Mara v Pok [2025] PGNC 427; N11564 (20 October 2025)

N11564

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO 198 OF 2019

BETWEEN
CHIEF WALABE MARA & ORS
Plaintiffs


HON FABIAN POK, MINISTER FOR PETROLEUM & ENERGY
First Defendant


AND
DEPARTMENT OF PETROLEUM & ENERGY
Second Defendant


AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


WAIGANI: PURDON-SULLY J
8 APRIL, 3, 20 OCTOBER 2025

JUDICIAL REVIEW – Review of Ministerial Determination – Determination of landowners entitled to royalty benefits – Identification of landowners – Social mapping study – Landowner identification study – Oil and Gas Act, 1998 – Sections 47, 167, 168, 169 & 170 – Preliminary challenge to the Plaintiffs standing – Plaintiffs found to lack standing – Grounds of review otherwise not made out - Application dismissed

Cases cited
21 ILGs of Gobe Project Area Incorporated Land Group v Imawe Bogasi ILG (2006) N3096
Application by Simon Ekanda [2024] SC2666
Asiki v Zurenuoc [2005] SC797
Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223
Bernard v Durban [2016] PGNC 121; N6299
Borasu v Pat [2002] N4738
Council of Civil Unions v Minister of Civil Service [1985] AC 374.
Ere v National Housing Corporation [2016] N6515
Haiveta, Leader of the Opposition v Wingti, Prime Minister and Attorney General and National Parlianent [1994] PNGLR 189
Hanjung Power Ltd v Marat [2009] N3751
Kamuta v Sode [2006] N3067
Kwayok v Singomat [2017] PGNC 377; N7097
Lau v Maniwa [2016] SC1481
Lole v Kapanombo & Ors [2025] N11405
Malewo v. Faulkner [2007] N3357
Marat v Hanjung Power Ltd [2014] SC1337
Mari v Marape [2022] SC2318
Morris v Panfilo [2017] PGNC 278
Musa Century Ltd v O’Neill [2013] N5334
NCD Water & Sewerage Ltd v Tasion [2002] SC696
Nining v Mann [2013] N5338
Ombudsman Commission v Yama [2004] SC747
Pelego v Pok & Ors [2021] PGNC 50; N8745
PNG National Stevedores Ltd v Baing and the State (2001) SCA465
Ponau v Teaching Service Commission Discplinary Committee [2006] N3059
Prendas v The State [1979] PNGLR 329
Simon Mali v State [2002] SC690
State v Ako [2022] PGSC 131; SC2323
Tigam Malewo v Keith Faulkner [2009] SC960
Tuwi v Goodman Fileder International Ltd [2016] SC1500
Yakam Maliaki & Ors v Judak Utin & Ors [2019] N8040

Counsel
Mr B Boma, for the plaintiffs
Mr R Uware, for the defendants

JUDGMENT

1. PURDON-SULLY J: The Plaintiff seeks judicial review, pursuant to a grant of leave on 2 September 2019, of the First Defendant’s decision to make ministerial determinations dated 9 March 2019 and his decision to gazette thereafter as G187, G188, G189, G190, G191, G192, G193, G194, G195, all of 2019 which affected the Plaintiffs and their tribe (the decision).
2. The decision related to how named beneficiary clans, entitled to receive royalty and equity benefits from PNGLNG Projects, granted by sections 167 and 168 of the Oil and Gas Act, 1998 (the Act), would share in the allocation.
3. The Plaintiffs challenge the decision on the following grounds namely ultra vires, breach of procedures prescribed by Statute, decision made arbitrarily, unreasonableness (Wednesbury), breach of natural justice, real or apprehended bias and failure to take into account relevant considerations and taking into account irrelevant considerations.
4. The Plaintiffs seek the relief detailed in the Amended Notice of Motion filed 8 July 2024, namely in the form of certiorari to quash or set aside the decisions, an order for mandamus compelling the Plaintiffs to comply with s 47 of the Act and undertaking a proper full scale social mapping and clan vetting exercise and a declaration that the decisions are null and void and of no effect as being contrary to s 47 of the Act.
5. With respect to Chief Walabe Mara, who had separate legal representation by Jeremai Lawyers, he did not participate in the trial, having failed to give instructions to his lawyers since January 2024 and his whereabouts unknown (affidavit of Mr Bona filed 8 April 2025). I am satisfied that reasonable attempts have been made to give him notice of the trial. For reasons known to him, he has not sought to re-engage in person or by instruction to other lawyers.

