Wolutou Land Group Incorporated v Pok [2021] PGNC 290; N8998 (6 August 2021)

N8998

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 417 OF 2018

WOLUTOU LAND GROUP INCORPORATED
Plaintiff

AND:
HON. FABIAN POK MINISTER FOR PETROLEUM
First Defendant

AND:
KEPSY PUIYE IN HIS CAPACITY AS THE ACTING SECRETARY DEPARTMENT OF PETROLEUM
Second Defendant

AND:
DAIRI VELE IN HIS CAPACITY AS THE SECRETARY DEPARTMENT OF TREASURY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
PAUL SAPAKE & JASON TIRIME OF TOALE HONGIRI SUB CLAN OF IMAWE BOGASI
Fifth Defendant

Waigani: Miviri J
2021: 14^th July, 6^th August

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive notice of Motion – Ministerial Determination Section 169 & 170 Oil & Gas Act – Discretionary – Whether Plaintiffs denied by determination – Natural Justice – Ultra Vires – Process of Law followed – Compliance – No breach – Judicial Review not made out – Motion denied – cost in the cause.

Cases Cited:
Papua New Guinea Cases

OS (JR) No. 208 of 2019 Tuguyawini Libe Parindali of Nguane v Pok & ors

OS (JR) 209 of 2019 Kakapaia Parindali And Ikipe Togoriago of Pela Clan and Makape Parapu of Warapia Clan v Nuau

OS (JR) 208 & 209 of 2019 Joshua Turaha & Busunae Posou of Isaweri Bupuku Gohu Sub Clan of Isaweri Clan v Pok

Paul Sapake & Jason Tirime of Toale Hongiri Sub Clan of Imawe Bogasi Stock Clan and Yaks Yakoria of Tiasupi Sub Clan Of Imawe Bogasi Stock Clan v Pok

Pelego v Pok [2021] PGNC 50; N8745

Tumu for Luhalipu Clan v Independent State of Papua New Guinea [2002] PGNC 137; N2190

OS No. 85 of 2020 Wolutou Incorporated Land Group v David Manau Secretary Department of Petroleum & Energy & ors

Avini v The State [1997] PNGLR 212

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Overseas Cases

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223.

Counsel:

P. Yapa, for Plaintiffs
P. Sapu, for Plaintiffs (OS (JR) 209 of 2019.
M. Tukuliya, for First, Second & Fourth Defendants
H. Maliso, for Third Defendant
J. Haiara, for Fifth Defendants

RULING

06^th August, 2021

1. MIVIRI, J: This is the Ruling on the Plaintiffs application for Judicial Review of the Ministerial determination of the First Defendant made on the 30^th May 2018 pursuant to section 169 and 170 of the Oil and Gas Act 1998 as amended.
   
2. Leave was granted on the 20^th September 2018. And this proceeding by notice of motion were filed 27^th September 2018. There are five main grounds pursued. Firstly, that the first defendant committed an error of law when he excluded the plaintiff in his Ministerial determination of the 30^th May 2018 from benefitting from the Equity and Royalty benefits relating to the PNG LNG Pipeline Licence four (PL4) segment six (6), including the buffer Zone because the plaintiff has registered title to most part of the Licence area or land within the pipeline runways and the buffer Zone of that petroleum project. The exclusion breached sections 169 and 170 of the Oil and Gas Act 1998.
   
3. Secondly the First defendant committed a breach of natural justice when he failed to accord the Plaintiff an opportunity to be heard on the reasons why it should be excluded from the Ministerial Determination despite it having the registered title to the land.
   
4. Thirdly the First Defendant reached a decision which is considered unreasonable in the Wednesbury sense because he failed to give reasons why he excluded the Plaintiff who has registered title over the land, the subject of the Ministerial Determination.
   
5. Fourthly the First Defendant was biased because the other 9 clans included in the Ministerial Determination have no registered interest like the plaintiff.
   
6. Fifthly the First Defendant considered irrelevant considerations in his decision-making process. The first defendant failed to consider the evidence of the Special Agricultural and Business Lease (SABL) title or the State Lease. Pursuant to section 11 and 33 of the Land Registration Act 1981 and section 15 and 16 of the Land Titles Act 1962 and within the definition of the “project area landowner” as referred to in sections 167, 168, and 169 and 170 of the Oil and Gas Act 1998, the plaintiff is a major beneficiary to the Ministerial Determination of 30^th May 2018. However, as a result of the First Defendant considering other irrelevant considerations, the plaintiff was excluded in the determination of the benefits derived from the PNG LNG Pipeline Licence four (PL4) Segment six (6).
   
7. The affidavit in support of the Plaintiff’s cause is of one Wilfred Tandepeke Upeke sworn and filed of the 11^th July 2018. He is secretary to the plaintiff land group. He serves in the controlling body (Executive) serving the plaintiff as a public officer responsible for the day-to-day administration functions. The plaintiff is legitimate customary owner of 81.028 hectares of land registered and contained in State Lease Volume 17 Folio 07 which is registered on the 21^st of July 2011 by the Registrar of Titles. That is annexure “A” to his affidavit copy of the SABL title. It is clear that the determination is not to the Incorporated Land Groups but to the landowner clans.
   
