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CHAPTER 17 � THE LAND COURTS

17.1 INTRODUCTION

The Land Disputes Settlement Act deals with the resolution of disputes in relation to interests in, or boundaries of, customary land. Section 1 of the Act sets out the purpose of the legislation and the general approach to be employed in achieving that purpose.

District Court Magistrates may be involved with Land Court matters, either as a Local Land Court Magistrate or a Provincial Land Court Magistrate. This chapter examines these roles and the duties they entail. It also offers guidance to Magistrates in the discharge of their duties in relation to the Land Disputes Settlement Act.

17.2 MEDIATION

Mediation is given priority as a means of dispute settlement in the Land Disputes Settlement Act. Land Mediation Areas may be declared and, within these, Land Mediation Divisions. Land Mediators are primarily responsible for conducting mediations. They are appointed from among Village Magistrates or others within each of these divisions. Local Land Court Magistrates and Provincial Land Court Magistrates must be familiar with the duties and procedures of mediation.

Under s 15, the primary function of a Land Mediator is to assist in the attainment of peace and harmony by mediating in, and attempting to obtain the just and amicable settlement of, disputes. More than one Land Mediator may jointly attempt to bring about the resolution of a dispute through joint mediation. A Land Mediator may also seek the assistance of some other person with customary authority to assist in the mediation process.

Where, in the opinion of a Local Land Court Magistrate, a person other than an existing Land Mediator might be best suited to a particular mediation, then, pursuant to s 16, such a person may be appointed by the Local Land Court Magistrate to conduct a mediation. A Local Land Court Magistrate may consider such an ad hoc appointment where no Land Magistrate is available, or where those who are available have been involved in the dispute in one way or another, which creates a conflict of interest or the perception of a serious conflict of interest.

When Land Mediator may mediate: A Land Mediator has a discretion to mediate a dispute where he or she is of the opinion that it may be successful, provided that no other Land Mediator has been appointed or commenced to act as a mediator.

When Land Mediator must mediate: A Land Mediator must mediate where he or she has been requested to do so by, among others, a Magistrate of a District Court, Local Land Court or Provincial Land Court: Land Disputes Settlement Act, s 17(2). Normally the Land Mediator who is appointed will be from the Land Mediation Division where the dispute exists. However, occasionally, for reasons including those set out in s 17(5), a Magistrate may appoint a mediator from outside the division. In any event, where a Land Mediator is requested to act, a record of such a request must be forwarded to the Local Land Court Magistrate located nearest to the land in question.

Where more than one Land Mediator has commenced a mediation in relation to the same dispute, a Local Land Court Magistrate has the responsibility to resolve the issue of who will continue with the mediation. During an ongoing mediation, a Land Magistrate may replace one mediator with another.

Times and places for mediation: Mediation may take place at any time and place appointed by the Land Mediator or other person acting in that capacity. A mediator may adjourn the proceedings from time to time and request the presence of any persons or group of persons at the mediation.

The process of mediation: The Land Disputes Settlement Act does not set out any specific procedure. The objective of mediation is to achieve a clear and voluntary settlement of the dispute and thereby achieve the overall objectives of the Act. A mediator must remain neutral throughout the process and must not prescribe a settlement. Any settlement must be reached by the parties themselves. A good mediator will facilitate communication between parties, keep discussions focused and provide support to the parties. The principles, stages and skills of mediation are described in greater detail in Chapter 24. A particular issue that Land Mediators should always be mindful of is whether there are other potential parties to a dispute, who are not engaged in the mediation, but who might come forward after the matter has been settled. It is important that all parties to a dispute be involved at the initial stages where possible. This enhances the prospect of the mediation being truly successful and not later being challenged.

When mediation is successful: Where a mediation results in a settlement of the dispute, a Land Mediator has several obligations. He or she must make a record of the agreement and forward a copy to the nearest Local Land Court Magistrate. The Land Mediator shall also, as far as practicable, walk the boundary with the parties to the dispute, taking notice of prominent features and marking the boundary of the land as appropriate.