CONTEXTUAL BACKGROUND

6. This dispute is part of ongoing litigation in this Court with respect to compensation, litigation that has now spanned decades involving the two major tribes in the PNG LNG project area: the Hiwa Tribe and Tuguba Tribe.
7. The Hiwa tribe consists of nine (9) sub-clans and the Tuguba tribe consists of eight (8) sub-clans.
8. The Plaintiffs are members of the Tuguba tribe of the PDL 1 and PDL 7 regions of the Hides PNG-LNG projects in the Komo Hulia District of Hela Province (PDL 1 and PDL 7 regions).
9. The Plaintiffs together with the Hiwa tribe are owners of the land within the PDL1 region to the exclusion of all others. The Plaintiffs are the owners of PDL 7 region to the exclusion of all others.
10. The landowners from the two tribes received royalty prior to the PNG LNG project from the gas to electricity project from Porgera Gold mine. They were identified as brownfield landowners based on a decision by the Special Lands Titles Commissioner Sir Arnold Amet in July 1991, a decision which the Tuguba challenged in the courts and on the evidence in these proceedings, a decision in respect of which they strongly disagree.
11. After what was described at [5] of the agreement as “a long and tedious effort” the Hiwa and Tuguba tribes reached agreement with the Hiwa Tuguba Dispute Compromise Agreement (the compromise sgreement) on 7 July 1993 (RB 514).
12. The compromise agreement inter alia outlined a royalty distribution benefit spilt percentage of 50-50 share of customary lands on which the Hides Gas Project, water source and access road was situated at Karius PDL1 and 2. The agreement was signed by representatives of the relevant clans (RB 518).
13. The background to this matter is outlined by the Plaintiffs in their Amended Statement in Support filed 8 July 2024, the Plaintiffs’ affidavits detailed at [5] of their written submissions in support of their application and the Defendant’s affidavits detailed at [3.2] of their written submissions.
14. While there is no Statement of Agreed and Disputed Facts as part of the Review Book the facts that appear to be uncontroversial on the material relied upon, supplemented by the background outlined in Pelego v Pok & Ors [2021] PGNC 50; N8745 (Pelego) in particular at [1] – [4], a case which raised similar issues, provide context to this dispute
15. As the learned Judge in Pelego outlined, the discovery of crude oil and liquefied natural gas (LNG) in Papua New Guinea led to the need to carefully identify people who own land where discoveries have been made including those providing access to them. These people are entitled to compensation for the occupation and use of their land. The need to identify these people was one of the reasons for Parliament to pass the Act which replaced the Petroleum Act Ch 198.
16. The PNG LNG Project is a large, complex project of national significance involving nine (9) Petroleum Development Licensees, a number of oil fields and over 700 kms of pipeline connecting facilities.
17. It has involved the National Government, Provincial Governments and landowners progressing through a series of development phases.
18. The project directly impacts Hela, Western, Southern Highlands, Gulf and Southern Provinces involving 14 ILGs in the project footprint and over 60,000 landowners.
19. In the context of PNG LNG project, two of the important key features of the new Act are the requirements to undertake a social mapping study and landowner identification study.
20. These requirements are essential to the identification of landowners who will receive benefits from the extraction of gas including use of their land by resource developers.
21. The issue of social mapping and landowner identification (SMLI) and whether it has been carried out properly has been “a hotly contested issue in the National Court” (RB 722).
22. Following the passing of the Act there was debate in relation to whether the requirements under s 47 of the Act for social mapping and landowner identification studies were a condition precedent to a grant by the Minister of petroleum licences for exploration, retention, or development under s 169 of the Act.
23. The question was considered by Makail J in Pelego. Following a review and consideration of the relevant provisions of the Act, the learned Judge determined that a social mapping study and landowner identification study under Section 47 was not a pre-condition for Ministerial determination and as such a Ministerial determination made without the benefit of it was not a ground to set aside a Ministerial determination or form a basis to find that the Minister acted ultra vires his power or made an error of law under s 169. The Plaintiffs in the present case take issue with that view.
24. Following the signing of an Umbrella Benefit Sharing Agreement (UBSA) in May 2009 and License Based Benefit Sharing Agreements (LBBSA) in December 2009 work was undertaken to verify and vet the impacted Clans (CVP) along the project footprint and generate a benefit mechanism scheme to distribute royalties from the first gas flow in 2012.
25. The background to the CVP process, which involved beneficiary identification and physical vetting of the major clans within the licence areas in consultation with landowners, followed by finalisation of landowner benefits agreements or share within each licence area, is outlined in the affidavit of Lohail Nuau filed 4 October 2019.
26. The CVP is now referred to as the Landowner Beneficiary Identification (LOBID). It is a mandatory process as required under the Act for the purpose of distributing royalty and equity benefits under the Act. The process is managed and implemented by the State through the Department of Petroleum and Energy (DPE), the regulator of the oil and gas industry in PNG.
27. In compliance with various NEC decisions in 2012 the DPE met with ExxonMobil to discuss a Benefits Distribution Action Plan to work out a cost-efficient distribution mechanism for the project area landowners in anticipation of a LNG shipment by March 2014.
28. The LOBID was utilised and in April 2013 the DPE commenced the LOBID phase 1 for the entire footprint. That was completed in November 2012 and the finalised list of clans for PDL 1 and PDL 7 was gazetted on 19 May 2014.
29. In 2015, phase 2 of the LOBID exercise commenced. The objective was to review all available data in consultation with the landowners to verify and substantiate and agree on final lists of beneficiary clans and to agree on a sharing of percentages to be submitted to the Minister for determinations with respect to PDL 1 and 7 to be made in compliance with ss 169 and 170 of the Act.
30. With respect to the current dispute, between 21 January and 9 March 2019 a team of government officials from the DPE travelled to Juni campsite and conducted the LOBID landowner identification exercise. The percentage sharing consent forms were signed by representatives of each clan, chosen by the clan members, because it was impractical to accommodate all the members of the clan at the camp site. There were five (5) representatives from each clan.
31. On about 19 March 2019 representatives of the Tuguba signed the consent form on behalf of their clan.
32. Under the UBSA the benefit percentage spilt was Hiwa 37%, Tuguba 25%, Tugu Tapira 10.4%, JP Karai 11.8 %, Habono 12.8% and Kamia Kera 3%.
33. Therein lies the dispute. It is the Plaintiffs position, in short, that the sharing is unequal and unfair and regard should have been had to the compromise agreement which split the benefits equally. Further and in summary:
    1. The First Defendant made the decision without having considered a properly and legally prepared social mapping and landowner benefit sharing identification report.
    2. The LOBID report was not carried out by the licensee developer, in this case, ExxonMobil (PNG) Ltd.
    100. The LOBID study was not carried out by experts engaged by the licensee contrary to s 47(3) of the Act.
    4. The social mapping and LOBID exercise was not carried out pursuant to a direction from the licensee/developer pursuant to s 63 of the Act.
    5. The First Defendant did not allow the Plaintiffs, the Komo Local Level Government and District Administrator to make and send him submissions on landownership within the PDL 1 and 7 regions contrary to s 169(6) of the Act.
    6. That prior to the Second Defendant employees conducting the social mapping and LOBID study, the case of Albert Mokai & Ors v Anderson Agiru & Ors (Mokai case) restrained the developer/licensee from carrying out any social mapping and LOBID exercise.
    7. The First Defendant failed to give reasons as to how he arrived at the decision. For example, some of the clans received an equal share when they owned more of the land and some were more affected by the LNG project than other clans.
34. It is submitted on behalf of the Defendants that whilst the Plaintiffs allege a number of grounds of review, the main issue is whether the First Defendant acted outside of his power and breached the procedures set out in the Act, the pertinent question to address being whether the LOBID process amongst others was carried out before the decision was made.
35. It is submitted that on the evidence the Plaintiffs have not made out a case for the Court to grant the relief sought in the exercise of its discretion because:
    1. The LOBID exercise phase 1 and 2 was conducted by the Second Defendant with participating landowners in agreement, consistent with the compromise agreement, the Sir Arnold Amet decision and SMLI.
    2. Invitations were given to all interested clans to participate in the exercise and the percentages reflect the landowners’ agreement, which included the Tuguba, as reflected in the signed Clan Consent Forms and thereafter captured in the Ministerial determination the Plaintiffs now seek to review.
    100. The issues before the Court such as LOBID, SMLI and the validity of the Ministerial determination of Hides PDL 1 and 7 project areas dated 19 March 2019 were dealt with in Pelego and affirmed by the Supreme Court in State v Ako [2022] PGSC 131; SC2323 (Ako), the issues pertaining to the integrity and legality of LOBID, SMLIS and Ministerial Determination of PDL 1 and 7 now settled.
         

