In Re Reference by the Ombudsman Commission of Papua New Guinea [2010] PGSC 40; SC1088 (17 December 2010)

SC1088

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF No. 05 OF 2005

REFERENCE PURSUANT TO CONSTITUTION, SECTION 19;
IN THE MATTER OF FORESTRY (AMENDMENT) ACT 2005

REFERENCE BY THE OMBUDSMAN COMMISSION OF
PAPUA NEW GUINEA

Waigani: Injia, CJ, Salika, DCJ,
Sevua, Kirriwom &Gavara-Nanu, JJ

2009: 29th & 30th June
2010: 17th December

CONSTITUTIONAL LAW – Constitutional Reference – Statute – Forestry Act and Forest (Amendment) Act 2005 - Whether non- compliance with or failure to give effect to the National Goals and Directive Principles and Basic Social Obligations is a valid ground to challenge to Constitutionality of law.

Ombudsman Commission of Papua New Guinea, supported by a group of timber resource owners, filed a Supreme Court reference on the question of constitutional validity of Forestry (Amendment) Act 2005 following amendment to the Act on 3 August 2005 by the National Parliament, claiming it to have deprived the land and resource owners the right of consultation before the State compulsorily acquired their resource areas for logging operations:

Held:
Declined to answer all questions for want of clarity of substance, ambiguity in context, non-justiciability and those related reasons given in the judgment.

Case cited in the judgment:
Special Reference by the Executive of Fly River Provincial Government, Re Organic Law on the Provincial Governments and Local –Level Governments (2010) SC 1057.

Counsel:

V. Narokobi, for the Referror – Ombudsman Commission
R. Pato, for the First Intervenor- Minister for Forests
S. Liria, for the Second Intervenor - Leader of the Opposition
I. Shepherd, for the Third Intervenor - PNG Forest Board
C. Mende, for the Fourth Intervenor - Speaker of National Parliament
M. Cooke QC with A Kajie, for the Fifth Intervenor - John Danaya & Others

17th December, 2010

DECISION

1. BY THE COURT: This is a reference by the Ombudsman Commission seeking the Supreme Court''s opinion on questions of constitutional validity of the Forestry (Amendment) Act 2005 and other provisions of the Forestry Act 1991 as amended.
   
2. The main focus of the Reference is the amendment law which repealed s 59 of the Act by removing the requirement to consult the customary owners of forest resources who are parties to the Forest Management Agreement (FMA). The customary owners were one of three groups of bodies or persons who under s 59 were to be consulted by the National Forest Authority (NFA) before a timber permit is issued to the project developer. Section 59 was in the following terms:
   

59. BOARD TO CONSULT WITH CUSTOMARY OWNERS AND PROVINCIAL GOVERNMENT

Where the Authority has entered into a Forestry Management Agreement, the Board shall consult with –

(a) The customary owners who are parties to that Agreement; and

(b) The provincial government for the province in which the area covered by the agreement is situated; and

(c ) The member or members of Parliament and the electorates in which the area covered by the agreement is situated, in relation to the intentions of the Board in recommending the allocation of timber permit over or in relation to that area.

3. In the Reference, questions were also raised on other provisions of the Act that relate to consultation with customary resource owners.
   
4. The primary basis of the challenge is that those statutory provisions are in conflict with or fail to give effect to Goal No. 2 (Equality and Participation) and Goal No. 4 (Natural Resources and Environment) of the National Goals and Directive Principles (NGDP) and the Basic Social Obligations (BSO) set out in the Preamble of the Constitution which we have set out in full in the judgment below.
   
5. There were nine (9) questions posed in the Reference which we have also set out in full in the judgment but only six (6) were pursued at the hearing. We consider each question separately in the succeeding paragraphs of the judgment.
   
6. However, firstly we set out the relevant sections and part or parts of the Forestry Amendment Act No. 3 of 2005 that have come under scrutiny for purpose of this Reference:
   

PART III.—FOREST MANAGEMENT AND DEVELOPMENT.

Division 1.—General.

46. Customary resource ownership.

The rights of the customary owners of a forest resource shall be fully recognized and respected in all transactions affecting the resource.

Division 2.—Forest Plans.

Subdivision A.—National Forest Plan.

47. National Forest Plan.

..........

48. National Forest Plan to be presented to Parliament.

.......

Subdivision B.—Provincial Forest Plans.

49. Provincial Forest Plans.

(1) Each provincial government shall, as soon as practicable after the coming into operation of this Act, in consultation with the Provincial Forest Management Committee, and in conformity with the National Forestry Development Guidelines, draw up a Provincial Forest Plan.