A Local Land Court Magistrate who receives a record of settlement must forward a copy to the Provincial Land Court for the province and, if requested to do so, to the Local Government Council and the parties to the settlement: Land Disputes Settlement Act, s 18.

When mediation is not successful: An unsuccessful mediation may be partially successful if even some of the outstanding issues are settled. A Land Mediator should attempt, where possible, to get the parties to agree to any disputed facts, even if they are unable to agree on a final settlement. Such a partial agreement should be reduced to writing, so that when and if the matter proceeds to a Local Land Court, the parties may be asked to admit the particular facts and thereby shorten and focus the proceedings.

Parties to an unsuccessful mediation have a right to proceed to the Local Land Court to have their dispute adjudicated.

17.2.1 Effect of mediated settlements

A mediated settlement can have one of two effects, depending on whether it is approved by a Local Land Court Magistrate or not.

Where agreement approved: If the parties to a mediated agreement apply to a Local Land Court to have the agreement approved under s 19(1) of the Land Disputes Settlement Act, it is the duty of a Magistrate to ensure that:

�           the terms of the agreement are fully understood by the parties;

�           where a party consists of a group of people, that �a substantial majority of the persons comprising the group concur in the terms of the agreement�; and

�           the agreement is not in breach of any law or contrary to natural justice or public policy.

A Local Land Court Magistrate should not approve a settlement where:

�           one or more parties were not present at the mediation or did not agree to the settlement; or

�           the mediation itself was not conducted properly.

Specifically, it must be clear that no party was intimidated or otherwise forced to agree.

A Magistrate who is satisfied that the prerequisites have been fulfilled, may approve the agreement.

An agreement that is approved has effect as an order of the District Court: Land Disputes Settlement Act, s 19(6).

Where agreement is not approved: Unless and until a mediated agreement is approved pursuant to s 19 of the Land Disputes Settlement Act, it does not have the effect of a court order, but is, in any legal proceedings, �evidence of the interests of the parties at the date of the agreement�. However, it is not like a contract and is not binding on a party or a party�s heirs, successors or assigns.

Where a Magistrate is not satisfied regarding any of the above criteria, he or she may mediate, or direct the Land Mediator who has been involved in the matter to conduct further mediation, with a view to reaching an agreement that satisfies the criteria. However, parties should be informed that they have a right to proceed to a court hearing of their dispute. Further mediation should not be imposed, or even recommended, where it is unlikely that it would succeed. Further mediation should never be used as a means of simply deferring a matter in the Local Land Court.

17.3 LOCAL LAND COURTS

17.3.1 Make-up of the Local Land Court

Where a process of mediation does not settle a land dispute, the Local Land Court is the appropriate forum for the resolution of the dispute. A Local Land Court comprises a Local Land Court Magistrate and either two or four Land Mediators. If possible, one of the mediators should be the one who attempted to resolve the matter by means of mediation. Clerks may or may not be appointed. The duties of clerks are set out in s 24 of the Land Disputes Settlement Act. If there is no clerk, the Magistrate may perform the clerk�s duties in the Local Land Court.

The proceedings of a Local Land Court are subject to transfer to another Local Land Court, either on the motion of the court where the application is instituted, or at the instance of a Provincial Land Court. The effect of a transfer is that any further proceedings in the court from which the matter has been transferred are of no effect.

The membership of a Local Land Court may change, in accordance with the provisions of s 34, where the original Magistrate is unable to continue to preside.

17.3.2 Applications to the Local Land Court

Applications to the Local Land Court are commenced by application to a District Court Magistrate, who shall forward the application to the Local Land Court with apparent jurisdiction, or to a Local Land Court Magistrate.

Standing: In order to have standing, a party need not establish ownership of an interest in the land in question. A claim, based on custom, is sufficient to provide a party with standing: Kuberi Epi v Turama Forest Industries Ltd, National Court (1998) N1761.

