Ayakali v Pok [2023] PGNC 352; N10515 (11 October 2023)

N10515

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 215 OF 2019

ENODOSE AYAKALI, ALBERT KATI AND MARTIN TINDIPU OF WARAPIA Clan of Tuguba Region in Hides 7 for and on behalf of themselves and 17 others whose names appear are listed at Schedule 1 of this Originating Summons
First Plaintiff

And
Mr LAI HARALU, KARIBE NGAI AND TOLIPAGO MUGUPIGO OF HONAGA CLAN in Tuguba Region in Hides PDL 7 for themselves and eighteen (18) other Plaintiffs whose names appear are listed at Schedule 2 of this Originating Summons of Hides PDL 7
Second Plaintiffs

V
HON DR. FABIAN POK MP, MINISTER FOR PETROLEUM
First Defendant

And
LOHIAL NUAU DIRECTOR OIL & GAS AND ACTING SECRETARY FOR THE DEPARTMENT OF PETROLEUM
Second Defendant

And
DAIRI VELE SECRETARY OF TREASURY
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2023: 04^th & 11^th October

PRACTICE & PROCEDURE – Judicial Review & Appeals – Ministerial Determination Beneficiary Category “A” & “B” – Section 169, 169A & 170 Oil & Gas Act 1998 – Whether Hearing Accorded Plaintiffs by Minister – Discretionary – Whether Amendment to Determine Real Questions in Controversy – Correction of Defects or Error – No Prejudice Or Injustice to Other side – Bona Fide Not Mala Fide – Application Granted – Costs In the Cause.

Cases Cited:
Dupnai v Weke [2016] PGSC 43; SC1525
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192
Vakinap v Kambanei [2004] PGNC 264; N3094
Nining v Mann [2013] PGNC 153; N5338
Eu v Rosso & Ors [2023] PGSC 63; SC2401

Counsel:
N. Yalo, for the Plaintiffs
B. Kulumbu, for the State Defendants

RULING

11th October 2023

1. MIVIRI, J: This is the ruling on the substantive notice of motion of the plaintiff who challenges the decision of the Minister for Petroleum and Energy, Honourable Dr. Fabian Pok made on the 09^th March 2019 and published in the National Gazette No. G194 on Wednesday 13^th March 2019.
   
2. The terms of the subject Notice of motion filed of the 19^th August 2019 is in the following:
   
   • (i) An Order in the nature of certiorari to move into this Court and quash the said determination of the First Defendant dated 09^th March 2019 which was endorsed by Second and third defendants and published in the National Gazette No. 194 on Wednesday 13^th March 2019 pursuant to Section 169 and 170 of the Oil and Gas Act 1998 in respect to Tuguba Region within Hides PDL7.
     
   • (ii) A declaration that the plaintiffs were denied their rights to be heard contrary to Section 57 of the Constitution when the Minister (First Defendant) made the said determination and placed them under category “B” beneficiary List rather than under category “A” beneficiary list for Tuguba Region.
     
   • (iii) A declaration that the First Defendant erred in law in failing to consult and or hear the Plaintiffs in relation to Sharing of benefits in respect of Tuguba region, Hides PDL7 before making the said Ministerial Determination in respect of the said Tuguba region and placing the Honaga and Warapia clans under category “B” beneficiary List where the said First and Second Plaintiffs clans were allocated significantly less benefits compared to the category “A” beneficiary clans despite having substantial customary landownership interest and being most affected clans within the Tuguba region.
     
   • (iv) And Order in the nature of Mandamus directing the First, Second and Third Defendants to consult the Plaintiffs and other affected clans within Tuguba region in relation to the issue of sharing of benefits under section 170 of the Oil and Gas Act 1998.
     
   • (v) Alternatively, an order in the nature of mandamus directing the First, Second and Third Defendants to remove the Warapia and Honaga clans from category “B” beneficiary list in Tuguba Region and place them under category “A” in Tuguba Region Beneficiary list Hides PDL7.
     