PRELIMINARY ISSUE

36. The Plaintiffs are chiefs of their respective clans of the Tuguba Tribe Hides PDL 1 and PDL 7. At the hearing of the substantive matter on 8 April 2025 they were represented by their Attorneys Richard Takima and Erick Hawai Ako as designated Chairman of the Tuguba Nguane Tribe and Tugubu Yugu Tribe respectively.
37. The Defendants raised a preliminary issue, namely that the Plaintiffs lacked standing to bring a class action on behalf of the various clans they represented by reason of a lack of evidence as to their authority or the consent of the members of the clan in written form attached to the original proceedings.
38. The focus of submissions was on the authority in favour of the lead Plaintiffs, the Court accepting that that authority, in its terms, to be deficient.
39. Following submissions, Counsel for the Defendants consented to Plaintiffs’ application to amend their pleadings such that the action would proceed in the names of each of the Plaintiff Chiefs as opposed to the Chiefs through their attorneys as named.
40. Following my reservation of this matter, and on further consideration of the material, on 3 October 2025 I took further oral submissions on notice on the issue of standing. The parties thereafter forwarded further written submissions, Mr Boma for the Plaintiffs in the form of an email dated 7 October 2025 enclosing the decision of Wapi v Kwa [2022] N10362 and Mr Uware for the State in the form of short written submissions received on 8 October 2025 wherein the Court was referred to various authorities on the issue of standing.
41. The State maintains its position that the proceedings are not properly before the Court because if the Plaintiff Chiefs are acting on behalf of their clans, there is no authority in evidence that they represent the members of their respective clans. Reliance is placed on Simon Mali v State [2002] SC690 (Mali); Tigam Malewo v Keith Faulkner [2009] SC960; Yakam Maliaki & Ors v Judak Utin & Ors [2019] N8040 and Violo v Logha [2022] (although the full citation was not provided and the Court has been unable to locate the case).
42. The State further submits that if the Plaintiffs are suing in their own capacities as a landowner, they cannot do so, as the customary land in question is communally owned. An individual owner does not have the right to represent himself in matters pertaining to customary land. The appropriate entity is the incorporated land group (ILG) pursuant to s 11 of the Land Groups Incorporation Act, the legally accepted avenue in which landowners can bring suit. Sections 169(2)(B) and 176 of the Act recognises ILG’s as the permitted entity to receive benefits. In this case there is an ILG within the boundary of the customary land that the clan claims to own. Reliance by the State is placed on Morris v Panfilo [2017] PGNC 278 and Lole v Kapanombo & Ors [2025] N11405.
43. It is the Plaintiffs case that they have standing and that the Court has on many occasions expanded the categories or situations in which a person can have standing simply by reference to sufficient interest in the matter that may not necessarily be a right (Wapi v Kwa (supra) and Mari v Marape [2022] SC2318).
44. Turning now to the facts of this case, in their Amended Statement the Plaintiffs plead that they are the paramount chiefs of the clans of the Tuguba Tribe of PDL 1 and PD 7 regions who “together with the Hiwa Tribe are owners of the land within the PDL 1 region to the exclusion of all others”. In support of the application before the Court various affidavits have been filed by a number of clan members.
45. It is clear, on a fair consideration of all of the evidence, that the Plaintiffs purport to act in a representative capacity on behalf of their individual clans, originally as represented by their attorneys Richard Takima and Eric Hawai Ako, and then, on the grant of leave to amend when the authority to that end was found to be deficient, in their capacity as representatives of their clans.
46. To bring suit the Plaintiffs must evidence a sufficient interest (Order 16 r 3(5) of the NRC) in the subject matter of the decision and the right to challenge it.
47. It is settled law that as long as a natural person has legal capacity he or she may represent a group of people to issue proceedings on their behalf insofar as their interests are common and there is evidence before the Court that they have the authority to do so (Lau v Maniwa [2016] SC1481; Mali (supra), Malewo v. Faulkner [2007] N3357, 21 ILGs of Gobe Project Area Incorporated Land Group v Imawe Bogasi ILG (2006) N3096 ; Borasu v Pat [2002] N4738; Ere v National Housing Corporation [2016] N6515; Tuwi v Goodman Fileder International Ltd [2016] SC1500; Kwayok v Singomat [2017] PGNC 377; N7097).
48. There is good reason for the authority of that person or persons to act to be obtained and put into evidence. It is to do with the costs of the litigation, if awarded against the Plaintiffs (Mali).
49. There is, however, no evidence that the members of the clans the Plaintiff Chiefs purport to represent, have authorised them to bring suit. In Berasi v Konekaru Holdings Ltd [2010] N4189, Davani J said at [26] that in a class action brought by a clan, all clan members must authorise the plaintiff to bring legal suit. This principle is well settled in this jurisdiction.
50. As the evidence of such consent and authorisation is crucial in judicial review because it goes to the issue of standing and sufficient interest as required by Order 16 r 3(5) of the NRC, the absence of consent is fatal to the Plaintiffs’ claim.
51. The fact that leave was granted to the Plaintiffs to review, where standing is a requirement, does not alter the Court’s conclusion. It is not unusual that an unmeritorious application is not filtered out at the leave stage, an ordinary and natural incident given the nature of the leave hearing (Angui v Wagun [2011] N4194 at [25]).
52. The issue of leave is still alive after the grant of leave, one that subsists to the final determination of the matter (Gabi v Nate [2006] N4020; Angui v Wagun [2011] N4194; Koim v O’Neil [2016] N6558; Kwayok v Singomat [2017] N7097).
53. While an issue that has been raised late, it is a threshold issue that must be resolved because it goes to the Court’s jurisdiction to hear the matter.
54. For the reasons given the Plaintiffs’ application for judicial review cannot proceed for want of standing and the proceedings should be dismissed.
55. If, however, the Plaintiffs were acting as individual landowners, and not on behalf of their clans, for the reasons submitted by the State they would also fail for want of standing.
56. Having concluded that the application fails for want of standing, it is not necessary to consider the matter further.
57. However, having had the benefit of fulsome submissions on the review, I propose to consider the grounds of review raised. As will become clear, I have also determined that the application fails on the merits of the matter, by reason of none of the grounds of review being made out.
58. My reasons to that end follow.

PRINCIPLES GOVERNING JUDICIAL REVIEW

59. It is now settled law that judicial review proceedings are exclusively governed by Order 16 of NCR. It is also settled law that judicial review is discretionary and available to correct errors in decision making (Mayur Renewables Limited v Mirisim & Ors [2024] N10649; Church of Jesus Christ of Latter-Day Saints Inc v Kimas [2022] SC 2280; Kekedo v Burns Philp (PNG)Ltd [1988-89] PNGLR 122).
60. The underlying principles are whether the decision- maker has acted in excess of jurisdiction, committed an error of law on the face of the record, failed to comply with the principles of natural justice or acted unreasonably (Wednesday) (Dusava v Justice Doherty [1999] PNGLR 419 per Sakora J cited with approval in Mayur Renewables Limited v Mirisim & Ors [2024] N10649 per Kandakasi DCJ at [43]).

CONSIDERATION OF THE ISSUES

61. Before I turn to the grounds of review I wish to make some general observations on the evidence.
62. It is trite to say that the Court can only make decisions on relevant and admissible evidence. A difficulty with much of the Plaintiffs’ evidence is that it is frequently based on hearsay, generality, speculation, assumption and assertion without persuasive evidentiary support. By way of one example, Mr Andrew Arawi Tombaiya, the son of Chief Arawi Tombaiya, a Plaintiff, purports to give evidence with respect to a meeting of which he lays complaint that took place at the Nogoli Community Centre on a date not specified (albeit at the time of the LOBID exercise), notwithstanding that on his own evidence he was not present at the meeting (RB 543).
63. By way of further example, among many, Mr Takima gives evidence that he was “informed by villagers of my clan” with respect to officers of DPE speaking to people in his village with respect to opening a bank account for the payment of royalties. That is hearsay evidence (RB 424; see also affidavit of Mr Angoya at [4], affidavit of Mr Kili at [2] – [3]; affidavit of Mr Joseph Ipule second sentence at [5]).
64. Further, given the voluminous material to be considered it is helpful that copies of documents in evidence are good copies that are legible, complete and copied straight.
65. Finally, given the long history of litigation spanning decades and the various references to this and/or annexing of court documents, the Court would have been assisted by an agreed Chronology and a Statement of Agreed and Disputed Facts and Legal Issues.
66. I now turn to consider the grounds of review.

Ultra Vires

67. I outlined the particulars of this ground earlier but will repeat for convenience.

68. It is submitted on behalf of the Plaintiffs that the First Defendant acted ultra vires his powers under s 169(4) of the Act inter alia because:

1. The First Defendant made the decision without having considered properly and legally a social mapping and LOBID report and thus without the benefit of a social mapping report and landowner benefit sharing identification exercise or study on PDL 1 and 7 regions of the Hides Gas Project contrary to ss 47 and 169(2) and (4) of the Act.
2. The LOBID study was not carried out by licensee developer ExxonMobil (PNG) Ltd.

100. The LOBID study was not carried out by experts engaged by the licensee contrary to s 47(3) of the Act, it being the responsibility of the licensee to conduct social mapping and LOBID studies on the project to identify who should benefit.

4. The social mapping and LOBID exercise was not carried out pursuant to a direction from the licensee/developer pursuant to s 63 of the Act.
5. The First Defendant never allowed the Plaintiffs, the Komo Local Level Government and District Administrator to make and send him submissions on landownership within the PDL 1 and 7 regions contrary to s 16((6) of the Act;
6. That prior to the DOP employees conducting the social mapping and LOBID study, the case of Mokai restrained the developer licensee from carrying out any social mapping and LOBID exercise.

69. The Plaintiffs further submit that the First Defendant breached procedures prescribed under law designed to ensure procedural fairness in decision-making as follows:

1. Breach of s 47 of the Act by reason that no social mapping and LOBID exercises were conducted prior to the making of the Ministerial Determination.
2. Social mapping is to be undertaken before the requirements of landowner beneficiary identification studies under s 169 and 169A of the Act are to be met, the First Defendant breaching s 47 of the Act as no mapping had been conducted before the land owner identification study had been carried out.

100. Pending the dispute of the Plaintiffs in OS 123 of 2019 the First Defendant was in breach of s 169(7) of the Act as he should have dealt with the proceeding OS 123 of 2019 before making a Ministerial Determination.

