N9067
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 196 OF 2019

BETWEEN:
ROY EVARA OBE. PRESIDENT PURARI DEVELOPMENT ASSOCIATION INCORPORATION FOR AND ON BEHALF OF IARE, KORIKI, KAIMARE, KORAVAKE, PAUAEA, VAIMURU, IPIKO AND LAVIVANA, (MAIPUA) TRIBES OF BAIMURU SUB DISTRICT GULF PROVINCE
Plaintiff

AND:
BENJAMIN SAMSON-REGISTRAR OF TITLES DEPARTMENT OF LANDS AND PHYSICAL PLANNING
First Defendant

AND:
HON. JUSTIN TKATCHENKO MINISTER FOR LANDS AND PHYSICAL PLANNING
Second Defendant

AND:
OSWALD TOLOPA ACTING SECRETARY DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND:
MANOAH KARARA
Fifth Defendant

AND:
HON KERENGA KUA MINISTER FOR PETROLEUM AND ENERGY
Sixth Defendant

AND:
DAVID MANAU SECRETARY FOR PETROLEUM AND ENERGY
Seventh Defendant

AND:
TOTAL E & P LIMITED
Eighth Defendant

AND:
AUMAKE NAIRU ORUMAKO ILG
Ninth Defendant

AND:
IARE TRIBE AND 43 ILGS
Tenth Defendant

AND:
AMOS PIRIKA AKO
Eleventh Defendant

Waigani: Miviri J
2021: 17th & 20th August  

PRACTICE & PROCEDURE – Judicial Review & appeals – notice of motion –Application to discharge interim restraint Order 16 Rule 13 (1), Order 4 Rule 37, Order 12 Rule 1, Order 12 Rule 8 (4) NCR– State Application – change of circumstances – Second Application – State Role under Oil & Gas Act Sections 47 & 168 & 169 – Social Mapping Landowner Identification Studies – Not dependent on Maintaining SABL Title – motion to set aside granted – matter adjourned to directions – cost follow the event.

Cases Cited:
Ramu Nickel Ltd v Temu [2007] PGNC 113; N3252 
Lau v Maniwa [2016] PGSC 47; SC1528
Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522 
Wolutou Incorporated Land Group v Manau [2021] PGNC 28; N8788 
McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 
Bernard v Duban [2016] PGNC 121; N6299
Pelego v Pok [2021] PGNC 50; N8745 
Counsel:

O.  Dekas, for the Plaintiff
R. Uware, for the First, Second, Third, Fourth, Fifth & Sixth Defendants
J. Mesa & Patane, for Eight Defendant 

					RULING 
 20th August, 2021
1.	MIVIRI, J: This is the Ruling on the First, Second, Third, fourth, sixth and seventh defendants notice of motion filed 05th August 2021, pursuant to Order 16 Rule 13 (1), Order 4 Rule 37, Order 12 Rule 1, Order 12 Rule 8 (4) of the National Court Rules and Section 155 (4) of the Constitution to set aside the Interim Orders of this Court of the 21st November 2019. Which are in the following terms:

(i)	Pursuant to Order 12 Rule 1 of the National Court Rules that the Fourth defendant, its servants, or agents be restrained from conducting Social Mapping under section 47 of the Oil and Gas Act 1998 and accepting any report, findings or recommendations on the Social Mapping and Landowners Identification Studies relating to the Customary Land, Described as Portion 8C, Volume 043 Folio 106, Milinch Auri Fourmil Kikori and Karamui, Gulf Province where the Papua LNG Project is located until such time, the Court determines the issues before it.

(ii)	Pursuant to Order 12 Rule 1 of the National Court Rules the Fourth DefenPdant, its servants or agents be restrained from making any determination under section 168 and identification of Land Beneficiaries under section 169 of the Oil and Gas Act 1998 until such time the Court determines the issues before it.

(iii)	Pursuant to Order 12 Rule 1 of the National Court Rules the Fourth Defendant, its servants or agents be restrained from commencing a development forum under section 48 of the Oil and Gas Act 1998 until such time Court determines the issues before it. 