(2) A Provincial Forest Plan shall contain—

(a) Provincial Forestry Development Guidelines; and

(b) a five year rolling forest development programme.

(3) Provincial Forestry Development Guidelines referred to in Subsection (2)(a) shall—

(a) provide an overview of the role of forestry in the economy of the province; and

(b) be broadly directed towards areas of industrial, rural, economic and social development objectives; and

(c) set out broad objectives and predictions for the long term of 40 years and, in greater detail, for the medium term of 10 years; and

(d) state how the forestry sub-sector is expected to contribute to the economy; and

(e) be reviewed every five years from the date of the coming into operation of the Forestry (Amendment) Act 2005.

(4) A Provincial Forest Plan shall be submitted to the Authority within three months of the review under Subsection (3)(e).

(5) Where a Provincial Forest Plan is not submitted to the Authority or is not submitted within the required period specified in Subsection (4), a new forest development area shall not be included in the Plan for the succeeding five years.

(6) Notwithstanding the provisions of Subsection (4), the Board may grant an extension of time not exceeding six months from the date the National Forest Plan is tabled in Parliament under Section 48, for the submission of a Provincial Forest Plan and, upon approval by the Minister on the recommendation of the Board, the Provincial Forest Plan shall be deemed to form part of the National Forest Plan.

50. Provincial Forest Plans to be submitted to Board, etc.

(1) The Chairman of the Provincial Forestry Committee shall, on completion of a Provincial Forest Plan, submit a copy to the Board.

(2) The Board shall consider a Provincial Forest Plan submitted to it under Subsection (1) and, where it considers that the Plan is inconsistent with the National Forest Policy or with the National Forestry Development Guidelines, shall refer it back to the provincial government with details of the inconsistency.

(3) Where a Provincial Forest Plan has been referred back to a provincial government under Subsection (2), the provincial government shall remove the inconsistency and the Chairman of the Provincial Forestry Committee shall resubmit the Provincial Forest Plan to the Board.

51. Provincial Forest Plan to be sent to Minister, etc.

Where the Board considers that a Provincial Forest Plan submitted under Section 50(1) or resubmitted under Section 50(3) is consistent with the National Forestry Development Guidelines, it shall—

(a) notify the Chairman of the Provincial Forestry Committee, who shall table a copy of the Provincial Forest Plan in the provincial assembly; and

(b) send a copy of the Provincial Forest Plan to the Minister.

Division 3.—Forest Protection.

52. Restricted area.

........

53. Burning permits.

.........

Division 4.—Resource Acquisition, etc.

54. Forest resource development to accord with National Forest Plan.

Forest resources shall only be developed in accordance with the National Forest Plan.

55. Types of land on which, and manner in which forest industry activities may be permitted.

(1) Subject to Subsection (2) only, a forest industry participant may exercise timber rights on land which is—

(a) Government land—as approved by the Board; and

(b) State leasehold land—where the lessee consents and subject to the conditions of the lease; and

(c) private leasehold—where the owner consents; and

(d) private freehold—where the owner consents; and

(e) customary land—where—

(i) a Forest Management Agreement in accordance with this Division has been entered into between the customary owners and the Authority; or

(ii) a timber authority has been granted; or

(iii) a clearing authority has been granted under Section 90(B) or 90(D).

(2) A forest industry participant may carry out forest industry activities only under and in accordance with—

(a) a timber permit granted under Section 73; or

(b) a timber authority granted under Section 87; or

(c) a licence issued under Section 92; or

(d) a forest clearing authority under Section 90(B) or 90(D); or

(e) . . . [Repealed]

(f) . . . [Repealed]

56. Acquisition of timber rights, etc, by the Authority.

(1) Subject to this Division, the Authority may acquire timber rights from customary owners pursuant to a Forestry Management Agreement between the customary owners and the Authority.

(2) An acquisition under Subsection (1) is not valid, and no forest Management Agreement is valid, unless it is approved by the Minister.

(3) No acquisition under this section shall affect the customary rights of ownership of the land.

57. Obtaining consent of customary owners to Forest Management Agreement.

(1) Where it is proposed to enter into a Forest Management Agreement over customary land, the title of the customary owners to that land shall be—

(a) vested in a land group or land groups incorporated under the Land Groups Incorporation Act (Chapter 147); or

(b) registered under a law providing for the registration of title to customary land.

(2) Where it is impractical to give effect to the requirements of Subsection (1)(a) or (b), a Forest Management Agreement may be executed on behalf of customary groups who are customary owners in respect of the land covered by the Agreement, by agents of such groups, provided that—

(a) such agents are authorized to so act in a manner which is consistent with the custom of the group they represent; and

(b) 75% of the adult members resident on the land of each such group give written consent to their group entering into the Agreement.