70. The Plaintiffs further submit at [45] – [55] of written submissions that the First Defendant took into account several irrelevant considerations in making his decision as follows:

1. He considered the social mapping and LOBID exercise report complied by the DPE officers in breach of a Court order in Mokai which restrained the licensee and others from conducting a social mapping and LOBID exercise. It was thus an illegal report and an irrelevant item to be considered.
2. There was no proper social mapping and LOBID study caried out by the other officers of the DPE and hence there was no lawful and relevant report available for him to consider as required by s 63 of the Act, the First Defendant having considered an irrelevant factor.

71. The Plaintiffs further submit that the First Defendant failed to take into account a number of relevant considerations in making his decision as follows:

1. The First Defendant should have considered that the licensee had not conducted a social mapping and LOBID study and produced a report for the First Defendant to consider prior to his decision and that the social mapping report that the DPE submitted was an irrelevant consideration.
2. The First Defendant should have taken into account that the social mapping and LOBID report was illegal and void.

100. The First Defendant should have taken into account the fact that he had not requested the licensee to carry out any social mapping under s 63 of the Act and should have inquired how the report came about, delayed his determination and properly requested the licensee to conduct a fresh social mapping and LOBID exercise.

72. It is convenient to consider these grounds together as a discussion of one will touch on the other. A decision-maker would act ultra vires his authority, his purported power affected, if he took into account an irrelevant consideration or failed to take into account all relevant considerations (Baliasi v Lua [2013] N5145). Similarly, a breach of statutory procedure would result in a decision-maker acting ultra vires his powers.

73. As noted earlier it is submitted on behalf of the Defendants that the issues before the Court such as LOBID, social mapping and the validity of the Ministerial determination of Hides PDL 1 and 7 project areas dated 9 March 2019 were dealt with in Pelego and are now settled.

Consideration of this ground of review

74. The main issue for consideration is whether a social mapping study and landowner identification study under Section 47 is a pre-condition for the Ministerial determination. Put another way, is a Ministerial determination made without the benefit of a social mapping study and landowner identification study a ground to set aside a Ministerial determination or form a basis to find that the Minister acted ultra vires his power or made an error of law under s 169 of the Act.

75. The starting point is a consideration of the relevant provisions of the Act and Pelego.

76. Sections 47 and 169 read:

47. Social mapping and landowner identification studies.

(1) It shall be a condition of every petroleum prospecting licence that the licensee undertake social mapping studies and landowner identification studies in accordance with this section.

(2) It shall be a condition of every petroleum retention licence that the licensee undertake social mapping studies and landowner identification studies in accordance with this section, to the extent that such studies have not been undertaken pursuant to a petroleum prospecting licence out of which the petroleum retention licence was granted.

(3) It shall be a condition of every petroleum development licence that the licensee undertake social mapping studies and landowner identification studies in accordance with this section, to the extent that such studies have not been undertaken pursuant to a petroleum prospecting licence or petroleum retention licence out of which the petroleum development licence was granted.

(4) Prior to first entry on to the licence area for the purposes of exploration pursuant to a petroleum prospecting licence or a petroleum retention licence, the licensee shall undertake—

(a) a preliminary social mapping study; and

(b) a preliminary landowner identification study,

of the customary land owners comprised in the licence area, with particular reference to that part of the licence area where the licensee's exploration activities are to be concentrated.

(5) If a licensee or a person makes an application for a petroleum development licence under Section 53, the licensee shall submit with that application a full-scale social mapping study and landowner identification study of customary land owners in—

(a) the licence area of that petroleum development licence; and

(b) other licence areas, including pipeline areas, which pertain to that petroleum development licence; and

(c) the land within five kilometres of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development licence) of the petroleum project; and

(d) other areas which would be affected by the petroleum project if developed."; and

(5A) If a licensee makes an application for a variation of a licence under Section 58(1), to include an additional block or blocks in a petroleum development licence, the licensee shall submit with that application a full-scale social mapping study and landowner identification study of customary land owners in—

(a) the additional block or blocks that will form part of that petroleum development licence; and

(b) other licence areas, including pipeline easements, which are associated with the petroleum development licence upon variation of such licence; and

(c) the land within five kilometres of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development licence) of the petroleum project; and

(d) other areas which would be affected by the development of the additional block or blocks.

(6) The Minister may by regulation prescribe the scope and method of a social mapping study or landowner identification study conducted in accordance with this section, and requirements as to reports of such studies.

(7) Copies of any social mapping or landowner identification studies undertaken in accordance with this section (excluding any information which is confidential to the licensee or to the local groups of landowners) shall be provided to the Director.

169. Identification of landowner beneficiaries.

(1) Notwithstanding any other provision of this Act, the persons (other than affected Local-level Governments or affected Provincial Governments) who shall receive the benefits granted by Sections 167 and 168 shall be identified in accordance with this section.

(2) Prior to convening or during a development forum under Section 48, the Minister shall determine, by instrument—

(a) the persons (other than affected Local-level Governments or affected Provincial Governments) who shall receive the benefits granted by Sections 167 and 168; and

(b) the incorporated land groups or, if permitted in accordance with Section 176(3)(f), any other persons or entities who shall represent and receive the benefit on behalf of the grantees of the benefit.

(3) An instrument under Subsection (2) shall only be valid if also signed by the Director and the Secretary of the Department of Treasury or other National Government Department responsible for financial matters.

(4) In making a determination under Subsection (2), the Minister shall consider any agreements by persons who are or claim to be project area landowners, the decisions of courts of Papua New Guinea as to ownership of land or rights in relation to land in the vicinity of the petroleum project in question, the results of social mapping and landowner identification studies carried out in accordance with this Act, and submissions from affected Local-level Governments or affected Provincial Governments of the petroleum project in question or from any other person claiming an interest or to be affected by the decision of the Minister.

(5) A petroleum development licensee or applicant for a petroleum development licence may, at any time after an application for the grant or variation of a petroleum development licence in respect of a petroleum project, apply to the Minister for a determination under Subsection (2).

(6) Where a licensee or an applicant for a licence applies to the Minister for a determination under Subsection (5), the Minister shall allow a period of 30 days, or such longer period as the Minister may allow, for persons referred to in Subsection (4) to make submissions or in the case of persons claiming to be project area landowners to advise him of agreements reached by them on the determination.

(7) Where a dispute exists as to which persons or incorporated land groups or other entities should be identified to receive benefits in accordance with this section, the Minister may make a determination under Subsection (2) or may direct that monies or other benefits which are the subject of the dispute shall be held in abeyance pending a resolution of that dispute by other means, and where such a direction is given by the Minister the trustee referred to in Section 176 shall hold such monies or other benefits in accordance with that direction.

(8) Where the Minister directs that monies or other benefits are to be held in abeyance under Subsection (7) or where the Minister's determination under Subsection (2) is subject to judicial review, the Minister may grant the licence or licences in respect of the petroleum project.

(9) Where the Minister has granted the licence or licences under Subsection (8) and the dispute is resolved the Minister shall make a determination under Subsection (2) and convene a development forum under Section 48.

(10) A Ministerial determination made pursuant to the section shall not be reviewable before any court unless an application for review is made within 28 days of the Ministerial determination”.

(Emphasis added).

170. Sharing of benefits amongst project area landowners.

(1) Any equity benefit or royalty benefit granted to project area landowners shall be shared amongst project area landowners in accordance with this section.

(2) Equity benefits and royalty benefits granted to project area landowners under this Act shall be shared among project area landowners or groups of project area landowners in proportions to be agreed by them in a development agreement, but in default of such agreement in the proportions determined by the Minister, by instrument.

(3) Where, in the opinion of the Minister, having considered the results of social mapping and landowner identification studies conducted in accordance with Section 47, some project area landowners have a greater or more substantial occupation or right of occupation of the land referred to in the definition of "project area landowners" or are more adversely impacted by the petroleum project that other project area landowners, the Minister may, by instrument, determine that the sharing amongst project area landowners of equity benefits or royalty benefits in accordance with this section shall favour, on a per capita basis, those project area landowners who have that greater or more substantial occupation or right of occupation or are more adversely impacted by the petroleum project.