2.	The Court-imposed return on the 2nd December 2019 at 9.30am. That did not eventuate but on the 11th December 2020, a similar application as here was moved by the eighth defendant Total E & P Limited, which was refused. It was held that Total was not the subject of the order and could do as it opted, conduct Social Mapping and Landowner Identification Studies. It was not breaching the order if it did because it was not covered. The application was not sustained. 

3.	This is the second time that this motion has been moved. This time it is by the State as the representative of the 8.5 million People of this Country, which includes the People of the Gulf Province, and in particular the people of Kikori and Baimuru where the subject land of the dispute in the substantive cause of action is located. The Customary Land described as Portion 8C, Volume 043 Folio 106 Milinch Auri, Fourmil Kikori and Karamui Gulf Province, where the Papua LNG Project is located. 

4.	Land in Papua New Guinea is primarily not freehold but by the tribe clan and follows patrilineal or matrilineal by genealogy. And to register into a Special Agricultural and Business Lease (SABL) avoids this, and there is potential to mislead and entice away from those who are immediately at heart to the subject land. Particularly in the light of the benefits that derive from developments such as the present: Ramu Nickel Ltd v Temu [2007] PGNC 113; N3252 (5 April 2007) is an example where constructive fraud was determined underlying and the SABL was set aside. Consent in SABL must come informed from genuine customary landowners and it is on the basis of which is derived into an SABL, because no consent informed has derailed: Lau v Maniwa [2016] PGSC 47; SC1528 (31 August 2016). In the light of these it would not prejudice that the current status restraint by the interim orders be redefined as argued by the State and its agents’ servants as co-defendants here. Because it would also be beneficial to either side of the dispute here.

5.	The preservation of Status quo has been maintained since when the interim orders were issued on the 21st November 2019. By the term interim it is in the mean and is not without end. Hence the application is not barred as made. The fundamental issue posed is, should the interim restraint be continued? If so on what basis? If not why and is it justified to so do?

6.	This court has canvased and glossed that issue in Mainland Holdings Ltd v Stobbs [2003] PGNC 10; N2522 (29 October 2003), where it was relevantly pointed that, “In terms of interim proceedings, the Court has wide powers to grant or refuse to grant, vary, or set aside, dissolve or discharge an interlocutory order either on application, in wide range of situations including change in relevant circumstances which render the continuation of the order no longer necessary or appropriate. It is also in the Court’s discretion to vary or discharge an interlocutory order, where the Conditions, if any, stipulated in the order have been met and it is no longer necessary or appropriate to sustain the Order. Further, it is in the discretion of the Court to vary or discharge an interlocutory order if it is subsequently discovered by the Court that the interlocutory order was founded on wrong principle.”

7.	Application was made 11th December 2020 by the eighth defendant Total it did not see the restraint varied. Because Total was not directed the restraint and could do what it was pleading in that motion. That is carry out the social mapping and Landowner Identification Study without the setting aside of the interim restraint. 

8.	Here the restraint is specifically addressed to the fourth defendant, the State and its agents or servants or officers, which are the other defendants named in the proceedings. Particularly first, second, third, fifth, and the Sixth defendants,  so up to now the restraint has been holding for one year and a half. And the substantive cause of action has not materialized despite that restraint. The State applicant is obligated by section 168 Royalty Benefit, and section 169 Identification of Landowner Benefits both of the Oil and Gas Act 1998 to give the project area landowners, the affected Local-level Governments, and the affected Provincial Governments of a petroleum project, if any, a royalty benefit in respect of that petroleum project. And their identification is in accordance with section 169 of the Oil & Gas Act. So that the Royalties are paid out complying, but to properly identify, it is important for the discharge of Social Mapping and Landowner Identification under section 47. The payment includes all landowners properly identified which include the plaintiffs. 

9.	Whereas the SABL is confined and restricted to named persons on official record for and on behalf. Which is not the case where social mapping and Landowner Identification is conducted. The canvas would be wider there, then by an SABL. On the converse just because the SABL of the plaintiffs is deregistered it does not mean and follow that they are excluded. As persons from that immediate project area, they are also entitled and therefore confirmation of and by the Social Mapping, and Landowner Identification called by section 47, must be given effect to, as it will entail what is due in law to the People the landowners, including the plaintiffs. Their interest in total would be heavier than of the designated named in an SABL scene. Because the named in an SABL are inclusive. It would in that respect be not prejudicial to uplifting the interim orders granted of the 21st November 2019.