(3) Where the Authority intends to enter into a Forestry Management Agreement, the Board shall consult with—

(a) the Provincial Government for the province and the Local-level Government in which the area covered by the Agreement is situated; and

(b) the member or members of Parliament for the Province and the electorate or electorates in which the area covered by the Agreement is situated,

in relation to the intentions of the Board to enter into the proposed Forest Management Agreement.

58. Forest Management Agreement.

A Forest Management Agreement shall—

(a) be in writing; and

(b) specify the monetary and other benefits, if any, to be received by the customary owners in consideration for the rights granted; and

(c) specify the estimated volume or other measure of quantity of merchantable timber in the area covered by the Agreement; and

(d) specify a term of sufficient duration in order to allow for proper forest management measures to be carried out to completion; and

(e) be accompanied by a map showing clearly the boundaries of the area covered by the Agreement; and

(f) contain a certificate from the Provincial Forest Management Committee to the effect that it is satisfied as to—

(i) the authenticity of the tenure of the customary land alleged by the persons or land group or groups claiming to be the customary owners; and

(ii) the willingness of those customary owners to enter into the agreement; and

(g) specify and other forestry related land use options, if any.

59. . . . [Repealed]

60. Rights under Forest Management Agreement.

Where the Authority enters into a Forest Management Agreement—

(a) subject to this Act and the terms and conditions of the Agreement, the Authority may assign timber rights acquired under the Agreement to one or more other persons; and

(b) for the purposes of exercising timber rights, the Authority, and persons claiming under the Authority may, according to the terms of the Agreement—

(i) enter on land covered by the Agreement; and

(ii) build, maintain and use roads, wharves, bridges, buildings and other infrastructure on land covered by the Agreement; and

(iii) use gravel on land covered by the Agreement free of charge for the purposes of Subparagraph (ii).

7. Next in the sequence of laws we also set out in our short judgment are the Preamble to the Constitution which contain the National Goals and Directive Principles (NGDP) and Basic Rights and Basic Social Obligations (BSO) and other relevant provisions of the Constitution that the Referror contends are in conflict with the amendment law:
   

""National Goals and Directive Principles.

WE HEREBY PROCLAIM the following aims as our National Goals, and direct all persons and bodies, corporate and unincorporate, to be guided by these our declared Directives in pursuing and achieving our aims:—

1. Integral human development.

We declare our first goal to be for every person to be dynamically involved in the process of freeing himself or herself from every form of domination or oppression so that each man or woman will have the opportunity to develop as a whole person in relationship with others.

WE ACCORDINGLY CALL FOR—

(1) everyone to be involved in our endeavours to achieve integral human development of the whole person for every person and to seek fulfilment through his or her contribution to the common good; and

(2) education to be based on mutual respect and dialogue, and to promote awareness of our human potential and motivation to achieve our National Goals through self-reliant effort; and

(3) all forms of beneficial creativity, including sciences and cultures, to be actively encouraged; and

(4) improvement in the level of nutrition and the standard of public health to enable our people to attain self fulfilment; and

(5) the family unit to be recognized as the fundamental basis of our society, and for every step to be taken to promote the moral, cultural, economic and social standing of the Melanesian family; and

(6) development to take place primarily through the use of Papua New Guinean forms of social and political organization.

2. Equality and participation.

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR—

(1) an equal opportunity for every citizen to take part in the political, economic, social, religious and cultural life of the country; and

(2) the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity; and

(3) every effort to be made to achieve an equitable distribution of incomes and other benefits of development among individuals and throughout the various parts of the country; and

(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations; and

(5) equal participation by women citizens in all political, economic, social and religious activities; and

(6) the maximization of the number of citizens participating in every aspect of development; and

(7) active steps to be taken to facilitate the organization and legal recognition of all groups engaging in development activities; and

(8) means to be provided to ensure that any citizen can exercise his personal creativity and enterprise in pursuit of fulfilment that is consistent with the common good, and for no citizen to be deprived of this opportunity because of the predominant position of another; and

(9) every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community; and

(10) all persons and governmental bodies of Papua New Guinea to ensure that, as far as possible, political and official bodies are so composed as to be broadly representative of citizens from the various areas of the country; and

(11) all persons and governmental bodies to endeavour to achieve universal literacy in Pisin, Hiri Motu or English, and in "tok ples" or "ita eda tano gado"; and

(12) recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality.

3. National sovereignty and self-reliance.

We declare our third goal to be for Papua New Guinea to be politically and economically independent, and our economy basically self-reliant.