(4) A trust deed implemented in accordance with Section 176(3) shall provide for the distribution of equity benefits and royalty benefits in accordance with this section.

77. Before I turn to the submissions on behalf of the Plaintiffs, I set out in full the Court’s reasoning in Pelego, a case on point, involving the two major tribes in the PNG LNG project area, namely the Hiwa and Tuguba Tribes, entitled to receive royalties and benefits.

78. The case concerned five (5) proceedings that involved judicial review of a determination by the First Defendant in these proceedings, in which he made a Ministerial determination under s 168 and 169 of the Act.

79. An issue before the Court was whether the Minister was authorised or empowered to make the determination he did, the plaintiffs in that case submitting that in the absence of social mapping and landowner identification studies under s 47 of the Act the Ministerial Determination was unlawful and ultra vires the Minister’s powers under s 169.

80. It was necessary for the Court to consider whether the requirements of s 47 of the Act with respect to the social mapping studies and landowner identification studies were a condition precedent to a grant of petroleum licence for exploration, retention, or development or not and the application of s 47 of the Act in the context of benefit sharing amongst customary landowners under s 169 of the Act.

81. In that regard the Court concluded at [50] – [63] as follows:

50. The use of the word “shall” in s 169(4) connotes that it is mandatory and the Minister is duty bound to have regard to the information set out in these documents to arrive at a determination. Secondly, the use of the word “and” and “or” as conjunctions or joining words can be construed as while it is mandatory for the Minister to have regard to this information, it is not necessary that he must consider all of them.

51. There may be cases where there is no agreement between the landowners (written agreement) but the Minister has at his disposal the rest of the documents from Court decisions to submissions of the Local-level Government or Provincial Government and any other persons claiming an interest or to be affected by the decision of the Minister. In this type of case, it does not mean that the Minister is barred from making a determination and if he does make a determination, the missing or lack of agreement between landowners does not render the determination void per se.

52. In other cases if there is no social mapping study and landowner identification study, it does not prevent the Minister from making a determination. What is important is that, if the information presented to him in a landowner agreement, Court decisions etc, sufficiently identify the landowners, it is open to him to make a determination for the purpose of benefit sharing or appointment depending on the ownership, occupation or extent of the impact of the project on the land.

53. Given the way Section 169(4) is expressed, I am respectfully of the opinion that while the Minister is bound to consider the information supplied to him in these documents, in a case where one or more but not all are missing or not necessary, it is open to him to make a determination based on the available information.

54. Putting it into context of this case, it does not necessarily follow as a consequence of the absence of social mapping studies and landowner identification studies that the Minister is barred from making a determination. Moreover, it does not make the determination void. Section 169 is also not expressed to be subject to Section 47.

55. To construe Section 169 as being subject to Section 47 is, in my respectful opinion, a misconstruction of this provision. It would be seen as extending the application of Section 169 beyond its intended purpose or what the Parliament had intended in the first place. Conversely, such a statutory construction will led to restricting the discretion Parliament had conferred on the Minister when he is giving consideration to the issue of benefit sharing or apportionment amongst the customary landowners. Section 47 should be read as a stand-alone provision. When read on its own, the true purpose of its inclusion in the Act will be better understood and given its desired effect.

56. Section 47 imposes a mandatory obligation on a licensee (licence holder or developer) to undertake social mapping study and landowner identification study for the purpose of obtaining a petroleum licence. Sub-section (4) makes it quite clear that prior to first entry on to the licence area for exploration pursuant to a prospecting licence or a petroleum licence, the licensee must undertake first a preliminary social mapping study and secondly, a preliminary landowner identification study of the customary landowners of the licence area. The reference to a preliminary study for both the social mapping and landowner identification implies that they are temporary measures with final ones to follow suit on a later date. The reason is obvious. They are used by the licensee to apply for licence for exploration purposes and in a case where the exploration results in nil discoveries, it will not be necessary to rely on them again.

57. Section 47(5) envisages this scenario by making provision for a case where if an exploration proves successful and oil or gas is discovered and can be extracted for commercial production, the prospecting licence holder will need to apply for a development licence in order to extract the petroleum product. It must submit along with its application for a development licence, a full scale-scale social mapping study and landowner identification study. These studies are not only a full-scale ones but are quite broad because not only do they cover and include customary landowners of the licence area of the petroleum development licence but other licence areas including pipeline areas where the pipeline will and is to run through to the outlet, land within five kilometres of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development licence) of the petroleum project and finally, other areas which would be affected by the petroleum project if developed.

58. For example, the pipeline landowners are those whose land the pipeline runs through to the outlet. They must be included in the determination based on the social mapping and landowner identification studies. Another example is the landowners within five kilometres of any facility considered to be a declared project facility like those at the pipeline outlet where the Kumul Terminal is located outside the city of Port Moresby. A further example is the landowners of the customary land where road access to the plant facility is located. They too must be identified and included in the full-scale social mapping and landowner identification studies.

59. This is not all. The licensee may apply for variation of its petroleum licence to include additional block or blocks in a petroleum development licence. By Section 47(5), it must also submit with the application, a full-scale social mapping study and landowner identification study of customary landowners of the additional block or blocks that will form part of that petroleum development licence and other licence areas, including pipeline easements, etc...

60. It is to be emphasised that a licensee who has made a discovery of oil or gas, as the case may be, and seeks to extract it must submit a full-scale social mapping study and landowner identification study with the application for petroleum development licence or variation of its petroleum licence for additional block or blocks, as the case may be. The duty is on the licensee to provide full-scale studies of social mapping and landowner identification but it will require the corporation and participation of all stakeholders including the State and customary landowners to complete these full-scale studies. Once they are done, the licensee will then submit them with the new application to get the approval to develop the resources.

61. Look at it the other way, a failure to comply with the requirements of a social mapping study and landowner identification study under Section 47 may constitute a ground to review a grant of petroleum licence to an applicant/licensee by an aggrieved party. The aggrieved party may be a rival applicant or persons who claim to be customary landowners of the subject petroleum prospecting or petroleum development area and have missed out. These two requirements must be satisfied before the licensee is given approval to develop the resource project. But it does not constitute a ground to set aside a Ministerial Determination made under Section 169.

62. For these reasons, it is my respectful opinion that a social mapping study and landowner identification study under Section 47 are not pre-conditions for the Ministerial determination. It follows that a Ministerial determination made without the benefit of a social mapping study and landowner identification study is not a ground to set aside a Ministerial Determination or forms a basis to find that the Minister acted ultra vires his power or made an error of law under Section 169. This ground is dismissed.

63. It follows that it was open to the Minister to rely on the available information including the Land Titles Commission decision by Sir Arnold Amet and the Hiwa-Tuguba Compromised Agreement which has not be varied or set aside and remains in force to date to make a determination.

[Emphasis added]

82. It is submitted on behalf of the Plaintiffs here that they hold to a different view to that expressed by the learned Judge, in that under s 169(4) of the Act the Minister must consider agreements between landowners’ decision of court of PNG the results of social mapping and LOBID studies of the developer. At [21] of written submissions it is contended, in making his determination, the Minister may consider either one, two or all submission(s) from any of the following:

1. Project are (sic) Local level - Government; or
2. Persons affected by the projects; or

100. Other persons affected by the projects.

83. It is submitted that because of the word “submission” in s 169(4) of the Act, that Parliament inserted the conjunctive “or” to show that submissions from one, two or all three of those persons can be considered by the Minister to make his determination under s 169. He does not have to consider all of them together. However, all of the other items provided under s 169(4) are required to be considered by the Minister. They are items joined by a comma to show that they must be considered together. The conjunctive “and” used in s 169(4) of the Act clearly indicates that the Minister shall consider all other items in s 169(4) together with submissions from any one two or three of LLG or Provincial Government of affected persons from the project sites.

84. It is submitted that given the fact that the First Defendant did not consider a social mapping and LOIB report (as it was not submitted by the licensee) and any agreement from the landowners of PDL 1 and PDL 7 regions to make his decision, the First Defendant thus acted ultra vires or beyond its powers under s 169(4) of the Act.

