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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 265 OF 2023
BETWEEN:
KOKI JEREMIAH EKA for Himself and On Behalf of ANGALAINI WOYOPENE WAPE SUB-CLAN MEMBERS WHOSE NAMES ARE LISTED IN SCHEDUES A, B, &
C, ATTACHED HERETO
Plaintiff
AND:
JOE KAK RYANGO in his capacity as PORGERA MT. KARE PROJECT CO-ORDINATOR
First Defendant
AND:
MINERAL RESOURCE AUTHORITY
OF PAPUA NEW GUINEA
Second Defendant
AND:
HONOURABLE ANO PALA, MP AND MINISTER FOR MINING
Third Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
Waigani: Bre, AJ
2023: 27th November, 22nd December
CIVIL – PRACTICE AND PROCEDURE – originating summons – declarations sought - jurisdictional basis- Section 155(4) Constitution – nature of – customary landowner recognition as a sub-clan and representative – factual matters
ORIGINATING SUMMONS
Substantive hearing in which Plaintiffs seek declaratory orders.
Cases Cited
Akiko v Ekepa [2023] PGSC 90; SC2442
Ekepa v Nalepe [2020] PGNC 349; N8564
Ipara v Mineral Resources Authority [2011] PGNC 15; N4216
Lahari v Koloma [2019] PGSC 27
Masive v Okuk [1985] PNGLR 105
Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844
Ondalane v Ekepa [2023] PGSC 67; SC2413
Sanu v Tuke [2020] PGNC 15; N8187
Legislation
National Constitution, s155(4)
Mining Act 1992, Part V11.
Counsel
Mr Jacob Kumbu, for the Plaintiff
No Appearance First, Second, Third and Fourt Defendants.
DECISION
22nd December 2023
1. BRE AJ: INTRODUCTION: Jeremiah Koki Eka brings this action as a representative of the Angalaini Woyopene Wape subclan. He is seeking declaratory orders for the Angalaini Woyopene Wape subclan to be declared the 26th subclan and himself as its agent within the customary landowner beneficiaries of the Porgera Special Mining Lease area in Enga Province.
2. The Defendants were given sufficient notice of the hearing and the Affidavits relied on by the Plaintiff, but did not attend. I proceeded to hear the substantive matter.
Originating Summons
3. The substantive claim relies on Section 155(4) of the Constitution seeking the following declaratory orders:
EVIDENCE
4. The Plaintiff relies on the Affidavits of:
Affidavits of Service of:
SUBMISSIONS
5. Mr Kumbu for the Plaintiffs submits that the Plaintiff subclan are part of the existing customary landowners within the old Porgera Special Mining Lease area but have not been sufficiently represented as a subclan and had missed out in the old Porgera mine benefits on certain equity sharing participation arrangements that are available to clans with agents or representatives. The Plaintiff's argument is that they were represented by one agent, Mr Ipaya Lara who represented them and the Tiyani Kaimalo subclan without realising they should be separately represented and also entitled to the equity sharing benefits attributed to a subclan agent in their own right as a subclan. They seek these declarations to fully participate in the new Porgera Mine.
ISSUE
6. The issue for determination concerns whether the Applicants are entitled to the declarations.
LAW
7. Mr Kumbu submitted that the Court should consider the principles to grant declaratory orders as set out in Ipara v Mineral Resources Authority [2011] PGNC 15; N4216 (25 February 2011) at [9], as:
The only jurisdictional basis of the Plaintiff's claim is Section 155(4) of the Constitution and reads:
" (4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
(Emphasis mine)
ANALYSIS
8. In considering the submissions, I have considered the mode of the proceedings concerning the nature of the claim, the jurisdictional basis of the reliefs sought under Section 155(4) Constitution, the evidence of the Plaintiffs and three relevant decisions decided earlier by the Supreme and National Courts regarding factual matters that I have taken judicial notice of.