10.	It is not depended on the existence of a SABL because what is done there is, creation of restricted access to those who are in there by that fact in law. The class of persons or group is in accordance with the registration and identification set out by the fact in law. It is therefore not to the world at large. And here given our circumstances and facts, it maybe named as it is with its wings spread to the four corners of the contour of that land, but the actual dissemination dissections of the benefit due is restricted to the person named within the Instrument registered. There are persons named in law in that SABL who own it in law. The restriction is to them. It is the same in the case of registration of an Incorporated Land Group Thus its net is not as wide as if a Landowner Identification Studies with social mapping is mounted. The latter would see more to the cue, than the latter. This is explicit from the section which is as follows Section 102 of the Land Act:
“102. GRANT OF SPECIAL AGRICULTURAL AND BUSINESS LEASES.
(1) The Minister may grant a lease for special agricultural and business purposes of land acquired under Section 11.
(2) A special agricultural and business lease shall be granted–
(a) to a person or persons; or
(b) to a land group, business group or other incorporated body,
to whom the customary landowners have agreed that such a lease should be granted.
(3) A statement in the instrument of lease in the approved form referred to in Section 11(2) concerning the person, land group, business group or other incorporated body to whom a special agricultural and business lease over the land shall be granted, is conclusive evidence of the identity of the person (whether natural or corporate) to whom the customary landowners agreed that the special agricultural and business lease should be granted.
(4) A special agricultural and business lease may be granted for such period, not exceeding 99 years, as to the Minister seems proper.
(5) Rent is not payable for a special agricultural and business lease.
(6) Sections 49, 68 to 76 inclusive, 82, 83, 84 and 122 do not apply to or in relation to a grant of a special agricultural and business lease.
(7) Notwithstanding anything in this Act, a special agricultural and business lease shall be effective from the date on which it is executed by the Minister and shall be deemed to commence on the date on which the land subject to the lease was leased by the customary landowners to the State under Section 11.”
11.	The State comprising the first, second, third, fourth, Sixth, and the seventh defendants now move this Court for the setting aside of the interim orders which have been maintained since first being issued on the 21st November 2019. The backdrop is that social mapping and landowner Identification studies is a mandatory requirement by section 47, whether it is prospecting, or retention, or development, it is a mandatory requirement upon the licensee to undertake. It is very important to verify and identify all landowners as equity and royalty benefits due follow with this condition satisfied. It has been held in ransom because the substantive cause of action is pending. It is the grievance of the plaintiff that he as a landowner by custom as registered proprietor of the subject land has had it cancelled by the alleged actions of the first second third fourth and sixth defendants. 

12.	On the other hand, there are very good reasons as to why Special Agricultural and Business Lease (SABL) have been the subject of cancellation by the Registrar of Titles, and the Department of Lands and Physical Planning. There are instances where the consent of customary landowners is not free and informed. There is no real consent or lack thereof, including unauthorized representatives and failure to comply with the Land Act where SABL have been declared void and of no effect, Lau (supra). The same has been experienced in the case of Incorporated Land Groups being granted SABL and has been made complicated where competing customary groups have entered: Wolutou Incorporated Land Group v Manau [2021] PGNC 28; N8788 (6 April 2021). It is therefore important that issue raised meets proper testing, that it is indeed representative of all the People of Iare, Koriki, Kaimare, Koravake, Pauaea, Vaimuru, Ipiko and Laviana (Maipua) Tribes of Baimuru Sub-District, Gulf Province.

13.	Order 12 rule 1 gives the court at any stage of the proceedings as is the case here, upon application to do what is applied for by the second, third, fourth, fifth and the Sixth defendants, it is not as to the substantive matter but interlocutory, an application to set aside the interim restraint now in place. This is allowed by this order. And Order 12 Rule 8 (4) is specific to the facts here to set aside the restraint current of the 21st November 2019. That is one year nine (9) months ago from today. And it has been in that position because the Plaintiff contended that the Status Quo must be protected maintained, leading to his substantive cause of action still pending, even after given the period set out above, with no trial date set to expedite. Social Mapping and Landowner Identification will not disrupt nor would it derail his cause of action. It would add food for him to add to his cause of action. It would confirm the people that he contends derive from where he says the SABL derives. That is not hurting nor prejudicially effecting his cause of actions.