Application: An application may be made orally or in writing, but if made orally must be reduced to writing before the hearing commences. The application must contain a general description of the land in question.

Notice of Application: A Local Land Court, to which an application is made, shall give notice of the application in accordance with ss 31(5) and 71 of the Land Disputes Settlement Act. Section 71 sets out several steps that are required:

�           giving notice to the parties;

�           publishing notice at the office of a Local Government Council and notifying the Local Government Council at its next meeting;

�           publishing notice by radio in the province in which the land is situated.

Further steps to bring the application to the attention of the parties and others in the community may be utilised:

�           posting a copy of the notice in a conspicuous place on the land concerned;

�           informing all concerned, or possibly concerned, parties on the land or in the surrounding land;

�           notifying appropriate meetings in the area;

�           using any customary means of transmitting orders to bring people notice of the application.

It is important that these measures are used to ensure that the hearing, and any subsequent order made, does not come as a surprise to any person who may have had an interest in the subject matter of the hearing.

17.3.3 Jurisdiction

Before proceeding with a hearing, a Local Land Court Magistrate must be satisfied that the court actually has jurisdiction to hear the application. Where two or more Local Land Courts have jurisdiction, the court that will proceed to hear the matter is determined by agreement or by a Provincial Land Court.

The main precondition to the jurisdiction of a Local Land Court is that there is a dispute. A Local Land Court does not have jurisdiction to respond to an application in the form of a �reference�, nor may it make a declaratory order in the absence of a genuine dispute. In The Application of Rimbo Susu on Behalf of Himself and Other Finschhafen Landowners [1992] PNGLR 37, a party took issue with an agreement to sell customary land in a manner contrary to custom. This was held to constitute a dispute.

Where a dispute relates to land wholly or partly within a Land Mediation Area, the certification of a Land Mediator that he or she has acted in relation to the dispute, is a necessary prerequisite to jurisdiction and the requirements of s 27(1) of the Land Disputes Settlement Act. If the land is not within a Land Mediation Area, certification is still required of a Magistrate.

A dispute involving an interest to customary land may be inextricably involved with some other dispute or criminal proceeding. Where this is the case, a Local Land Court Magistrate may decide not to proceed with the hearing in a Local Land Court until the other dispute is resolved, either in the District Court or elsewhere.

17.3.4 Preventative jurisdiction

Where a dispute is unlikely to come before a Local Land Court for hearing within a month and, in the meantime, action is needed to preserve the peace, a temporary order may be made pursuant to s 30 of the Land Disputes Settlement Act. Temporary orders may:

�           authorise the use or occupation of land;

�           prohibit the use or occupation of land; or

�           restrain a party from interfering with the use or occupation of land.

Where a temporary order is made, the Local Land Court must commence hearing the dispute relating to the land within three months of the temporary order.

Magistrates should be aware of the jurisdiction of a Village Court, pursuant to s 43 of the Village Courts Act, to make a temporary order in respect of the use or occupation of customary land. While the existence of such a Village Court Order does not preclude the exercise of jurisdiction by a Local Land Court Magistrate, the terms of an order should not be inconsistent with that of a Village Court.

17.3.5 Hearings

The Land Disputes Settlement Act does not set out a formal procedure for the hearing of disputes. The conduct of hearings, however, must comply with the requirements of natural justice: see 4.1.

In addition, s 36 of the Act places an obligation on a Local Land Court to inspect the land in dispute, with the parties, before making an order. This sometimes creates a situation of great tension, and members of a Local Land Court may occasionally require the assistance of members of the police force to accompany them on an inspection.

A Local Land Court may call witnesses. An order compelling a witness to appear before the court may be oral or written, and may be enforced by a direction to a member of the police force or a Village Peace Officer to arrest the witness and bring him or her before the court.

A finding that a party has exercised an interest in the disputed land for more than 12 years creates a presumption that the party has a vested interest in the land, even if no other party has given permission for the exercise of that interest. See Chapter 5 for a discussion of the evidential significance of a presumption.