Mode of proceeding
9. Proceedings by originating summons are more appropriate where there are no substantial disputes of fact. The applicant's submissions are based on factual matters which have not been responded to by the Defendants. The submissions are not based on law to warrant a declaration of a legal or contractual right but are based on factual matters that seek the Court's inherent jurisdiction to grant declaratory orders to recognise a customary land group and its representative for purposes of financial benefits to be gained from the Porgera mine.
10. In Masive v Okuk [1985] PNGLR 105; the Court clarified that an Originating Summons should be restricted to matters where facts are not in dispute.
11. In practice, the declarations are sought where both parties do not dispute the facts relied on by the Plaintiff. I do not have the benefit of the Defendants evidence to convincingly hold that facts are not disputed. I will therefore thread carefully on the factual matters before the Court.
Jurisdictional basis of the substantive relief sought
12. Section 155(4) of the Constitution is the only source of law that the substantive reliefs sought are based on.
13. Counsel did not make submissions on Section 155(4) of the Constitution to clarify reliance on it. Section 155(4) Constitution is an inherent power of the Court but has been held to apply more appropriately where there is no existing remedy in law. See Ondalane v Ekepa [2023] PGSC 67; SC2413 (30 June 2023) at[39] and Sanu v Tuke [2020] PGNC 15; N8187 (24 January 2020)[39-42] .
14. Section 155(4) Constitution has been held to not provide a right but that it essentially provides two types of remedies as clarified in Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 (4 August 2006) at [16]:
" ... first in the nature of prerogative writs. The second power comes from the words "such other orders". This power is there to enable the Court to make "such other orders as are necessary to doing justice in the circumstances of a particular case" before the Court, provided the exercise of that power is only remedial in nature and is aimed at protecting and or enforcing the rights of parties granted by other law."
(Emphasis mine)
15. In Powi v Southern Highlands Provincial Government, the Supreme Court clarified at [25] that there are five important features of Section 155(4) Constitution to which the relevant features as they apply to this proceeding are respectfully adopted:
"1) The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as a necessary to
do justice in the particular circumstances of a case" before the Court;
2) Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
3)Where remedies are already provided for under other law, the provision does not apply;
...
5) A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law."
(Emphasis mine)
16. The Plaintiff must prove that its right and interest in law are being affected. It must point out the legal basis that its right and interest are based on for me to exercise discretion to grant the declarations sought.
Declarations Sought
17. Since this is the hearing of the substantive relief claimed in the originating summons, I will address each of the declaratory orders sought.
18. The Plaintiff produced into evidence a copy of a satellite image of the Porgera Special Mining Land Lease area highlighting an aspect of the map that they claim is the Angalaini Woyopene Wape Sub-Clan land. This map is not produced by any expert and appears to be a satellite image extracted from an unknown source most likely from Google maps.
19. The Plaintiffs have to produce evidence to confirm receipt of royalty payments. Henry Lara deposes to two types of payments made to landowners. These are the annual land occupation payment made by the project developer Barrick Niugini Ltd at its office on site and royalty payments paid by Barrick Niugini Ltd to Porgera Development Authority Trust Account managed by the Second Defendant's Porgera Co-ordination Unit which pays the royalty to the landowners. This process is corroborated by Jerry Maku the Porgera District Administrator. However, Henry Lara deposes that no receipts are issued to the landowners. How do the landowners confirm that their dues are paid? I find this difficult to accept. There should be sufficient paper trail for payments that the Plaintiffs lawyer should be able to easily obtain through the discovery process from the Defendants and the Project Developer to confirm the assertions about the royalty payments. The declaration cannot be made without any evidence to confirm what is being sought.
20. The applicants must demonstrate that there exists a process that was complied with and sanctioned by law or the Defendants which the Plaintiffs were dissatisfied with the outcome, hence are seeking redress from the Court. I address this and the fourth declaration sought in my analysis below.
Applying law to facts
21. Counsel has not referred this Court to any legal authority supporting the substantive declarations sought. The Plaintiff is requesting the Court to grant declaratory orders based purely on facts.
22. The evidence of the Second Plaintiff is that the process to endorse his appointment as by the sub-clan agent and is pending endorsement by the First and Second Defendant since August 2023.