14.	His interest as against the 8.5 million people of Papua New Guinea, represented by the State, and its agents, and servants, in this cause of action have stood by in the light of the interim restrain, to heed that his cause of action come to the table of Justice. This also predominately includes all the People of Gulf Province, and in particular the people of Iare, Koriki, Kaimare, Koravake, Pauaea, Vaimuru, Ipiko and Laviana (Maipua) Tribes of Baimuru Sub-District. They deserve the fruits of their land derived from their ancestors from time immemorial. They have lived on their land with their oratory genealogy of descendants without SABL and have successfully reared. Why should they all People wait out on one group by what has been introduced through no fault of theirs.  This action derives from 2019. It is now August 2021 and the action in its substantive form has not developed to a trial date via review books filed and the like to see out an eventual hearing for Judicial Review. No evidence has been placed that there is a definite time and date allocated to expedite to an eventual hearing. The end is by the Plaintiff as he raised the initiation and will be at heart to see material.

15.	Given these the observations set in McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (30 June 2000) are material here:
 
(i)	Whether there has been any delay in making the application;
(ii)	Whether leave to appeal is required and whether it has been obtained;
(iii)	Possible hardship, inconvenience, or prejudice to either party;
(iv)	The nature of the Judgement Sought to be stay;
(v)	The Financial ability of the applicant;
(vi)	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
(vii)	Whether on the face of the record of the Judgement there maybe indicated apparent error of law or procedure;
(viii)	The overall interest of Justice;
(ix)	Balance of convenience; and
(x)	Whether damages would be sufficient remedy.

16.	This is not an appeal but it is containment of rights flowing in law which has been supressed because of a restraint obtained by the Plaintiff. There are indeed highlights set out above that what is preliminary by section 47 cannot take place to heed section 168 and 169 so that the fruits of the land are enjoyed by those of the land. These include the plaintiffs in addition to all. That is now a hardship experienced by those immediate to the land predominately all the People of Gulf Province, the people of Iare, Koriki, Kaimare, Koravake, Pauaea, Vaimuru, Ipiko and Laviana (Maipua) Tribes of Baimuru Sub-District Gulf Province, and the 8.5 million Papua New Guineans. The Project is a national Project and must benefit its people the effect of the restraint fades that fact. 

17.	It is not mere prejudice but a serious prejudice because of the magnitude seen out in the light of the affidavit of David Manau sworn of the 03rd August 2021 filed the 05th August 2021. He is the Secretary of the Department of Petroleum & Energy. He is fully aware of the substantive cause of action as well as this interim restraint. In particular that the order of the 21st November 2019 restrained the State from conducting social mapping under section 47 of the Oil and Gas Act.

18.	But given that fact, the Department of Petroleum is the regulator of the Oil and Gas Industry, and administers the Oil and Gas Act, for an on behalf of the People including the Plaintiff, the Company licence holder of the petroleum tenement, and the landowners. And it is the mandatory duty of the State through its Department to identify the landowner beneficiaries, who shall represent and receive benefits on behalf of the grantees of the project benefits.

19.	He’s evidence continues relevantly, “The plaintiff is fully aware of the visible petroleum resource and natural gas present in PRL-15 Licence area, which includes the subject land, and the interest of the operator, Eighth Defendant- Total Energies EP PNG Limited (formally Total E & P PNG Limited), on behalf of the Licence of PRL-15 to commercialize this raw petroleum resource via the Papua LNG Project.

20.	It is therefore in the best interest of the Department of Petroleum & Energy as regulator of the Oil and Gas Act to ensure that Total Energies EP PNG Limited as Operator of PRL-15 and on behalf of the Licence, complies with section 47 of the Oil and Gas Act 1998 and conducts its social Mapping and Landowners identification studies as a prerequisite to any petroleum development licence (PDL) application and it is an important prerequisite in determining the success of the PDL application.”