   • (vi) Costs of the Proceedings.
     
3. The pleading relies on the affidavits, firstly of Endorse Ayakali sworn of the 03^rd July 2019 filed of the 09^th July 2019, one of the leaders and appointed representative of the Warapia Clan with the Tuguba Region of PDL7. Secondly of Karipe Ngai sworn of the 03^rd July, 2019 filed of the 09^th July 2019, one of the leaders and appointed representatives of the Honaga Clan located within the Tuguba Region of PDL7. Both affidavits complain about the unfair distribution of benefits given to their respective Clans of Warapia and Honaga. And make this assertion on their respective generation of their clans. And contention of the ownership of the land mass within the Tuguba region as owned by their respective clans.
   
4. Each deponent sets out from paragraph 4 to 7 names of various clans that collectively own that land area which is in their view about 80 percent of the land in that area. Both affidavits from paragraph 8 to 14 acknowledge a process that was taken in which they also participated in attendance as clans from the Tuguba Region of PDL7 identifying their final list of the clan and leaders. Both individually depose as representatives of their respective clan in attendance at the LOBID project phase 2 representing their individual clans of Honaga and Warapia. Which is evidenced by annexure “B” copy of the LOBID Project phase 2, 2016 showing the distribution list in their respective affidavits, but were unsatisfied with being placed in category “B” and protested to be placed in “A”.
   
5. Both plaintiffs’ deponents confirm that on the 14^th January 2019 the Minister the First Defendant by way of a paid advertisement publicly announced through the Post Courier annexure “C” the start of the LOBID, Landowner Beneficiary Identification and Distribution” for 2019. And in that advertisement, he invited all landowners both directly and indirectly to attend the LOBID exercise which was formally known as Clan vetting. And both deponents attended the LOBID held at Hides 4 Exxon Mobil Camp on the 24^th January 2019. From Paragraph 15 to 21 of their respective affidavits are detailed work including attendance at the designated LOBID area with one Ishmael Panda and Mathew Wanger from the Department of Petroleum, representatives from MRDC, Security Personal and all other members of the Public. Both deponents acknowledge that According to the First Defendant, LOBID is an important prerequisite for a Ministerial determination under section 169A of the Oil and Gas Act. And that the primary reason for the LOBID was for the Defendants to attend on ground and confirm that there are three major beneficiary clans for the Tuguba Region. And identification of the project area landowners and their measure of occupation. Both deponents plaintiffs in their respective affidavits assert that the Nguane Clan, Honaga Clan and the Warapia Clan own the majority of land in the Tuguba Region Block 1768. And based on this fact insisted that they be category “A” not “B”. Both contend that there was a customary meeting between their representatives confirming this fact.
   
6. Arising out of this LOBID exercise both confirm at paragraph 27 to 33 the gazettal of the determination on Wednesday 13^th March 2019 published in the National Gazette G194, annexure “D” endorsed by the second defendant Lohial Nuau Acting Secretary for Petroleum and the third defendant, Mr Dairi Vele Secretary for Treasury. Both assert that they are genuine landowners and the clan vetting depicted out by the clan consent form. And they do not know which clan consent form was used to make the determination. And that the Ministerial determination was baseless and not done properly. Therefore, the LOBID or clan vetting is ultra vires and illegal.
   
7. Paragraph 34 to 39 is self-serving statements by both deponents and do not advance the material relied in that respect in their cause. Both affidavits have referred to the attendance of the defendants, in this regard Lohial Nuau has sworn an affidavit dated the 04^th October 2019 as the Acting Secretary of the Department of Petroleum and Energy. He is fully aware of the LOBID exercise for Hides PDL1 & 7 carried out by the Department. Annexure “A” is a true copy of the date of receipt of the full-scale social mapping and landowners’ identification report for PRL 11 which includes the Hides areas. That the identification of landowners as per section 47 of the Act is a process which belongs to the licensee. The landowner beneficiary Identification (LOBID) is the Department of Petroleum administrative due diligence process. That the Department of Petroleum go through to ensure that section 169 is fully satisfied before the Minister signs the Instrument of Ministerial Determination which is the final outcome of the identification process referred to as LOBID. And which objective was to review all available data including the interim Ministerial Determination of 2014 G192 in consultation with the landowners to verify and authenticate and agree on the final lists of beneficiary clans including agree on the sharing of percentages. Whatever that has been agreed shall be submitted to the Minister for Petroleum to make full Ministerial Determination for the PNG LNG Petroleum Development Licence one and seven (PDL1 & PDL7). The landowners sign off consent forms as evidence of their agreement.
   