23. The declarations sought by the Plaintiff regarding the customary land rights to the land on which the Porgera Special Mining Lease ( 'Porgera SML') is, and his appointment as the clan representative of the Angalaini Woyopene Wape sub-clan are matters which I think are within the purview of the Defendants to resolve before it comes to Court for any declarations.
24. In response to my query on the process of appointing a subclan agent, Mr Kumbu explained that sub-clan representatives are appointed by the clan members themselves with the District Lands Officer and the First Defendant merely endorsing the sub-clan decision. He stated that the vetting of the applicants appointment has been pending with the First and Second Defendant since August 2023. The Affidavit of Daniel Aremo, who is the local lands officer and Jerry Maku, the Porgera District Administrator, supports this explanation.
25. It is apparent that this process of recognising Koki Jeremiah Eka as a sub-clan agent of the Angalaini Woyopene Wape is not completed as the endorsement by the First and Second Defendants remain outstanding. I have had recourse to certain existing Supreme and National Court decisions concerning the 25 subclans of the Porgera SML area for further clarity on the background to process of validation, these are:-
26. In Ondalane v Ekepa, I take judicial notice of the matters listed at paragraph 16 which is a reference to a consent order made on 02 July 2021 setting out the process for a delegate of the Department of Lands and Physical Planning and the Registrar of Companies, to observe the process of election of sub-clan representatives:
" to ensure that legitimate landowners are appointed or elected by the clan members of the twenty five (25) sub-clans within the Special Mining Lease (“SML”) Area to become their sub-clan representatives or Land Negotiating Committee (“LNC”) Agents."
27. I note at [17] that, the the appeals in that case by Kimaleya Ondalane and Yanale Lare are on the refusal of joinder and not the substantive orders related to the supervision of the sub-clan agent elections.
28. The second case, I refer to is Akiko v Ekepa where the Supreme Court observed at paragraphs 7, 22, and 27 that 25 sub-clan agents had been appointed through elections or ballot through a validation exercise conducted an completed two years ago between 26 July 2021 and 06 August 2021.
29. Mr Kumbu nor any of the deponents did not mentioned this validation exercise nor clarified whether the Plaintiffs claims for recognition as the 26th sub-clan and sub-clan agent was considered in the validation exercise and the appointment of the 25 clan agents during the validation exercise conducted two years ago.
30. The validation exercise is an important fact that should have been mentioned in evidence. The evidence of the Plaintiff has a glaring gap in omitting the validation exercise mention in Akiko v Ekepa.
31. The Plaintiff’s case is that the Angalaini Woyopene Wape sub-clan is an existing sub-clan group that has been receiving royalty under the old porgera but wrongly represented by an elderly representative Ipaiya Lara who unknowing represented two clans, his own clan of Tiyani Kaimalo and the Angalaini Woyopene Wape sub-clan who now by virtue of this application require separate representation. The Affidavit of Ipaiya Lara deposes this.
32. Further, I refer to the list of the Porgera Landowners Association Inc of the former 24 sub-clans then as set out in paragraph 54 of Ekepa v Nalepe. This lists the Tieni Kumalo sub-clan name with Ipaiya Lara as the sub-clan agent, replaced by Paul Ipai. I note that subclan name may be spelt differently to what is written in this proceeding and that Henry Lara deposes that he is the current agent of the Tiyani Kaimalo.
These factual assumptions about the sub-clan and the agent names mentioned in Ekepa v Nalepe have not been clarified in the Affidavits to explain how Angalaini Woyopene Wape sub-clan is not listed.
33. The relevant material observations made by the Court in these three proceedings on the election process, the validation exercise and the listing of the subclans mentioned in the three cases have not been brought to the Court's attention. The Plaintiff should clarify where the Angalaini Woyopene Wape sub-clan was placed amongst the existing 25 subclans and why their interests were not captured.