WE ACCORDINGLY CALL FOR—

(1) our leaders to be committed to these National Goals and Directive Principles, to ensure that their freedom to make decisions is not restricted by obligations to or relationship with others, and to make all of their decisions in the national interest; and

(2) all governmental bodies to base their planning for political, economic and social development on these Goals and Principles; and

(3) internal interdependence and solidarity among citizens, and between provinces, to be actively promoted; and

(4) citizens and governmental bodies to have control of the bulk of economic enterprise and production; and

(5) strict control of foreign investment capital and wise assessment of foreign ideas and values so that these will be subordinate to the goal of national sovereignty and self-reliance, and in particular for the entry of foreign capital to be geared to internal social and economic policies and to the integrity of the Nation and the People; and

(6) the State to take effective measures to control and actively participate in the national economy, and in particular to control major enterprises engaged in the exploitation of natural resources; and

(7) economic development to take place primarily by the use of skills and resources available in the country either from citizens or the State and not in dependence on imported skills and resources; and

(8) the constant recognition of our sovereignty, which must not be undermined by dependence on foreign assistance of any sort, and in particular for no investment, military or foreign-aid agreement or understanding to be entered into that imperils our self-reliance and self-respect, or our commitment to these National Goals and Directive Principles, or that may lead to substantial dependence upon or influence by any country, investor, lender or donor.

4. Natural resources and environment.

We declare our fourth goal to be for Papua New Guinea's natural resources and environment to be conserved and used for the collective benefit of us all, and be replenished for the benefit of future generations.

WE ACCORDINGLY CALL FOR—

(1) wise use to be made of our natural resources and the environment in and on the land or seabed, in the sea, under the land, and in the air, in the interests of our development and in trust for future generations; and

(2) the conservation and replenishment, for the benefit of ourselves and posterity, of the environment and its sacred, scenic, and historical qualities; and

(3) all necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees.

5. Papua New Guinean ways.

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.

WE ACCORDINGLY CALL FOR—

(1) a fundamental re-orientation of our attitudes and the institutions of government, commerce, education and religion towards Papua New Guinean forms of participation, consultation, and consensus, and a continuous renewal of the responsiveness of these institutions to the needs and attitudes of the People; and

(2) particular emphasis in our economic development to be placed on small-scale artisan, service and business activity; and

(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

(4) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve their cultural, social, economic and ethical quality.

• Basic Rights and Social Obligations (BSO).
  

Basic Rights.

WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:—

(a) life, liberty, security of the person and the protection of the law; and

(b) the right to take part in political activities; and

(c) freedom from inhuman treatment and forced labour; and

(d) freedom of conscience, of expression, of information and of assembly and association; and

(e) freedom of employment and freedom of movement; and

(f) protection for the privacy of their homes and other property and from unjust deprivation of property,

and have accordingly included in this Constitution provisions designed to afford protection to those rights and freedoms, subject to such limitations on that protection as are contained in those provisions, being limitations primarily designed to ensure that the enjoyment of the acknowledged rights and freedoms by an individual does not prejudice the rights and freedoms of others or the legitimate public interest.

Basic Social Obligations.

WE HEREBY DECLARE that all persons in our country have the following basic obligations to themselves and their descendants, to each other, and to the Nation:—

(a) to respect, and to act in the spirit of, this Constitution; and

(b) to recognize that they can fully develop their capabilities and advance their true interests only by active participation in the development of the national community as a whole; and

(c) to exercise the rights guaranteed or conferred by this Constitution, and to use the opportunities made available to them under it to participate fully in the government of the Nation; and

(d) to protect Papua New Guinea and to safeguard the national wealth, resources and environment in the interests not only of the present generation but also of future generations; and

(e) to work according to their talents in socially useful employment, and if necessary to create for themselves legitimate opportunities for such employment; and

(f) to respect the rights and freedoms of others, and to co-operate fully with others in the interests of interdependence and solidarity; and

(g) to contribute, as required by law, according to their means to the revenues required for the advancement of the Nation and the purposes of Papua New Guinea; and

(h) in the case of parents, to support, assist and educate their children (whether born in or out of wedlock), and in particular to give them a true understanding of their basic rights and obligations and of the National Goals and Directive Principles; and

(i) in the case of the children, to respect their parents.

IN ADDITION, WE HEREBY DECLARE that all citizens have an obligation to themselves and their descendants, to each other and to the Nation to use profits from economic activities in the advancement of our country and our people, and that the law may impose a similar obligation on non-citizens carrying on economic activities in or from our country.""

• Constitution, Section 25 (Implementation of the National Goals and Directive Principles).
  