8. An application to review the ministerial determination can only be made within 28 days of the Ministerial determination. In April 2013 the Department of Petroleum commenced the LOBID phase 1 for the entire PNG LNG Project footprint. Which exercise was successfully completed in November 2013 and finalized list of clans for PDL1 and PDL7 were gazetted under the interim Ministerial determination No 192 of 19^th May 2014. Phase 2 was conducted on 15^th January 2019 and ended on 10^th March 2019. And the final list was gazetted on Ministerial determinations No G187. It is not subject to review for the determination of ownership of land. Because the review challenging must only challenge the determination of the major clans not the ownership of the land. And the determination of the major clan was done the Department of Petroleum through the transparent process LOBID. Landowners of the petroleum project were given opportunity to identify their major and minor clans and agree only to include major clans as beneficiaries in the Ministerial determination. And the plaintiff’s claim is mainly in relation to percentage split amongst themselves. The percentage split depends mainly on landownership within the proximity of the project site who are most impacted or even less impacted because of the project.
   
9. “The Brownfield landowners are the ones whose land has well head or a processing plant, Water source, etc. They are the ones with higher percentages while the less affected are with less percentage. The greenfield landowners are the ones who are impacted by road access or nearly areas. Hence it is proper for a determination of ownership of the land before the lands court. The plaintiff’s claim is baseless and thus should be dismissed with costs.”
   
10. In my view it is clear that there was an open and transparent process that was undertaken common to both sides of the dispute evidenced out by the affidavits that I have set out above. It is quite plain that the determination was properly accorded the dictate of section 169 of the Oil and Gas Act. All plaintiffs were identified as being affected and in what proportions and percentages were accordingly accorded firstly by draft and then finally determined and published widely in the Gazettal set out above. And People who were at the LOBID exercised included the plaintiffs as well as the Departmental representative including the second defendant with his officers. That is how serious the Department of Petroleum was in the LOBID exercise which in my view from the evidence set out above detailed that issue so that all were taken into account and accorded as it reflected the percentage due, either as Brownfield, or greenfield”. Section 169 Identification of Landowner beneficiaries has been made to the fullest in the way that the defendants conducted themselves on this occasion. There is no room in the way that the plaintiffs have alleged which the defendants have breached or not followed dictate of section 169. What is deposed to above leave no room except to say adherence and full commitment to the dictates of section 169 by the defendants. What is at loggerheads by the plaintiff is an internal matter which has no relevance to the identification of beneficiaries conducted by the defendants. It will not be the subject of review when there is strict compliance with section 169 by the State defendants.
    
11. It is a project that will benefit the people of that area including the plaintiffs. It was left to chance as to the identification of the beneficiaries but a distilled process that saw out equal benefits for all including the plaintiffs. It is questionable against the plaintiffs when that was conducted in 2019 and this application has now been dormant and moved now 04^th October 2023. Three years has gone without moving a muscle in bringing this Judicial review matter outstanding for that long: Dupnai v Weke [2016] PGSC 43; SC1525 (19 August 2016). It cannot be that genuine to wait three years to bring it on taking account of Order 16 Rule 4 and Rule 5. Time is of essence and but no heed here by the plaintiffs.
    