34. I tried to understand where the Angalaini Woyopene Wape sub-clan was placed amongst the existing 25 sub-clans and requested after the hearing, for an additional affidavit to be filed. This was filed by Henry Lara, who deposes that he is the current Tiyano Kaimalo clans validated agent in the new Porgera Mining lease deal replacing the former agent Ipaiya Lara and that the Angalaini Woyopene Wape sub-clan would be placed after the Angalaini Woyopene clan in the list of sub-clans. He relies on a copy of a public notice issued by the Second Defendant sometime in 2021, calling for a meeting of the 25 agents for the agents to appoint the executives of the Porgera Landowners Association on 7 December 2021. The notice which listed the 25 sub-clans and agents, including Henry Lara for Tiyano Kaimalo sub-clan.
35. The Plaintiffs' evidence is that in the old Porgera mine , one Agent Ipaiya Lara, represented both Tiyano Kaimalo and Angalaini Woyopene. These should be confirmed with records of payments kept by the Defendants or Barrick Niugini Ltd, which were not obtained.
36. The role of the Porgera Landowners Association as it concerns the applicant and the sub-clan was also not appropriately explained. The Association is mentioned in the three cases, and the public notice relied on by Henry Lara.
37. I inquired with Mr Kumbu to refer me to any relevant law that guides the process of clan validation and the appointment or recognition of agents, but counsel was unable to refer me to any legislation. Section 155(4) Constitution provides a remedy to do justice, not grant new rights.
38. Land rights of customary landowners to compensation for the use of their traditional land to develop a natural resource are recognised and provided for under the Mining Act 1992. Part VII of the Mining Act provides for the project developer to reflect the compensation package in a compensation agreement. In practise this process is managed by the State with the appropriate customary landowner groups. It appears from Akiko v Ekepa that the process of sub-clan representation is one based on customary land groups supervised by the respective lands Officer and the registrar of companies. This process and the applicable law have not been satisfactory covered in the evidence nor the submissions to the Court.
39. I am not satisfied on the evidence and submissions that the declaratory orders sought are in order. I think this matter may be more appropriate for the Plaintiffs to seek orders in the nature of mandamus for the Third Defendants or any other authority whose approval is required to recognise the Applicants and the Angalaini Woyopene Wape sub-clan as the 26th sub-clan or to seek judicial review whichever mode is appropriate.
40. I conclude from the three caselaw cited that there was a validation process conducted to which the applicant's participation or lack of, is not properly in evidence before me to appreciate why the declaratory Orders are being sought.
41. Jeremiah Koki Eka makes a case about his appointment by the Angalaini Woyopene Wape sub-clan as its Land Negotiating Committee Agent and desires formal recognition by the First and Second Defendant. A proper course of action would be to seek a mandamus to compel his recognition or seek a judicial review if they decide not to accept his appointment.
42. Overall, I find that the plaintiff is essentially asking the Court to confer certain rights or interest on it by granting the
declaratory orders sought which in my view is outside the ambit of Section 155(4) Constitution. Section 155 (4) has been held by the then Chief Justice Kidu in SCR No 2 of 1981; Re S19(1)(f) of the Criminal Code (Ch262) [1982] PNGLR 150 as not conferring any substantive rights:
"The provision .... does not.... vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement."
43. For the declaratory Orders to be granted the proceeding must concern a right known in law which the Court must have jurisdiction to grant the order. I find the Plaintiff has not sufficiently proved the legal basis of its existing rights to demonstrate prejudice. It is obvious the Plaintiffs require better financial terms in the royalty and related benefits sharing arrangements but have not proven how their interests will be affected in monetary and decision-making terms.
44. For the foregoing reasons, the Plaintiffs have not sufficiently explained the controversy between the parties nor its legal right and basis of claim in law to justify a grant of the declaratory Orders sought. Section 155(4) Constitution, does not confer any rights but provides the Court with inherent power to do justice where existing legal rights are enforced or protected. As such, I am hesitant to grant the Orders sought.
ORDERS
45. The formal Orders of the Court are:
1) The Declarations sought by the Plaintiffs in this Proceeding are refused.
2) The Proceedings is dismissed in its entirety.
3) Each party bears its own costs.
4) The Court file is closed and archived.
Orders accordingly.
Jacob Sanga lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Fourth Defendant
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