""25. Implementation of the National Goals and Directive Principles.

(1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.(emphasis is ours)

(2) Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.

(3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

(4) Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate.""

• Constitution, Section 63 (Enforcement of the Basic Social Obligations).
  

""63. Enforcement of the Basic Social Obligations.

(1) Except to the extent provided in Subsections (3) and (4), the Basic Social Obligations are non-justiciable.(emphasis is ours)

(2) Nevertheless, it is the duty of all governmental bodies to encourage compliance with them as far as lies within their respective powers.

(3) Where any law, or any power conferred or duty imposed by any law (whether the power or duty be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised, complied with or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to enforce or encourage compliance with the Basic Social Obligations, or at least not to derogate them, it is to be understood, applied, exercised, complied with or enforced in that way.

(4) Subsection (1) does not apply in the exercise of the jurisdiction of the Ombudsman Commission or other body prescribed for the purposes of Division III.2 (leadership code), which shall take the Basic Social Obligations fully into account in all cases as appropriate.""

• Constitution, Part III.3 Subdivision C – Qualified Rights, in particular Section 38 (General qualifications on qualified rights).
  

""38. General qualifications on qualified rights.

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.""

• Constitution, Part III.3 Subdivision C – Qualified Rights, in particular Section 53 (Protection from unjust deprivation of property).
  

""53. Protection from unjust deprivation of property.

(1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—

(a) the property is required for—

(i) a public purpose; or

(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,

that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and

(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.

(2) Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected.

(3) For the purposes of Subsection (2), compensation shall not be deemed not to be just and on just terms solely by reason of a fair provision for deferred payment, payment by instalments or compensation otherwise than in cash.

(4) In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to—

(a) the forfeiture; or

(b) the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession),

of any right or interest in property.

(5) Nothing in the preceding provisions of this section prevents—

(a) the taking of possession of property, or the acquisition of an interest in or right over property, that is authorized by any other provision of this Constitution; or

(b) any taking of possession or acquisition—

(i) in consequence of an offence or attempted offence against, or a breach or attempted breach of, or other failure to comply with a law; or

(ii) in satisfaction of a debt or civil obligation; or

(iii) subject to Subsection (6), where the property is or may be required as evidence in proceedings or possible proceedings before a court or tribunal,

in accordance with a law that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind; or

(c) any taking of possession or acquisition that was an incident of the grant or acceptance of, or of any interest in or right over, that property or any other property by the holder or any of his predecessors in title; or

(d) any taking of possession or acquisition that is in accordance with custom; or

(e) any taking of possession or acquisition of ownerless or abandoned property (other than customary land); or

(f) any restriction on the use of or on dealing with property or any interest in or right over any property that is reasonably necessary for the preservation of the environment or of the national cultural inheritance.

(6) Subsection (5)(b)(iii) does not authorize the retention of any property after the end of the period for which its retention is reasonably required for the purpose referred to in that paragraph.

(7) Nothing in the preceding provisions of this section applies to or in relation to the property of any person who is not a citizen and the power to compulsorily take possession of, or to acquire an interest in, or right over, the property of any such person shall be as provided for by an Act of the Parliament.""

• Constitution, Part III.3 Subdivision C – Qualified Rights, in particular Section 55 (Equality of citizens).
  

""55. Equality of citizens.

(1) Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.

(2) Subsection (1) does not prevent the making of laws for the special benefit, welfare, protection or advancement of females, children and young persons, members of underprivileged or less advanced groups or residents of less advanced areas.

(3) Subsection (1) does not affect the operation of a pre-Independence law.""

8. The questions posed for the Supreme Court are as follows:
   
   1. By Section 56 of the Forest Act 1991 the Papua New Guinea forest authority may acquire the timber rights of customary owners.
      

Does the acquisition of the timber rights of customary owners under a Forestry Management Agreement, constitute participation by the customary owners in the development of their resources within the meaning of the National Goals and directive Principles of the Constitution, and Section 6 and 46 of the Forestry Act 1991 or is it only a disposition of their rights and interests as in an agreement for sale and purchase for a money and/or benefits consideration?

2. Does the repeal of Section 59 of the Act by Section 17 of the Forestry (Amendment) Act 2005 constitute a revocation of all or any right of consultation or participation as prescribed by the Constitution and Sections 6 and 46 of the Act on the allocation of timber permits respecting resources acquired from them by a Forestry Management Agreement under Section 56 of the Act?
   
3. By Section 2 of the Forestry Act 1991 a Forest Development Project means a project to develop forest resources within an area the subject of a Forest Management Agreement. Under a Forest Management Agreement customary owners assign, and the Papua New Guinea Forest Authority acquires the timber rights and interests of customary resources owners for a monetary/benefit consideration.
   