8. Annexure “F” of that affidavit is relevant to the issue raised. It is the Ministerial Determination published in the Post Courier dated the 30^th May 2018. It clearly states, “Determination on PNG LNG Project Pipeline Licence 4 (PL4) Segment six (6) including the buffer zone along the Pipeline right of way as beneficiary clans sharing their 15.53 % (converted to 100%) as agreed in the Pipeline LBBSA.
   
9. And the determination of the Minister is specific that it is after having received and considered results of social mapping and landowner studies carried out under section 47 of the Oil & Gas Act, PNG LNG LOBID vetting reports, signed intra clan benefit sharing consent forms from the project area, PNG LNG Project umbrella Benefit Sharing Agreement (UBSA), Pipeline Licence Based Sharing Agreement (LBBSA), NEC decision No. 193/2015 and other related submissions for the purposes of section 169 & 170 are the determination made.
   
10. There are stock clans at the helm, and Iwawe Bogasi is one of them. From which derive nine (9) sub clans some of which as here as ILGS. The plaintiff is a sub clan of the Imawe Bogasi stock clan. It is clear it has not been excluded by the Determination and that is set out below with Imawe Bogasi at the top with 12.2 %. The language used by the Plaintiff is incorrect as the record speaks otherwise.
    
11. In this instance it is as follows:
    
    1. Imawe Bogasi 12.2%
    2. Imawe Kewa 11.2%
    3. Yesiki 11.2%
    4. Musoneri 11.2%
    5. Wafi 11.2%
    6. Afu 11.2%
    7. Isaweri Makof 11.2%
    8. Mukurd Dipan 13.6%
    9. Makena 7.0%
       
12. Any assertions that the Minister has excluded is without merit considering. Nor is it the same where the Minister is said to have acted without giving hearing to the plaintiff. This is clear by the express language of the determination set out above that he has gone to great trouble and lengths to give heed to section 169 and 170. And clear with the inclusion of the Plaintiff through their stock clan of Imawe Bogasi of 12.2%. This argument is without merit. Because the assertions have been the same all alone. And that is clear from related proceedings that have drawn the same. OS (JR) 421 of 2018 and OS (JR) 418 of 2018 both have challenged the Ministerial determination to no avail in their favour. In OS (JR) No. 421 of 2018 Hongiri sub clan and Tiasapi Sub clan both were of Imawe Bogasi Stock Clan. Their argument that Afu Clan was excluded bore no favour in their cause. And in OS (JR) 418 of 2018 it was challenged that Isaweri Makof, sub clan of Isaweri Stock Clan was awarded 11.2% which ought to have been the Stock clan Isaweri. And sub clans which include Isaweri Bupuku and Isaweri Makof.
    
13. These establish that there is reasonableness within the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223. That is abundantly clear from the ring of decisions in this matter that the Court has been drawn to make during the course of this week starting with , OS (JR) No. 208 of 2019 TUGUYAWINI LIBE PARINDALI of NGUANE v POK & ors (05 August 2021); OS (JR) 209 of 2019 KAKAPAIA PARINDALI AND IKIPE TOGORIAGO OF PELA CLAN and MAKAPE PARAPU OF WARAPIA CLAN v NUAU (05 August 2021); OS (JR) 208 & 209 of 2019 JOSHUA TURAHA & BUSUNAE POSOU OF ISAWERI BUPUKU GOHU SUB CLAN OF ISAWERI CLAN v POK (04 August 2021); PAUL SAPAKE & JASON TIRIME OF TOALE HONGIRI SUB CLAN OF IMAWE BOGASI STOCK CLAN and YAKS YAKORIA OF TIASUPI SUB CLAN OF IMAWE BOGASI STOCK CLAN v POK (04 August 2021). In all it has been the case that the Minister has determined in compliance of section 169 and 170 of the Oil and Gas Act. He has been square and fair in every respects despite all the infighting within the Clans sub clans themselves. In each case as here the money due has been simply parked in trust to be picked up after the clans have settled amongst themselves the disputes, they have created amongst themselves. Rather than benefit themselves from the harvest of their land, they have all chosen to pocket in expensive legal proceedings to their misery. Whether this is the way they want to spend their money is entirely in their discretion. But once again as here there really is nothing to be reviewed either ultra vires section 169 and 170 of the Oil and Gas Act, or any other relevant law.
    
14. The determination of the Minister is not interested in the disputes that the clans mushroom he is discretion by the Oil & Gas Act section 169 and 170 to dish out as he has done right up to this case. In so doing he is guided by having received and considered results of social mapping and landowner studies carried out under section 47 of the Oil & Gas Act, PNG LNG LOBID vetting reports, signed intra clan benefit sharing consent forms from the project area, PNG LNG Project umbrella Benefit Sharing Agreement (UBSA), Pipeline Licence Based Sharing Agreement (LBBSA), NEC decision No. 193/2015 and other related submissions for the purposes of section 169 & 170 are the determination made. The thrust of this tedious exercise is to avoid and ensure that all due are paid their dues. That no one misses out what is due lawfully to it. All receive what is prime to them. And he is guided as he does by what he specifically declares as set out above.
    
