Tribune Mount Kare Gold Ltd v Garry [2022] PGNC 499; N10032 (16 November 2022)

N10032

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 21 OF 2019

TRIBUNE MOUNT KARE GOLD LIMITED formerly known as NEW BRITAIN LIME & CEMENT LIMTED
Appellant

V

JERRY GARRY IN HIS CAPACITY AS THE MANAGING DIRECTOR OF THE MINERAL RESOURCES AUTHORITY
First Respondent

AND
STANLEY NEKITEL AS THE REGISTRAR OF TENEMENTS
Second Respondent

AND
GLOBAL MINING GROUP LIMITED (GMG)
Third Respondent

Waigani: Miviri J
2022: 11^th & 16^th November

PRACTICE & PROCEDURE – Appeal Section 125 (3) Mining Act 1992 – Sections 30, 113, 114, 100, 101, 102, 125 Mining Act – Register of Tenements – Registration – Priority of Applications – Preliminary Examination of Applications for Grant or Extension – Restriction on Application – Duties of Registrar – Exercise of Discretion Managing Director – Whether Error In – No Error Demonstrated – Appeal Dismissed – Costs follow event.

Cases Cited:

Tex Onsite (PNG) Ltd v Nekitel [2017] PGNC 188; N6781
Nambawan Super Ltd v Kimas [2013] PGNC 23; N5062

Counsel:

S. Gigmai, for Appellant
W. Mai, for the First & Second Respondents
I. Shepperd, for the Third Respondents

DECISION

16^th November, 2022

1. MIVIRI, J: This is the decision on the appeal pursuant to section 125 (3) of the Mining Act 1992 by the appellant, aggrieved by the decision and direction of the Managing Director of the Mineral Resources Authority pursuant to Section 125 (2) of that Act made on the 14^th March 2016.
   
2. That section is in the following terms:
   

“Rectification of the Register.

(1) Where the Registrar or another person discovers that there has been–

(a) an omission of an entry from the Register or the rejection of an instrument presented for registration; or

(b) an entry made in the Register without sufficient cause; or

(c) an entry wrongly existing in the Register; or

(d) an error or defect in an entry in the Register,

the Registrar or that other person may make an application to the Director for rectification of the Register.

(2) On receipt of an application under Subsection (1), the Director may–

(a) make an investigation into the matter; and

(b) direct the Registrar to rectify the Register in any matter which the Director considers requires rectification.

(3) A person may appeal to the National Court against a direction or decision or to seek a decision by the Director under Subsection (2), and the National Court may make such order as it considers necessary to settle the matter.

(4) The Registrar shall give effect to an order of the National Court under Subsection (3).”

3. Rectification is the action of putting something right as in putting right errors in common letter writing. Here in the context of section 2 of the Mining Act “Register” means the Register of Tenements established and maintained under Section 113;” And the Register of Tenements “contain details of all registered applications for tenements and all details of their subsequent grant or refusal and of such other particulars as may be prescribed in relation to those tenements;” Section 113 (2) of the Act. And the Registrar has discretion upon discovering an error or omission to make that application to the Director, the first respondent incumbent to rectify the Register. And the first respondent may make or investigate the matter, after which directions are issued the second respondent to rectify the Register in accordance. These directions by the first Respondent to the second respondent implementing the dictate of that section is now challenged here. And the directions challenged now on appeal were:
   
   • (a) The Registrar is hereby directed to rectify the Register by removing the application of GMG ELA 2429 registered in the Register on the 18^th December 2015 pursuant to section 125 (1) (a) and (c) Mining Act.
     
   • (b) The Registrar is further directed to rectify the Register by reinstating ELA 2429 on the Register but with effect from 14 January 2016.
     
   • (c) The Registrar is directed to register on the Register (subject to preliminary examination and meeting the criteria of section 101 Mining Act) the NB application with effect from 25^th January 2016 as a 2^nd priority application over the ground in ELA 2429.
     
   • (d) The Registrar may undertake the preliminary examination of the applications of CMS and Summit and register those applications if each meets the preliminary examination criteria of section 11 Mining Act.
     
   • (e) GMG, NB, CMS, and Summit are to be notified in writing through their Legal Representatives, of these rectification and other directions, which will be entered in the Register 14 days after the date of the notification letter.
     
   • (f) Any regulatory processes which require subsequent change arising from these circumstances and directions be reviewed and implemented by the Regulatory Operations Division.
     