85. I do not accept the Plaintiff’s submissions.

86. Firstly, I am not persuaded that the learned trial Judge’s interpretation of the relevant sections in Pelego was wrong and should not be applied to the facts before me.

87. In a carefully reasoned decision, the learned Judge considered the relevant statutory provisions, the power of the Minister to make a determination and the various National Court authorities cited by the plaintiffs in support of their case.

88. Based on the learned Judge’s reasoning and conclusion, with which I respectfully agree, no persuasive argument was advanced as to why I should not follow that authority.

89. Pursuant to s 169(4), in order to arrive at a decision the Minister is assisted by the information outlined. However, there is nothing in the list that requires the Minister to consider the specific information contended by the Plaintiffs and it does not mean he is barred from making a determination and that the missing or lack of agreement between landowners renders the determination void per se (Pelego at [44] – [47]).

90. Further, given the way s 169(4) is expressed, as interpreted by persuasive authority in Pelego, while the Minister is bound to consider the information supplied to him and as identified in the National Gazettes in evidence (Annexures A to A9 to affidavit of Richard Takima filed 5 April 2019 – RB 92), even if the social mapping study and landowner identification study was not carried out by the developer in breach of the provisions of s 63(a)(iii) and s 47(3) of the Act as contended and were thus null and void and even if the particular studies were in breach of a Court order, those circumstances did not prevent the Minister from making his determination. What is important is that “if the information presented to him in a landowner agreement, Court decisions etc, sufficiently identify the landowners, it is open to him to make a determination for the purpose of benefit sharing or appointment depending on the ownership, occupation or extent of the impact of the project on the land (Pelego at [52]).

91. There is no persuasive evidence to suggest the information presented to the Minister did not sufficiently identify the landowners. It was thus open to him to make a determination for the purpose of benefit sharing which he did.

92. The submissions on behalf of the Plaintiff at [37] – [39] of written submissions are respectfully misconceived.

93. It is the duty of the licensee to undertake social mapping studies and landowner identification studies however while a failure by the licensee to comply with the requirements of a social mapping study and landowner identification study under s 47 may constitute a ground of review of a grant of a petroleum licence to the licensee by an aggrieved party it does not constitute a ground to set aside a Ministerial determination, that is, the determination pursuant to s 169(2) as to who shall receive the benefits granted by Sections 167 and 168 of the Act. It is that decision that is sought to be reviewed by the Plaintiffs.

94. It follows that it was open to the Minister to rely upon the information he had before him.

95. Notwithstanding the Plaintiffs holding a different view on interpretation, Pelego is authority that was affirmed by the Supreme Court in Independent State of Papua New Guinea v Ako [2022] PGSC 131; SC2323.

96. In that case the sixth respondent, the developer, had completed a full-scale social mapping and landowner identification study on Hides PDL 7 pursuant to s. 47 of the Act. The finalized report on SMLI was submitted to the State through the DPE pursuant to s. 63(a)(iii) of the Act. The Department accepted the report which resulted in the State granting the petroleum license for Hides PDL7 to the developer and its Joint Venture Partners.

97. One of the issues before the appeal court was whether the primary Judge erred in holding that SMLI was a pre-condition to any Ministerial determination being made. The decision of Pelego was relied upon for this argument where in that proceeding, the challenge to the validity of the Ministerial determination had been dismissed. The same issue viz, the validity of the same Ministerial determination arose in the proceeding appealed from, the issue therefore res judicata. Thus, it was submitted that the primary judge erred in not dismissing the proceeding for being an abuse of process.

98. The appellants argued that the primary judge also erred in his interpretation of s 47 of the Act such they claimed is subject to the requirements of s. 169 of the Act. They argued the two provisions should be read together, which the primary judge failed to do.

99. The Supreme Court (Gavara-Nanu & Manuhu JJ, the late Justice Koeget having passed on), affirmed Pelego in finding that other judicial review proceedings before the proceeding under appeal, including Pelego, had challenged the Ministerial determination. Those proceedings were all dismissed by the National Court. There was no finding by Supreme Court that Pelego was bad law on the point now under consideration.

100. For the reasons given the ground of review based on ultra vires, breach of procedure prescribed by statute and failure to take into account relevant considerations and/or the taking into account of irrelevant considerations fails.

101. With respect to the ground of review breach of procedures as prescribed by statute (see 5.4 of Amended Statement in Support) the Plaintiffs particularised this ground in part by reference to another proceeding OS 123 of 2019. Those proceedings do not appear to be in evidence and are unnamed. They were not addressed in written submissions. The Court is thus unable to address whether or not the First Defendant breached the provision of s 169(7) of the Act as pleaded.

102. Similarly, it is unclear how the reference to Bernard v Durban [2016] PGNC 121; N6299 at 5.4 [b] of the Amended Statement in Support, in support of the breach of procedure ground advances matters. I repeat and rely upon my discussion of Pelego, a decision that is on point. No submissions were made on Bernard v Durban.

Decision made arbitrarily

103. At 5.51 of their Amended Statement in Support the Plaintiffs plead arbitrariness, based on:

1. Lack of consultation and participation and not in the best interests of the affected parties.
2. The decision was one that no reasonable person would have made.

100. The determination on benefit sharing was made without:
     • (i) a valid social mapping and LOBID report from the licensee; without directing the licensee to carry out a social mapping and LOBID study and without considering the document particularised at 5.51(c)(3); and
     • (ii) providing reasons for the decision.

4. Gazetteted error as new clans did not own the land as particularised.

104. This is not a recognised ground of judicial review, although arbitrary and capricious principles may be based on the unreasonableness of the decision in the sense of Wednesbury principles or present as part of the rule of natural justice (Hanjung Power Ltd v Marat [2009] N3751; Nining v Mann [2013] N5338; Musa Century Ltd v O’Neill [2013] N5334; see eg s 62(1) of the Constitution; see also Prendas v The State [1979] PNGLR 329 per Saldanha J).

105. The Plaintiffs should have pleaded this ground as part of breach of natural justice (Marat v Hanjung Power Ltd [2014] SC1337). For example, they repeat a failure to give reasons as part of 5.5.3 (b) of their Amended Statement in Support in support of the ground of breach of natural justice, where it can be considered. While the Court acknowledges overlapping, where the evidence may support more than one ground of review, a focussed approach to pleading is appreciated to avoid repetition and length which can lead to unfairness to an opponent, if not judicial frustration.

106. The Plaintiffs do not specifically address arbitrariness in their submissions. Nor do the Defendants.

107. The Plaintiffs carry the onus to prove their claim. They have not discharged it.

108. This ground is dismissed.

Unreasonableness (Wednesbury)

109. The Plaintiff’s pleading in this regard is found at 5.5.2 of is Amended Statement in Support and at [56]-58] of written submissions.

110. On the written submissions it is contended on behalf of the Plaintiffs that the First Defendant’s decision was unreasonable in the Wednesbury sense inter alia for the following reasons:

1. The First Defendant was unreasonable when he made his decision on who shall benefit from the PNG LNG project in PDL 1 and 7 regions.
   
2. On 6 March 2019 the Plaintiffs filed Court proceedings in OS 329 of 2019 against the First Defendant and others seeking restrain the First Defendant from making his determination, the Minister however making his determination in the face of pending court proceedings.
   

100. The percentage apportionment of the beneficiary clans is missing 5.6% from the determination in terms of percentage of each clans in PDL 1 with it unknown as to whom that balance has been allocated.
     

4. The Consent orders in the proceeding APP No 199 of 2022: Mara & Ors v Hangi Tandape & Ors recognises the compromise agreement of 7 July 1993 as binding on the parties in that proceeding, the agreement signed by all the leaders of the landowning clans of PDL 1. According to the compromise agreement the clans that from Hiwa should receive 50% and the clans from Tuguba receive the other 50% however the decision does not reflect that. The Tuguba were given 25% of the 57% from the UBSA allocation while the Hiwa were given 37% of the 57% of the UBSA allocation. Where the balance went is also unexplained.
   