15. In so doing he gives accord to reasonableness within Wednesbury and all laws. He is expressly bound because they are Public Moneys that must go right fully to were it is designated by law. And it is clear from the lead case in this realm or bunch starting with OS (JR) Nos 211, 217, 221, 223, & 226 of 2019 dealt with before Justice Makail delivering the ruling in Pelego v Pok [2021] PGNC 50; N8745 (8 February 2021) that the conduct of the Minister has been static to where it must go always. And that is expressed by the views of this Court in Tumu for Luhalipu Clan v Independent State of Papua New Guinea [2002] PGNC 137; N2190 (28 February 2002), where it was specifically stated, “Intend of Parliament here was to allow for landowners to agree on both entitlement and distribution of equity and royalty benefits from any petroleum project after the Coming into force of the Act. Ailing any such agreement the Minister for Petroleum is given discretion to make the necessary determinations having regard to the matters set out in the Act.
    
16. Whether equity and royalty grants under ss.167 and 168 of the Act are interests in land or grants from the State? – Equity and royalty benefits are grants from the State but to project area landowners – If these benefits are grants from the State, whether land ownership disputes should prevent distribution of such grants? – Any landownership dispute has the effect of preventing any distribution of such grants until the dispute is resolved either by agreement of the parties or the proper”
    
17. This is the observation also in OS No. 85 of 2020 Wolutou Incorporated Land Group v David Manau Secretary Department of Petroleum & Energy & Hon Kerenga Kua Minister for Petroleum & Energy & Dr Ken Ngangan Secretary Department of Finance & KC Paonga Acting Chief Commisisoner land Titles Commission & Hon John Rosso Minister for Lands and Physical Planning & The Independent State of Papua New Guinea & Joshua Turaha and Busunae Posou of Isewari Bubuku Gohu Clan & Isewari Bubuku Gohu Incorporated land Group & Paul Sapake, Jason Tirime, Yaxie Yakoria and Nelson Yekili of Imawe Bogasi Clan & Toale Hongiri Incorporated Land Group, Tiasapi Incorporated Land Group and Yenidou Bogasi Incorporated Land Group & Dikala Yawewe, Clan Chief, Yahapu Kaiai Nogolu Incorporated land Group & Limpia Sayabe, Deputy Chairman, Yahapu Kaiai Nogolu Incorporated Land Group And in the matter of two cross claims The seventh to the tenth defendants v The Plaintiff and the First to sixth Defendants (06^th April 2021).
    
18. What is derived are grants and royalty by law and must be accorded to the People. That is the spirit of the Oil & Gas Act. Which has been complied by the Minister his determination stands in law. And he has made payments fairly and equitably from the material that has been placed before him. He has not left out one group for a completely new group or individuals. It is not in his interest to do that; money must be accounted for as it is public money. And consequences of non-compliance are there in law particularly criminal law: Avini v The State [1997] PNGLR 212. The plaintiffs pray is without the evidence to sustain. Because fundamentally judicial review is about procedure: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). There is no violation of procedure here at the call of the Minister in the determination he has made.
    
19. Once again this is yet another one of those cases, that have come before me this week foretelling greed, rather than common goodness for all. The Land which is the soul of the People from time immemorial and the resting place of heaven has not passed on the harvest because the sight has become blind to kinsmen, tribesmen and clansmen. Because it has become meddled with busy bodies so much so that matters trivial misguided have fallen to distort, camouflage erase the goodness to provide for all: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008).
    
20. It is fundamental that Judicial Review is restrictive and for very good reasons because, “Grant of leave for review of an executive decision or act is a prerequisite for the hearing of a claim for judicial review...The leave application itself is a guided process in which the question of grant or refusal is discretionary. This stems from the fact that the judicial review application is a restrictive process. The rationale is simple: Judicial Review is not an open forum for busy bodies and other persons with misguided or trivial complaints over administrative errors to air their grievances” at para 9,”Schram v Papua New Guinea University of Technology [2012] PGNC 245; N4992 (6 December 2012).
    
21. There is no iota of a matter to be reviewed as pleaded falling within, Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 20140. This is yet again a stink that has seen the unreal than the real. Accordingly, the notice of motion is without merit and stands dismissed with costs to follow the event forthwith.
    
22. The formal orders of the court are:
    
    • (1) Judicial Review is not made out and refused.
    • (2) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Nandi Lawyers: Lawyers for the Plaintiffs

Office of the Solicitor General: Lawyer for First, Second & Fourth Defendants

Twivey Lawyers: Lawyer for the Third Defendants

Haiara’s Legal Practice: Lawyer for the Fifth Defendant