4. Further the appellant appeals against that part of the decision and directions whereby the Managing Director directed the Second Respondent:
   
   • (a) Remove the Third Defendants existing application registration (the Managing Director accepting the Mt Kare land was not available for the grant of an exploration licence when the application was lodged);
     
   • (b) Reinstate the third Defendants application in the Register with effect from 14^th January 2016 (the first date on which the Mt Kare land was available);
     
   • (c) To register in the Register (subject to the preliminary examination and meeting the criteria of section 101 Mining Act) the appellant’s application with effect from 25^th January 2016 as a 2^nd priority application over the ground in ELA 2429.
     
5. It is the appellant’s argument here that the second respondent erred in law, or in mixed fact and law by accepting and registering the third Respondent’s application for an extension of exploration license in the register of tenements on 18^th December 2015, because section 30 specifically provides that no valid application for an exploration licence over the same land shall be made by any person, within a period of 30 days after the date on which the land ceased to be subject of an exploration licence. This is a material point which must have the evidence to advance the cause of the appellant.
   
6. Relevantly here that would be the affidavit of Stanley Nekitel document number 26, filed of the 18^th June 2019. He is the Registrar of Tenements and the second respondent to this proceeding. He deposes at paragraph four (4) that on the 25^th January 2016, a legal representative for the Appellant one Stephanie Gibson of the firm of Fiocco & Nutley, sole director, and shareholder of the Appellant Company at that time attended at the office of the Mineral Resources Authority (MRA) to lodge an application by the Appellant Company for grant of an exploration licence.” I did not accept that application as I considered it did not meet the requirements of section 101 (a) of the Mining Act as per the practice and procedure of MRA current at that time, which practice was explained for the applicant.
   
7. The application sought to be lodged by the Appellant (NBL&C) was for the grant of an exploration licence to it over land which in part included land which had previously been the subject of an exploration licence, namely EL 1093 issued to Summit Development Limited (Summit). And “EL 1093, by its stated term, expired on 28^th August 2014, Summit had applied to extend the term, but that application was refused by the then Minister for Mining by Notice dated 14^th December 2015 and such refusal was registered in the Register of Tenements (Register).
   
8. Following the refusal of the Minister to extend the term of EL 1093 and the expiry of its term, the land which had been the subject of EL 1093, subject to a 30-day moratorium period, became available for grant of a new exploration licence. The time and order of lodgement of any new application for an exploration licence over such land become important because, amongst other things, the Mining Act provided to the effect that the application lodged first in time with the Registrar would be considered and determined priority over other applications lodged later with the Registrar. If the first in time application was subsequently unsuccessful, the next application lodged with the Registrar would be considered and determined.
   
9. When the appellant sought to lodge its application on 25^th January 2016, an application by GMG Global Mining Group Limited (GMG), the third respondent, for an exploration licence over the subject land (ELA 2429), had already been lodged and registered in the Register on 18^th December 2015.
   
10. On 27^th January 2016 a detailed letter addressed to the then Managing Director of MRA and dated 26^th January 2016 was received from Fiocco & Nutley Lawyers on behalf of the Appellant seeking rectification of the Register under section 125 of the Mining Act (the Rectification Application).
    
11. By the Rectification Application the Appellant was in effect seeking to have its application accepted and registered on the Register and to have the application of GMG removed from the Register. The effect of this would be that the application of the Appellant would be regarded as having been lodged and registered first in time, thus making it the first application to be considered and determined for the issue of a new exploration licence over the subject land.
    
12. The Rectification application was considered by the then Managing Director and an investigation undertaken. By letter dated 14^th March 2016 the managing Director directed me, as Registrar , under section 125 of the Mining Act to, in effect, rectify the Register as follows (the Rectification Directions); And that is annexure “SN-2” true copy of the First Respondent’s letter dated the 14^th March 2016 containing the rectification directions. On the 14^th March 2016 Fiocco Nutley Lawyers for the appellants were advised of the Rectification Directions and that necessary entries would be registered in the Register after 14 days which was on or after the 29^th March 2016. And the managing director’s letter of the 14 March 2016 containing the rectification Directions was provided to the lawyers for the Appellant.
    