Does the requirement under Section 62 and 63 of the Act for the Provincial Forest Management Committee, after such assignment, to:

(a) Investigate participation by landowners in Forest development projects; and/or
(b) Prepare guidelines for such projects in consultation with resource owners,

Constitute participation and consultation as require by the Constitution and Sections 6 and 46 of the Act?

4. Section 53 of the Constitution provides for Protection from Unjust Deprivation of property unless such property is reasonably required for public purpose ""that I so declared and so described"" in an Organic Law or an act of the Parliament.
   

Does Section 53(1)(a) and (b) [which states that a public purpose ""that is so declared and so described,""] require that not only shall an Organic Law or an act of the Parliament declare a particular public purpose, but it shall also describe or define that purpose, and state the necessity and afford reasonable justification for it?

5. If the Answer to Question 4 is, Yes:
   

Does the absence of the requirements of Section 53(1)(a) and (b) of the Constitution in Section 1(3) of the Forestry Act 1991 render that subsection and Part III, Division 4 (Resource Acquisition, etc) of the Act invalid and ineffective to qualify the protections of Section 53 of the Constitution in regard to acquisition of property rights under the Forestry Act 1991?

6. Part III, Division 6 (Project Consultation) of the Oil and Gas Act 1998, in particular Section 48 requires the State through the Minister responsible to convene a development forum that includes petroleum project area landowners, project dev elopers and other interested parties for the purposes of, among others, consultation prior to granting petroleum project development license or licenses to a developer of the a petroleum project.
   

Section 50 of the Oil and Gas Act 1998 states that the State and any other project area landowners, affected Local-level Governments and affected Provincial Governments shall enter into a Development Agreement. A development Agreement may contain matters agreed to among the parties.

The repeal of Section 59 of the Forest Act 1991 purports to or does in fact removes the rights of forest resource owners to engage in any meaningful consultation in respect of the development of their forest resources.

Is the repeal of Section 59 of the Act which provided for meaningful consultation with and by forest resource owners with the State and the forest developer discriminatory to forest resource owners and therefore, unconstitutional within the meaning and the spirit of Section 55 of the Constitution?

7. Does Section 1 of the Forestry Act 1991 comply with Section 38 of the Constitution to effect a valid qualification of rights or freedoms guaranteed under Part III.3.C of the Constitution (Special Rights of Citizens)?
   
8. Is Section 137(1E) of the Forestry (Amendment) Act 1991 valid and constitutional notwithstanding that it directly conflicts with the conservation principles, sustained yield management and logging practice required by the Constitution, the objects of the Papua New Guinea Forest Authority itself (Section 6) and Sections 58(d), 78 and 137 of the Act?
   
9. Does a Report by the Provincial Forest Management Committee on ""The social acceptability of the holder of the timber permit in the project area"" by the customary owners required to enable authorization of the extension of timber permits under Section 78 and/or extension of timer permits or other authorities, saved under Section 137 as amended, constitute participation and consultation as required by the Constitution, and Sections 6 and 46 of the Forestry Act 1991?
   
9. This Reference is filed by the Ombudsman Commission, one of the bodies authorized by the Constitution to bring such questions for the Supreme Court''s opinion and advice under section 19 of the Constitution and a number of parties having sufficient interest in the matter have entered appearances to be heard in the Reference. We identify the parties according to the positions they have taken on the issue in the Reference. On the affirmative side are the Ombudsman Commission, the Referror, John Danaya and Others who are some customary land or resource owners, the Fifth Intervener and the Leader of the Opposition, the Second Intervener. Defending the amendment and arguing the Negative case are the Speaker of the National Parliament, the Fourth Intervenor, Minister for Forests, who is the First Intervenor and the National or PNG Forest Board, the Third Intervenor. For want of consistency and clarity, we shall refer to the parties arguing the affirmative case as the Applicants and those arguing the negative case as the Respondents.
   
10. In or about 3 August 2005 the National Parliament passed a law amending the Forestry Act 1991 as amended which became known as Forestry (Amendment) Act 2005. The aim of the amendment was arguably to enable inter alia maximum Papua New Guinean participation in the wise use and development of the forest resource as a renewable asset and to utilize the nation''s forest resources to achieve economic growth, create employment and facilitate industrial and increased ''downstream'' processing of the forest resources.
    
11. The Applicants claim in this Reference that the amendment has taken away a fundamental safeguard that was guaranteed by section 59 of the Act now repealed despite the obvious statement in the preamble of the Act, which is the right to be consulted and to participate.
    