5. The apportionment is also illogical because some of the clans who had bigger pieces of land should receive bigger percentage of the benefits and those with smaller portions less.

111. Based on the forgoing, the plaintiff submits that the First Defendant’s decision was unreasonable in the Wednesbury sense and no reasonable decision-maker would have made the decision.

112. The submissions on behalf of the Defendants did not specifically address this ground of review.

113. For a decision to be classified as unreasonable in the Wednesbury sense it must be irrational. It must be “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to it could have arrived at it.” (Council of Civil Unions v Minister of Civil Service [1985] AC 374 per Diplock LJ).

114. It is not what the court considers unreasonable, a different thing altogether (Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation [1948]1 KB 223 at [230] per Lord Greene MR),

115. The test under the Wednesbury principle is a high one. It will apply to only a limited class of cases (Kamuta v Sode [2006] N3067).

116. Applying these principles to the facts of this case I am unable to conclude that the decisions under review were so outrageous that they defied logic such as to meet the test of unreasonableness in the Wednesbury sense.

117. The fact that the Tuguba received a different percentage to the Hiwi or that some clans with larger portions of land received less than others with smaller potions of land does not in and of itself suggest irrationality. It is the Defendant’s case that the percentage split depends mainly on landownership within the proximity of the project site and the clans most or least impacted by the project. For example, landowners whose land has a well-head, processing plant or water source receive a higher percentage than those clans less affected by the project. Similarly, landowners who may be impacted by road access etc. The percentage split is not based on land size.

118. Further the fact that there were proceedings (OS 329 of 2019) on foot against the First Defendant and others seeking to restrain the First Defendant from making his determination, does not mean that it was irrational for the Minister to proceed to make a determination.

119. Nor in the long history of dispute and litigation spanning more than forty (40) years does a purported failure by the First Defendant to consider a compromise agreement dated 7 July 1993 (the document in evidence partly illegible and skewed in copying)^[1] or consent orders made on 1 September 1994 in APP No 109 of 1992 (incorrectly described in the Plaintiff’s written submissions as APP No 109 of 2022 and involving a different defendant to the current proceedings)^[2] enable the Court to conclude the Minister acted irrationally in making a determination that differed from the entitlements in that agreement in the context of the procedures he was required to follow under the Act. The fact that the compromise agreement entered into in 1993 shared benefits equally between the Tuguba and Hiwa Tribe does not permit a conclusion that the decision under review was unreasonable based on the Wednesday principles.

120. Further, the submission that the maths is incorrect in the sense that there is a missing allocation is not pleaded by the Plaintiffs. It is well established that the grounds of review must be properly pleaded and particularised and the material or evidence relied upon must relate or be relevant to those grounds (Haiveta, Leader of the Opposition v Wingti, Prime Minister and Attorney General and National Parlianent (1994) PNGLR 189; PNG National Stevedores Ltd v Baing and the State (2001) SCA 465; NCD Water & Sewerage Ltd v Tasion [2002] SC696).

121. The primary function of pleading is to give fair notice to the other side of a party’s case to enable the issues to be narrowed and to thereafter shape the litigation. The Plaintiffs pleading is deficient as there is no reference to any fact or law in the Statement in Support supporting its claim in this regard.

122. With respect to this ground of review the Plaintiffs in their Amended Statement of Support pleaded:

1. Failure to follow standard process;
2. Failure to consider opinions and views of the landowners and proceedings OS 123 of 2019;

100. No proper evidence to support the unfair and unrealistic percentage apportionment; and

4. Groups award a share when not recognised customary custodians or landowners.

123. The only relevant facts which could in anyway relate to this compliant appear at 3.12 to 3.15 of the Amended Statement. Nowhere in those facts or the evidence relied upon by the Plaintiffs in these proceedings is there any reference to a missing percentage allocation as a fact that supports the ground of unreasonableness. That fact only emerges on the written submissions. The Plaintiffs should not be permitted to rely upon submissions which have no connection with a ground of review as pleaded and particularised (Philip v the National Education Board (2008) N4024).

124. While there may be instances where matters not pleaded are raised at trial without objection or the other party’s conduct is such that the circumstances suggest no unfairness, this is not such a case. The Defendants, by way of primary response, relied on Pelego, as was open to them. The mathematical error raised by the Plaintiffs in submissions should have been pleaded and supported by evidence.

125. Given the high bar for the test of unreasonableness, not met by the Plaintiffs, this ground of review is dismissed.

Bias or Apprehended Bias

126. The Plaintiffs plead this ground at 5.5.4 in their Statement in Support, however no submissions are made by way of written submissions.

127. The Defendants made no submissions in reply.

128. The duty to act fairly and to be seen to act fairly, as provided by s 59(2) of the Constitution, implies an absence of bias on the part of the decision-making body. If the decision-making process is tainted in some way by a lack of independence or impartiality or bias, then it may amount to a breach of the principles of natural justice.

129. The duty to act fairly includes declarations of any conflicts of interest, where necessary, to uphold that duty.

130. The Plaintiff pleads conflict of interest on the part of LOBID officers because one of the team members, Mr Amos Diwi, is a member of the Tuguba Yugu clan who purportedly gave advice to the First and Second Defendant.

131. Based on the pleading the suggestion appears to be that Mr Diwi and the officers of the Defendants were somehow in league for an improper purpose. The pleadings however are deficient and unsupported by any persuasive evidence.

132. The Plaintiff also pleads that the LOBID Team were handpicked and had no authority to sign important documents.

133. There is a paucity of evidence to support this ground.

134. It is trite to observe that an allegation of bias on the part of anyone, let alone a public official, is a serious allegation, one that should only be made with cogent supportive evidence given the potential impacts of the allegation on a person’s character and reputation. It is also one, that a cautious and prudent lawyer, should not raise without the express written instructions of the client.

135. It is trite to observe that because a party views a decision as unacceptable, arbitrary, wrong and unreasonable does not mean it is infected with bias. It is a leap in logic unaddressed on the evidence.

136. It is also trite to observe that because Mr Diwi may be an LOBID officer and a member of a clan, it is a circumstance that places him in a position of conflict. A determination on conflict of interest is dependent on a range of considerations, including Mr Diwi’s personal interest, the nature of his professional duties, the likelihood of undue or perceived influence on his professional judgment and the seriousness of the risk presented.

137. In that regard, the Plaintiffs’ evidence is deficient.

138. Mr Ako’s affidavit filed 1 April 2019 makes no mention of Mr Diwi at all. That lack of evidence, however, did not dissuade Mr Ako from asserting constructive fraud on the part of the officers of the Defendants, an assertion not only unparticularised in his evidence, but one not grounded in the pleadings. While fraud is a ground of judicial review it must be pleaded and the particulars of the fraud exactly given and the allegations established by strict proof and clear evidence by the party asserting it. That did not occur here.

139. Similarly, Mr Ako’s supplementary affidavit filed 9 April 2019 makes no mention of Mr Diwi. Nor did Mr Tamaka’s affidavit filed on 5 April 2019.

140. The only reference to Mr Diwi is at [46] of Mr Takima’s affidavit filed 1 April 2029 wherein he deposes to “a conflict of interest with improper motives” based on nothing more, it appears, than Mr Diwi being an LOBID officer from the Tuguba clan and the LOBID exercise conducted purportedly containing “many errors, submissions and incorrect additions of names not known and alleged ghosts clans”.

141. At [47] of the same affidavit fraud rears its head again based on unparticularised assertion that “there were many fraudulent and wrong things”.

142. The further affidavits of the former lead Plaintiffs Mr Takima filed 9 March and 20 July 2023, and on 12 April and 14 May 2024 and Mr Ako filed 14 May 2024 do not advance matters.

143. Nor do any of the other affidavits relied upon by the Plaintiffs in these proceedings.

144. In short, the evidence does not permit the Court to make the assessments necessary to find the decision was infected by bias or apprehended bias.