13. Effectively this evidence is mirrored in the affidavit of Jerry Garry of the 03^rd of March 2022. He is the Managing Director of the Mineral Resources Authority (MRA), the first respondent in the proceedings. He confirms and relies also on the affidavit of Stanley Nekitel Registrar of Tenements. Both this evidence back each other and are consistent in their material aspects. He states that “the subject land is an advanced exploration project with “proven” mineral resources. As such, the applicant applying for an exploration licence over this land must have the financial capability as is a requirement under the Mining Act to develop the project into a mine. As such, there is no guarantee that the Appellant or the third Respondent will be granted the exploration licence as each application will be critically assessed by MRA to ensure that the applicants to this land meets the financial and technical requirements as stipulated under the Mining Act.”
    
14. This evidence shows out that on the register was GMG because Following the refusal of the Minister to extend the term of EL 1093 and the expiry of its term, the land which had been the subject of EL 1093, subject to a 30-day moratorium period, became available for grant of a new exploration licence. And the person first in time 18^th December 20 to lodge its application for an exploration licence over the subject land (ELA 2429), was GMG who had already been lodged and registered in the Register on 18^th December 2015. And the appellant 25^th January 2016, which meant in compliance with section 100 Priority of Applications, third Respondents was first in time and had priority in the consideration following the ambit of sections 101, Preliminary examination of applications for grant or extension which was conducted in the presence of the applicant, or agent of the applicant. And these were that a substantial portion of the land over which the application is made is available for the grant of that type of tenement to the applicant under the Act. Secondly that the application was in the prescribed form and had all required particulars completed within. And that it had been lodged in triplicate signed by or on behalf of the applicant. And all documents accompanying such had been duly lodged. Including the application fee and late fee due under section 99 of the Act.
    
15. And after this preliminary examination section 102 would be implemented. That if the Registrar was not satisfied that all matters had not been verified, he would not accept nor would he register the application in the Register. He would immediately return all documents to the applicant or his agent. Here it would appear that section 103 came into play, because both third respondent and the appellant did not have their documents returned to them or agent. Both were held on record by the Registrar and treated as the third respondent was first to lodge its application after the moratorium, which was not a bar because of the reasons set out above. And for the reasons set out above the appellant was the second in time to be considered.
    
16. Given these facts the contention on appeal set out from (3a) to (3i) did not stand because there was no error either in law or mixed fact and law committed by the first and second respondents in the way they treated the matter. In fact, what is shown out by this evidence showed compliance and adherence of the law in the various sections set out above. Because it is the first respondent in making that decision asserted that it is fair and equitable after considering all of the circumstances and that accordingly the Third Respondent had been the first in time to apply for the EL1093, which he affirmed with the directions he made pursuant to section 125 of the Act. Which section is discretionary with the use of the word “may”. It is not in mandatory terms and therefore given the facts here upon the first and second respondents, there is no error of law or mixed fact and law committed in the discretion exercised. All grounds of appeal hinge on this fact in law and would fail considering.
    
17. Because what is evident is that the first and second respondents acted reasonably and within the confines of the law in the various sections set out above in the way that both have acted. Section 30 of the Act does not come into play to make illegal what the first and second respondents do given the facts set out in the affidavit of both first and second respondents set out above. Particularly where second respondent says; “Given the above, I therefore find as follows-
    
    • (1) The date of determination of the Minister for Mining on an application for extension of a tenement is the expiry date of the tenement for the purposes of section 30 Mining Act.
    • (2) Accordingly, the 30 day moratorium preventing new applications, following the expiry of EL 1093 on 14 December 2015, commenced on the day following and did not expire until 14^th January 2016.
    • (3) GMG’s application EL 2429 should not, therefore, have been registered by the Acting Registrar on 18^th December 2015.
    • (4) It is noted there was no fault on the part of GMG, as they relied upon the advice and actions of the Acting Registrar with regard to the regulatory practice and procedure on such matters in effect at that time.
    • (5) It was noted that. Had GMG been correctly advised on 18^th December 2015 that they could not lodge an application before the end of the moratorium period, being 14^th January 2016, GMG would have had the option to apply again on the first available date.
      