12. In view of the way the reference has been pursued and presented, we have set out the specific questions in their respective topics as addressed by counsel, in particular the referrer, in their submissions, and respond to them in the order of their presentation. It seems obvious to us that the answers to the first and second questions virtually set the scene and pace for the final determination of the entire reference. We shall therefore focus on questions 1 and 2 and where appropriate address other questions where different issues are raised,
    
13. In relation to the first question the Applicants contend that there was no participation by the resource owners except disposition of their customary rights by compulsion of law while the Respondents argue that the question is not relevant as the amendment caused no injustice to resource owners except that the Applicants have misconstrued the whole objective and the reason for the amendment. The converse of what the Applicants are contending was indeed the aim of the amendment and that is to be achieved under this new Act.
    
14. Question Two is all centred around the repeal of section 59 of the Act by section 17 of the amendment in which the Applicants contend that the repeal had effectively revoked the right of the customary owners of being consulted and their right to participate in the allocation of their timber resources for development contrary to the wishes and aspiration of the Constitution as enshrined in the National Goals and Directive Principles, the Basic Rights and Basic Social Obligations. It is submitted that if the repeal has that effect of depriving the customary owners of these rights, then the repeal must be held to be unconstitutional.
    
15. The second question in the reference compares the forestry legislation with the Mining Act 1992 and Oil and Gas Act 1998 with respect to consultation with the resource or customary owners which the Applicants contend was more meaningful and in accordance with the meaning of section 55 of the Constitution than the amended Forestry Act 2005.
    
16. The Respondents argue quite extensively that the Applicants failed to appreciate the real purport of the amendment which aimed at removing political interference at the level of consultation both before and after the signing of FMA and further contend that the repealed section 59 only related to period after the signing of the FMA whereas the amended legislation achieves a lot more including those rights that existed under that repealed section. Besides it was argued that where the reference invoked the provisions of the Constitution in the National Goals and Directive Principles (NGDP) and the Basic Rights and the Basic Social Obligations (BSO), these issues are non-justiciable and cannot be argued in this reference.
    
17. The same arguments were raised in question 3 and on the same grounds which were also adopted and applied in the rest of the other questions.
    
18. We have taken note of all counsels'' submissions on the questions raised and we respond to the issues raised in the questions below.
    

QUESTION 1. Acquisition of timber rights of customary owners.

19. Counsel for the Applicants contended that the Parliament''s power to make laws is not unlimited. Its powers are limited by NGDP and BSO. The law must be consistent with and give effect to the NGDP & BSO. Section 25 (2) and s 63 (2) oblige the National Parliament to give effect to NGDP and BSO respectively. Under s 25 (3(and s 63 (3), the Parliament''s failure to do so is in breach of the Constitution and is invalid. Parliament can only make laws in respect of forest resources that are consistent with NGDP No. 4 which says ""natural resources and the environment be conserved and used for the collective benefit of us all and be replenished for the benefit of future generations"". Sections 6, 46 and 59 (repealed) of the Act gives effect to the NGDP by recognizing the rights of resource owners and obliges the NFA to consult and involve forest resource owners in the development of their resources. The repeal of s 59 of the Act deprives the forest resource owners of their participation in the development of their forest resources through consultation. The FMA entered between the NFA and the resource owners without consultation (under repealed s 59) amounts to an agreement to dispose of their ownership rights.
    
20. Counsel for the Applicants were unable to cite any cases in this jurisdiction where a law or proposed law has been found to conflict with the NGDP and BSO and struck down.
    
21. Counsel for the Respondents argued that the NGDP and BSO are political statements and principles on good governance and their application are non - justiciable: Constitution, s 25 (1) and s 63 (1). Sections 25 (3) and 63 (3) apply to performance of powers given under statute by giving effect to NGDP and BSO. They contend that the question does not raise a proper constitutional question to be answered and the Court should decline to answer the question.
    
22. In our view, there is no question that the NGDP and BSO recognize the egalitarian state of Papua New Guinea traditional societies and the ownership rights of customary landowners and natural resources found on customary land. The NGDP calls for equal participation in the development of those resources to achieve maximum benefit for the people of PNG. The BSO calls for the respect of every citizens'' rights.
    