21.	Total Energies EP PNG Limited, as Licence and operator of Petroleum Retention Licence-15 (PRL 15) submitted the six-month report for the period 30th November 2019 to 29th May 2020 in December 2019.”

22.	The continued existence of the restraint, means these reports that are due by the process and requirement of law, cannot be fulfilled between the State and Licensee, Total Energies EP PNG Limited to the fullest extent, to give effect to the Oil and Gas Act: Bernard v Duban [2016] PGNC 121; N6299 (27 May 2016).

23.	Developments that are intended between 2021 and 2023 by the State and the licensee are now threatened. The effect to income to the Budget is not online as intimated despite the projections by the Prime Minister. It is prudent that the Minister is called to discharge his duties by the Act and not left in limbo if the restraint continues. Therefore, in all fairness the restraint is cumbersome and deteriorating the good developments and works. Its continued existence will be more deteriorating than beneficial to the theme of the Oil and Gas Act and the players in there both sides of the equilibrium to the dispute: Pelego v Pok [2021] PGNC 50; N8745 (8 February 2021) and Bernard (supra). 

24.	Weighed with the affidavit of Roy Evara in response sworn of the 16th August 2021, he makes no material gain, or grounds, to advance that the restraint remains. The administration arrangements to see out the SABL are in his prerogative as the plaintiff. It does not contain basis upon which status quo will be mandated to remain. That is not the same with the affidavit moving of set out above of David Manau. It is clear the utility in upkeeping the restraint does not outweigh, because by the discussion set out above, there is room discharged to the required balance by the applicants, second, third, fourth, sixth and the Seventh defendants, for the uplifting of the restraint set the 21st November 2019 forthwith.

25.	Even the affidavit of Otto O, Dekas of the 16th August 2021, filed that same day, explaining and shifting that the fault is of the defendants and their lawyers not agreeing to the propositions under the rules to have the matter moved. The fact of the matter is the matter is not ready, to the extent of a compilation of the settlement of the Statement of Agreed and disputed Facts and Legal issues for trial. It was supposed to have been filed Friday 06th August 2021, which has lapsed without compliance. His clients took it upon to institute the duty is theirs to see out to trial. They have not by the rules. It is not in their favour in an application as is the present to allow further as it would be leading to inordinacy of the matter. Which is clear of the breaches of the Orders of this Court dated the 19th July 2021, entered 22nd July 2021, that has been breached in that, there is no extract of argument let alone the circulation of an index to the review book to be affected today, 20th August 2021.

26.	Read with Mainland Holdings Ltd (supra) the overall interest of Justice is foretelling uplifting rather than maintaining. As the balance of convenience does not warrant that it be maintained given. Because damages would not be an adequate remedy given the gravity of the project, and the players on both sides of the equilibrium to it. And the grave consequences that foretell should it continue. The aggregate is that the applicants have discharged the balance of preponderance, and their motion of the 05th August 2021 is granted that the restraint issued dated the 21st November 2019 by this Court is set aside forthwith. 

27.	That pursuant to Order 16 Rule 13 (1), Order 4 Rule 37, Order 12 Rule 1, & Order 12, Rule 8 (4) of the National Court Rules and Section 155 (4) of the Constitution and the inherent powers of the Court, the Order of this Court dated the 21st November 2019 is set aside and has no effect forthwith.

28.	The costs of this application will be in the cause.

29.	The matter will be called at directions on Monday 06th September 2021 at 9.30am in respect of the pending substantive matter.

30.	The formal orders of the Court are:

(i)	The application of the First, Second, Third, fourth, sixth and seventh defendants is granted.
(ii)	The interim orders granted on the 21st November 2019 are set aside forthwith.
(iii)	Cost will be in the cause.
(iv)	The Substantive proceedings are adjourned to the next directions date Monday 06th September 2021 at 9.30am further directions.
Orders Accordingly.
__________________________________________________________________
Raymond Obora Lawyers: Lawyer for the Plaintiff	
Office of the Solicitor General: Lawyer for the First, Second, Third & Fourth Defendant
Corrs Chambers Westgarth: Lawyer for the Eight Defendant/Applicant