18. Given these facts it was open to the first and the second respondent in the way that they exercised their discretion. For the Acting Registrar he accepted and registered the Third Respondent’s application on the 18^th December 2015 believing it to be outside of the moratorium period. He verified it and explained that fact to the Appellant who attended 25^th January 2016 to lodge its application. So, the blame will not fall upon the Third Respondent. And therefore, appeal against these will not succeed in favour of the appellant. Grounds 3a to 3i of the appeal grounds fail and do not stand in favour of the appellant given. All other grounds of appeal do not go past this fact now settled and therefore will fail in the way set out given. Because the first respondent’s evidence is, “The fair and equitable outcome, taking into account all the circumstances, is for GMG to retain priority tenement application position. GMG should not suffer prejudice as a result of any actions of the regulatory authority.” And in this regard, it is discretion within the first respondent to investigate the matter and then direct the Registrar second respondent to rectify the Register in any matters which he considers requires rectification pursuant to sections 125 (2) (b) of the Act.
    
19. Effectively jointly both these evidence are of public servants who have no interest in the duties that they administer except to serve the State where they are set out upon. And what they both have done is to carry into action what the particular sections of the Mining Act has called upon them in their respective roles. As that Act is very comprehensive in the way it covers all facets of Mining and the like in its application for licences. Both men have acted within the domain of the empowering sections by that legislation and have not fallen into error in the way they have exercised their individual discretion. And it makes no headway for the appellant when compared with the evidence that he has relied on in the likes of mostly Lawyers who have lodged the application, conversed with the Registrar, or conducted searches relating. They are self-serving with bold assertions not added to by any independent evidence to strengthen the assertions made. By their very nature they do not advance the course of the appeal. Because taken at its highest the affidavits relied of in particular Powrie, are self-serving and would hold water in Judicial review, because the grounds contended of reasonableness, natural justice and bias revolve there, not in an appeal as is the case here. The boldness in his evidence is not supported or verified to hold water in the appeal contended against the respondents, notably the first and the second.
    
20. And it is trite upon the appellant to identify the actual breaches in law in the discretion exercised by the first and second respondents. Because in all grounds advanced from (3a) to (3j) the allegation against both first and second respondents is error in mixed fact and law. And it is incumbent upon the appellant to show that against the discretion of both. Because reading section 125 applied to the facts set out above, there is no error in mixed fact and law pointed out by the appellant consistent with this Courts view of a similar setting in Tex Onsite (PNG) Ltd v Nekitel [2017] PGNC 188; N6781 (31 May 2017). And in another setting under section 142 of the Land Act seen in Nambawan Super Ltd v Kimas [2013] PGNC 23; N5062 (27 February 2013), non-compliance with the law must be shown by the appellant to sustain his appeal.
    
21. The facts deduced settle that Mt Kare land had been subjected to an exploration licence (EL 1093 issued to Summit Development Limited. Shortly prior to its expiration in August 2014, Summit made an application for the grant or an extension of that licence. And by section 112 of the Act that can be done. But it was refused by the Minister and notice was caused the Registrar of the 14^th December 2014 which was placed in the Register. And in accordance with section 145 Rights and Liabilities of the holder upon cancellation or expiry all rights under Summits Exploration Licence ceased on the 14^th December 2014. And section 30 also of the Act provided that no application is to be made in the 30 days after the expiration of the Exploration Licence.
    
22. It is undisputed that on the 18^th December 2015 the Third Respondent attended at the Office of the Registrar at MRA to a lodge an application for an exploration licence over an area of land known as Mt Kare. That after undertaking a preliminary examination of the application fulfilling section 101 of the Act, he accepted the application for registration, registered it in the Register. Which date of lodgement is recorded as of the 18^th December 2015. And remains undisputed that on the 25^th January 2016 the appellant attended at the Registrar’s office to lodge an application for an exploration licence over the land which included Mt Kare land subject of the Third Respondent’s application. Appellant was advised of the earlier application by the Third Respondent and refusal of that by the Acting Registrar. This summary of facts derails the appeal and would dismiss it on all accounts levelled and there is no error either in law or mixed facts and law demonstrated to the required balance by the appellant. His appeal fails on all fronts and costs will follow the event against him in favour of the respondents.
    
23. The formal orders of the Court are:
    
    • (i) Appeal is dismissed.
    • (ii) The cost of the proceedings follows the event against the appellants in favour of the respondents if not agreed to be taxed.

Orders Accordingly.

__________________________________________________________________

Fiocco & Nutley Lawyers: Lawyers for the Appellant

Allens: Lawyers for the First & Second Respondent

Ashurst PNG Lawyers: Lawyers for the Third Respondents