145. This ground is dismissed.

Breach of Natural Justice

146. The Plaintiff raises natural justice at 5.5.3 of their Amended Statement. It is addressed at [79] to [88] of written submissions.

147. The Plaintiffs contend two bases grounding their claim that they were not accorded natural justice under s 59 of the Constitution.

148. Firstly, they contend that the First Defendant failed to allow or request the clans of the Tuguba tribe to submit to him agreements and disputes with associated submissions for him to consider before making his decision bas required by s 169(6) of the Act.

149. The Plaintiffs rely upon the unpublished decision of Hamule Ngiame v Pok (OS(JR) No 216 of 2019) (incorrectly referred to at [81] – [82] of written submissions as having been a decision made by me) which is at RB p 467, wherein the learned Judge viewed it prudent, given the general scheme of the Act, that where there is no sharing agreement by the beneficiaries that the Minister must do his very best to encourage the beneficiaries to agree (at [34] – [35]). This is not a case however where it can be said that the beneficiaries of royalties were not afforded an opportunity to agree.

150. The second basis on which the Plaintiffs assert denial of natural justice by the First Defendant is that he did not give reasons for how he made his determination, for example how he arrived at the decision that the Tuguba clan of PDL 1 are given the same percentage of 12.5% when the clans do not own the same portions of land within PDL 1 and 7. The same argument applies to the Tuguba Tribe of the Tuguba region of PDL 7 where the beneficiary clans are each given 2.778%. The same applied to the Timalia Kugulu Tribe of PDL 7 whose clans are each given 4.17%.

151. The Court does not accept that there has been a denial of natural justice on this basis.

152. While the duty to give reasons is an integral part of the duty of a public official to accord natural justice to those affected by the official’s decision (Ponau v Teaching Service Commission Discplinary Committee [2006] N3059; Ombudsman Commission v Yama [2004] SC747; Asiki v Zurenuoc [2005] SC797), as evidenced by the gazette notices relating to the decision, the Minister outlined the documents considered by him namely the reports and signed Clan Consent Forms, the landowner identification studies carried out under s 47 of the Act, the UBSA, the PDL 1 LBBSA and other related submissions for the purpose of s 169 and 170 of the Act.

153. There was no need to provide written reasons in this case because the Clan Consent Forms reflected the Plaintiff’s own agreement which was then captured in the decision under review. The Plaintiffs are accordingly disputing their own agreement. They are complaining that the Minister did not provide reasons for an agreement they themselves reached following a fulsome consultation and negotiation process in which they participated.

154. On the evidence of Panda Ishmael, Manager project Coordination for the LOBID in Hides PDL’s 1 and 7:

1. Sanctioned by various NEC Decisions (19 of 2015, 193 of 2015, 162 of 2016 and NG49 of 2017) the DPE was tasked to complete the LOBID process in anticipation of royalty/equity benefits disbursement to the Project Area landowners, Provincial Governments and LLG’s of the PNG LNG Project footprint.
2. The LOBID process was conducted openly and transparently. Representatives from each of the affected clans were called in and participated in the meetings.

100. Security was provided.

4. The state facilitated meetings afforded the landowners an opportunity to discuss and verify and agree on final clan lists.
5. The landowners also agreed on the percentage sharing. What was agreed by the landowners was endorsed by themselves through the signing of the Clan Consent Forms.
6. The information on the Clan Consent Forms was captured in the Ministerial Gazettes reflecting what the landowners themselves had agreed. No addition was made to the agreement.

155. On the evidence of Steven Teya, Liaison Officer with the DPE:

1. The LOBID exercise executed by the DPE was consistent with the compromise agreement and Sir Arnold Amet Decision.
2. The LOBID exercise was conducted on 23 March 2019 at Juni Exxon Mobile Camp in Hides in the presence of DPE and other state officers, security personal and five (5) or six (6) representatives of each clan (RB 716).

100. The clan representatives were chosen by each clan, the names of the clan representatives called out in public in the event of objection and sent to the meeting area.

4. DPE carried out public vetting and the majority of the clans agreed and signed at the Juni training centre in Hides and during the signing the majority of the clans had no objection.
5. The representatives of the major clans in the Tuguba Region signed the Clan Consent Form (RB 743-749].

156. Both Mr Ishmael and Mr Teya who were subject to a Notice to Cross examine by the Plaintiffs filed 12 August 2024, were not called.

157. As can be seen in the Clan Consent form in evidence the lead Plaintiff throughout the proceedings until trial, Mr Erick Hawai and the Plaintiff Chief Marago Pate, signed the Consent Form on 5 February 2019.

158. Further, on the unchallenged evidence the Plaintiff Chief Walabe Mara (who no longer participates in these proceeidngs) was also present and actively participated in the LOBID exercise. His affidavit, filed 27 September 2019, did not suggest otherwise. He did not file a reply affidavit disputing his involvement.

159. In conclusion I am unbale to conclude any obligation on the Minister to give reasons about a decision made in circumstances where the decision under review reflected an agreement reached by clan representatives at a meeting and was the product of deliberations undertaken by representatives of their clans. It can be inferred that they had an understanding of how the agreement came about, one of the Plaintiffs having signed the Clan Consent form on behalf of his clan, and one of the two attorneys who were authorised by the Plaintiffs to negotiate on their behalf having done likewise.

160. In the circumstances I am unable to conclude that there was a breach of the Plaintiffs’ right of natural justice or “the duty to act fairly and, in principle, to be seen to act fairly” (s 59(2) of the Constitution) including, in the circumstances as outlined, by reason of an asserted failure to consider the compromise agreement.

161. This ground of review is dismissed.

CONCLUSION

162. In Application by Simon Ekanda [2024] SC2666, Salkia CJ said at [51] & [54]:

51. It is impossible for Papua New Guineans, including landowners to benefit from the mineral resources under their customary land if they had control over them, because in the first place they would not know their existence and second, even if they knew their existence they would not have the capacity to extract them. It will also be very difficult for exploration experts such as geologists and international corporations to carry out tests and conduct surveys where minerals are deposited and for the extractive industries such as mining companies to mine and develop the resources. Even if mining and exploration tenements and licenses were controlled, managed and administered by the government, one can imagine problems arising with constant landowner demands, if landowners were in control. Developers will be discouraged from participating in any form of resource development activities such as mining and other forms of extractive enterprises and large-scale commercial ventures in the country.

...

54. In my view, what is required is for the government of the day to fairly compensate the landowners by giving them fair and equitable benefits which are commensurate to the value of resources extracted from their customary land. This was indeed recommended by the CPC in its Report (p.2/18), which had been embodied in the Constitution under the National Goals and Directive Principles. The system under the existing constitutional and legislative framework in my view already ensures and provides for sufficient and equitable distribution of the benefits from the mineral resources extracted from customary land to all Papua New Guineans....

163. The facts of this case highlight the problems identified. Given the large group of people whose interests are required to be considered there is never going to be complete agreement as to how royalties are shared.

164. The issues raised before this Court have, however, been judicially determined in other matters by this Court. There is no basis for this Court to interfere on any ground of review raised.

165. The application fails on standing. The grounds of review are otherwise unmeritorious.

166. The application is dismissed.

ORDERS

1. The proceedings for judicial review are dismissed.
2. The Plaintiffs pay the Defendants costs on a party/party basis to be agreed or taxed.
3. Time to abridge.

Lawyers for the plaintiffs: Boma Lawyers
Lawyer for the defendants: Solicitor General

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^[1] An agreement that had its genesis in a Commission of Inquiry by the then Chief Justice who made findings in favour of the Hiwa viewed by the Tuguba as wrong and against Hela custom resulting in appeals (affidavit of Richard Takima filed 1 April 2019 at [11]).
^[2] The appeal between the Tuguba Jami Tabu Clan as Plaintiff and the Aruna Tribe of the Hiwa Tribe Nogali Southern Highland Province as Defendant