A Local Land Court is obliged, pursuant to s 68 of the Land Disputes Settlement Act, to determine all relevant customs of any group which appears or is represented in the court. The provisions of the Customs Recognition Act do not restrict the court in the determination or application of customs.

At a hearing, a party may be represented by anyone other than a lawyer.

17.3.6 Records

A Local Land Court is obliged to keep records of proceedings before it.

In Siamon Riri and Dei Riri v Simion Usai, Wasaf Musas, Musai Mamas, Fiu Gaus (1995) N1377, the National Court, pursuant to s 155 of the Constitution, reviewed the decision of a Local Land Court. In the process, the record keeping of the Local Land Court was scrutinised and found to be �just not good enough�. Records should indicate which of the s 39 factors were taken into account in reaching a decision. A failure to do so is not within the �spirit or intent of the Act�.

17.3.7 Orders of a Local Land Court

A Local Land Court is given flexible powers in the terms that it may include in an order. These are set out in s 39 of the Land Disputes Settlement Act. The range of possibilities is wider than that which could be made in a court with only legal or equitable powers. The terms of an order made by a Local Land Court may pertain to any customary interests, and may include a feast, customary tribute or compensation.

Orders must not include terms that concern an interest in the land in question that is not in dispute, or persons or groups that are not parties to the dispute. However, where an unnamed party is present at a hearing and takes part, and where no named party objects to the participation of that party, an order may be made which does affect the interest of the unnamed party: see Tony Vagi Heni and Guba Idau Maima and Lohia Tolana (1992) N1201.

Reasons for an order must be given as soon as practicable after the conclusion of a hearing. These reasons must be given in the presence of the parties: Land Disputes Settlement Act, s 41. A Magistrate, in formulating reasons, must ensure that the terms of any orders are clear and unequivocal. Parties should not be able to misinterpret any order, either genuinely or deliberately. Further guidance on the formulation and delivery of orders and reasons is contained in Chapter 25.

In addition, s 42 of the Act provides that, where an order affects the boundary to customary land, as far as is practicable, the court shall walk the boundary with the parties, mark the boundary and record the boundary in an appropriate manner. The names of five witnesses who are prepared to testify to the position of the boundary must also be recorded.

Although an order made by a Local Land Court is conclusive evidence and establishes a right in relation to the interests in the land specified in the order, any interest that is not specified in an order of a Local Land Court may be the subject of a future claim.

An order of a Local Land Court may be varied in certain circumstances that are set out in s 44 of the Act. However, an application to vary may only be brought by a party to the original dispute on the basis that the original order is causing hardship. Further, an application to vary an order may not be brought within 12 years of the order that is to be varied.

17.4 PROVINCIAL LAND COURTS

The main function of Provincial Land Courts is to deal with appeals from decisions of the Local Land Court. Section 60 of the Land Disputes Settlement Act purports to make decisions of the Provincial Land Court final and not subject to review. However, this limitation has been found to be unconstitutional. In Siamon Riri and Dei Riri v Simion Usai, Wasaf Musas, Musai Mamas, Fiu Gaus (1995) N1377, it was held, pursuant to s 155(3) of the Constitution, that s 60 is not a bar to constitutional relief. This follows upon earlier decisions to the same effect.

17.4.1 Make-up of Provincial Land Courts

A Provincial Land Court is made up of one Principal Magistrate who may, pursuant to s 47 of the Land Disputes Settlement Act, request that one or more Land Mediators sit on the case as advisers. Section 48 of the Act also provides for clerks �as are necessary�. In some circumstances, necessity may be defined by availability. In any event, where no clerk is present, a Magistrate will assume the functions that would otherwise be assumed by a clerk.

17.4.2 Jurisdiction

A Provincial Land Court may sit at such times and places as are convenient and necessary, but where practicable, must sit on or near the land in dispute.

An appeal must only be in relation to land that is wholly or partly within the area for which the court is established.

