Court Rules, (the rules) or, alternatively, these proceedings be stayed and the plaintiff directed to restore his customary landownership dispute under the Land Dispute Settlement Act, Ch 45. The first defendant's application is supported by both the second and third defendants.

The brief facts are, the first defendant has a Petroleum Development Licence (PDL 1) and Pipeline Licence (PLL 1) issued by the third defendant to operate a petroleum project in respect of the Hides Gasfield Project in the Southern Highlands Province. The licence was issued under the Petroleum Act. All provisions in the Act relative to the issuing of licence and the operation of the petroleum project have been complied with. The grant of or validity of the licence are not challenged by the plaintiff.

The plaintiff issued proceedings in this Court for compensation for trespass to customary land based on customary right, apart from seeking a declaration that he is the owner of the land in question, and an injunction to restrain the first defendant from remaining or continuing in occupation of the land.

This application, in so far as it seeks orders under Order 8 Rule 27 (1) of the rules; is supported by the affidavits of Katia Yubi, Henry Tunduma, Hewale Ogibi and Ekawi Tayanda, all sworn on 19th February, 1997. All these witnesses come from the Wita-Tondo sub-clan of the Wita Clan of Tari in the Southern Highlands. All, except Henry Tunduma, are customary leaders and spokesmen for their sub-clan. Tunduma is employed by the applicant as a Community Relations Officer. Amongst other things, these witnesses have stated that the plaintiff is not a member of the Wita Clan or any of its sub-clan. In essence, his claim of membership of Wita Clan hence entitlement to compensation is disputed.

In respect of the order being sought under Order 8 Rule 27 (1), the applicant relies on the affidavits alluded to. On the basis of the affidavit evidence, the applicant argues that, there is no trespass; the respondent plaintiff has no legal standing to bring this suit; proceedings in respect of ownership and entitlement to compensation have already been determined, thus non-jurisdictional in this Court, and finally, this Court has no jurisdiction to deal with the issues involved in this action because s.81 of the Petroleum Act establishes the Warden's Court which deals with the issue of compensation.

The respondent's argument is basically that he is a landowner whose land is situated in the first defendant's Hides 1 Well Head and between Hides 1 Well Head and the border between Hiwa Topani Clan through which the gas pipeline runs.

From the map annexed to the writ of summons, the Court notes that there is no clan called Hiwa Topani identified on the map, except Wita Topani Clan, whose land is situated between the Hides A and Hides 1 Well Heads. Refer to the map annexed to this judgment.

The respondent complains that as the owner of the land referred to herein, and since the granting of PDL 1 and during discovery stage, his interest has not been recognised by the defendants and people dealing with compensation. He has also filed an affidavit, supported by two other landowners, who assert ownership over the same land, but have not been compensated. He says that both the first and second defendants have never listened to him and he has not received any compensation.

Mr Ketan submits that this Court has jurisdiction over this matter, however if the first defendant's application is granted, he prefers that the proceedings be stayed so that he and the first defendant can refer the matter to the Warden to determine if the plaintiff could receive any compensation for the land and improvement.

Mr Kua for the first defendant added that his client's application is to dismiss the proceedings, if a stay is not appropriate.

At this juncture, let me say that, I take the view that this application raises the issue of jurisdiction. From this issue, two pertinent questions arise. Firstly, the question of ownership — whether the plaintiff respondent is a customary owner of land, the subject of PDL 1 and PLL 1. And secondly, if he is, whether he is entitled to compensation, and if so, the quantum of compensation. I consider this to be the paramount consideration in the plaintiff's claim.

Counsel have referred me to the judgment of Amet, J (as he then was) who presided as Commissioner in the case of The Land Titles Commission Application 90/101 [1993] PNGLR 310. The plaintiff's claim directly relates to land included in that decision which I wish to refer to briefly,...