12. I find no error in the procedure because section 57 was heeded it was an open meeting and all involved were there including the plaintiffs who were heard, and answer given in the allocation that was made in percentage. Their respective affidavits detail this meeting corroborated by that of Lohial Nuau Acting Secretary of the Department of Petroleum and Energy. I have set out the particulars above which depict that the process was heeded and law complied with. All the two plaintiffs and the second defendant with others were at this LOBID exercise and their evidence is consistent that there was a detailed process. It was that which fed the Ministerial determination that was published particulars set out above.
    
13. It follows that there cannot be any declaration issued as pleaded when the evidence is consistent with observance of the law and the procedure set out by the law. There was consultation and the plaintiffs were heard which eventually led to the determination. And which hearing was for the Tuguba Hides region PDL7 before the Ministerial determination was issued and published. There was therefore no error in setting out the categories “A” and the Plaintiffs in “B”.
    
14. Certiorari did not lie pursuant because there was no error in the procedure to arrive at the categories that came out resulting. And Mandamus could not lie given both for directions to the First Second and third Defendants to consult the plaintiffs and the other affected clans because that was already done in detailed fashion confirmed by the evidence both for and against the relevant particulars, I have set out above. There will be no mandamus directing the First Second and third Defendants to re categorize in the way they have pleaded, that they go to “A” and the other goes to “B”. That will not happen as there is no ultra vires shown promptly justifying the mandamus in that manner pleaded. What has happened here detailed out by the evidence set out above is consistency observance of the law. It will not be disturbed by the pleading in any way or form pursuant because there is no evidentiary basis to sustain that fact.
    
15. Judicial review lies where there is process and procedure not followed to arrive at the Ministerial determination as here: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. And it is certainly not the case the Minister has exceeded his authority in the way that he made his determination because the evidence set out above show consistent adherence to proceed agreed to by both the plaintiffs and the defendants in their evidence. The process that is taken to arrive at a decision must be erroneous either by failure to observe dictates of law set out by Statute in the process taken certiorari lies: District Land Court, Kimbe; Ex Parte Nuli, The State v [1981] PNGLR 192. And similarly, mandamus lies to compel where duty upon a public official is not accorded and discharged, Vakinap v Kambanei [2004] PGNC 264; N3094 (29 November 2004. And Declaration lies consequently because the decision is not by a process of law. And would follow in similar vein as Nining v Mann [2013] PGNC 153; N5338 (30 August 2013) that the decision at first instance would be brought into Court and confirmed as correct in law and binding forthwith on the third defendant. Because it is made ultra vires Eu v Rosso & Ors [2023] PGSC 63; SC2401 (2 June 2023) and Nining (supra).
    
16. The evidence does not support and establish the pleadings to give the remedies sought by the plaintiffs. The motion is without merit and will be refused with costs to follow the event forthwith. This is a decision that was taken and published following on Wednesday 13^th March 2019 in G194 and further evidences filed of Steven Teya from the Department of Petroleum liaison officer affidavit dated 03^rd October 2019, present on the ground when the LOBID was conducted in C1 meeting room Hides Project area with annexure “A” true copy of the Clan Consent Forms do not evidence any dispute because the names were called out in public in that meeting. And he attaches the forms that were duly signed. His evidence is confirmed in all material particulars by the affidavit of the witness Panda Ishmael affidavit dated 03^rd October 2019. It is the same evidence by the plaintiffs set out above. It is beyond all preponderance that there was due observance of procedure under section 169 and 169A leading to the Ministerial determination that was published. That leaves nothing in view except to dismiss this Notice of motion being without merit. Cost will follow the event forthwith against the plaintiffs in favour of the defendants.
    
17. The formal orders of the Court are:
    
    • (i) The notice of motion for Judicial review is without merit and is dismissed forthwith.
      
    • (ii) Costs will follow the event forthwith against the plaintiffs in favour of the defendants.

Orders Accordingly.

__________________________________________________________________

Nemo Yalo Lawyers: Lawyer for the Plaintiff/Applicant

Office of the Solicitor General: Lawyer for the Applicant/Defendant