An appeal may be brought within three months of the date of the order appealed against, but a Provincial Land Court has the discretion to extend that period for up to 12 months from the date of the order appealed against. In Abel Ameng v Mathew Poia (1996) N1765, the National Court confirmed that a Provincial Land Court has no jurisdiction to extend the period for appeal beyond the 12-month limit set out in s 54 of the Land Disputes Settlement Act.

Sections 55 and 56 of the Act set out the requirements in relation to the filing of an appeal and service of the appeal on the respondent. Non-compliance with these statutory requirements would render any further proceedings in relation to the case invalid.

Section 58 of the Act sets out the only grounds upon which an appeal may be made.

A Provincial Land Court may do one of two things. It may either affirm the order appealed against or quash it. Where the order is quashed, the Provincial Land Court may make an order in substitution for the original order, or may remit the matter to the Local Land Court, where necessary with instructions as to how the matter should be dealt with.

A Provincial Land Court cannot affirm an order of a Local Land Court and amend it. This was confirmed in the National Court case of Keberi Epi v Turama Forest Industries Ltd and The State (1998) N1761, where it was stated:

<Case Quotation>

�The question of whether a District or Provincial Land Court on appeal can affirm an order and change it has been considered in State v District Land Court, ex parte Nuli [1981] PNGLR 192. Section 59(1)(a) was held to limit a Provincial Land Court to affirming the order. It cannot go outside the four corners of the order and amend it. It can only make further orders when it quashes an appeal. It, therefore, cannot uphold and amend.�

<End Case Quotation>

17.4.3 Practice and procedure

Provincial Land Courts must endeavour, pursuant to s 50 of the Land Disputes Settlement Act, to do �substantial justice between all persons interested in accordance with � relevant custom�. In seeking to achieve this goal, Provincial Land Courts are not bound by any �rule of law, evidence, practice or procedure�, other than that set out in the Act itself: s 50. Any proceedings of a Provincial Land Court must be conducted in accordance with the rules of natural justice: see 4.2.

A Provincial Land Court may call and examine witnesses or �inform itself on any question before it in such manner as it thinks proper�. Either before or during a hearing, a Provincial Land Court may inspect the land in question.

In relation to custom and presumptions of interest in customary land, the same provisions of the Act apply to Provincial Land Courts as apply to Local Land Courts: see 17.3.5 above. A party in a Provincial Land Court may be represented by anyone other than a lawyer.

17.4.4 Orders and records

As mentioned above, a range of orders is available to a Provincial Land Court: Land Disputes Settlement Act, s 59. A Provincial Land Court Magistrate should fully explain to the parties the terms of a decision and the reasons for it. The considerations set out in 17.3.4 above are relevant to a Provincial Land Court Magistrate.

Section 52 provides that the records of a Provincial Land Court should include reasons for decisions made. Other matters which should be included in the records of a Provincial Land Court are those set out above in relation to the Local Land Court.

17.5 INSPECTIONS

Section 73 of the Land Disputes Settlement Act provides that Provincial Land Court Magistrates may be called upon to conduct inspections of the Local Land Courts and of the Land Mediators within a province. There are two main functions involved in inspections:

1.         A Provincial Land Court Magistrate should point out to the Local Land Courts and Land Mediators any shortcomings in practice or procedure. In doing so, it is helpful to be as constructive as possible. The matters set out above in 17.2 and 17.3 would be relevant in conducting an inspection, as would any written directions or guidelines that the Land Mediators or Local Court Magistrates have received. Although informal discussions are a good way to learn and communicate, any recommendations or advice should be provided to the recipient in writing, with a copy kept by the Provincial Land Court Magistrate for reference in relation to future inspections.

2.         A Provincial Land Court Magistrate should encourage uniform practices in Local Land Courts and by Land Mediators throughout the province. This objective helps to ensure a perception of fairness. Written guidelines and checklists for use by all Local Land Courts are helpful in establishing uniformity throughout a province.