23. The NGDP and BSO are statements of political vision and developmental aspirations on which the State is founded. They also spell out the basic principles of good governance of themselves. Their application are non-justiciable: s 25 (1) and s 63 (1) of the Constitution. Except where the Constitution itself provides the NGDP and BSO to be used as an aid to the interpretation of specific statutes, they cannot be used as a ground to strike down legislation: see s 38 of the Constitution. The provisions of s 25 (3) and s 63(3) provide guide to exercise of power conferred by statute and of themselves do not provide a ground to invalidate an offending legislation. Indeed we are not aware of any law or proposed law being struck down by these Court solely on the grounds that it offends the NGDP and BSO. The proposition put to us by counsel for the Applicants is clearly against the expressed intention of the Constitution that laws should not be struck down by the Courts purely on the ground that the law offends or fails to give effect to political pronouncements on developmental aspirations and good governance.
    
24. To us also, the question is ambiguous as to the specific constitutional question to be answered by this Court. It is within this Court''s discretion to strike out or refuse to answer questions stated in a reference that is ambiguous. This Court emphasized the duty on referrers to state questions in a reference in clear and unambiguous terms, in the following terms:
    

""15. The referring authority must state the specific question that the Court is required to express an opinion on. The question must be stated in the reference in the appropriate manner. As a matter of good practice, reference questions should be stated in a clear and concise manner with sufficient particularity by reference to specific sections or parts of sections of a Constitutional law that the law or proposed law is said to be in conflict with. Constitutional questions should not be framed in a general, ambiguous, convoluted and duplicitous manner. Statement of reference questions in this manner makes the Court''s task difficult in identifying the precise question to be answered and leads counsel into ""an ambitious goose chase in a jungle of provisions"", so to speak, that results in the waste of the Court''s time. It is in the Court''s discretion to strike out such questions or decline to answer the question as offending O 4 r 16 of the Supreme Court Rules 1987. "" (Special Reference by the Executive of Fly River Provincial Government, Re Organic Law on the Provincial Governments and Local –Level Governments (2010) SC 1057.)

25. For the foregoing reasons, we decline to answer Question 1.
    

QUESTION 2. Consultation with customary owner of forest resources.

26. Counsel for the Applicants argue that the repeal of s 59 is unconstitutional because it is inconsistent with Goal No. 4 of NGDP and BSO which provide for consultation with resource owners in the development of natural resources and for their rights to ownership and use of those resources to be respected.
    
27. It is also submitted that the repeal of s 59 discriminates against forest resource owners in that provisions for consultation with other types of resource owners such as those under s 3 (3) of the Mining Act and Part III of the Oil and Gas Act 1998 remain intact. The amendment law is unconstitutional, it is argued, for this reason.
    
28. On the other hand, it is argued for the Respondents that insofar as the question is premised on the NGDP and BSO, they are non-justiciable.
    
29. The Respondents argued that the repeal of s 59 has little or no real impact on the consultation process with resource owners because there exists ample avenues for consultation with resource owners at all important facets of the FMA and grant of a timber permit. The resource owners are consulted in the negotiation leading to the signing of the FMA and that the resource owners are parties to the FMA: see s 6, s 46, s 57 (consent of customary landowners), s 58 (certificate of authenticity of consultation with customary landowners). They are also parties to the FMA. After the FMA and before the grant of timber permit, landowners are also consulted: s 62 (development options include landowner participation), s 64 (public advertisement of potential project giving landowners a say, s 67 (project benefit assessment reports), s 77 compiling environmental plan in consultation with land owners and s99 (5 year working plan to take into account impact on landowners and environment).
    
30. In relation to argument under s 55 of the Constitution, it is argued it is inappropriate to compare with landowners of other types of resource.
    
31. Finally it is argued for the Respondents that no Constitutional issues arise for determination by the Court under s 19.
    
32. We are of the view that the repeal of s 59 of the Act is not open to be challenged on the ground that the law fails to achieve the NGDP and BSO as those matters are non-justiciable: see s 25 (3), s 63 (3) and Schedule 1.7 of the Constitution. We agree with counsel for the respondents that there are ample consultation provisions for consultation with landowners both before and after the execution of the MPA and before the grant of the timber permit. The repeal of s 59 is of no material consequence to the resource owners.
    
33. Finally we are of the view that s 55 is irrelevant to the repeal of s 59 of the Act. We do not see how the issue of discrimination against forest resource owners arise after repeal of s 59 of the Act. The question is also ambiguous in this respect.
    
34. We also do not see any Constitutional issues given rise to by the repeal of s 59 of the Act for determination by this Court.
    
35. For the foregoing reasons, we decline to answer question 2 .
    

QUESTION 3. Requirement for forest development project.

36. This question raises the same issues raised in questions 1 and 2. For the reasons we gave in answer to questions 1 and 2, we decline to answer this question.
    

QUESTION 4. Protection of unjust deprivation of property.

37. Question 4 relates to application of s 53 of the Constitution to the amendment law.
    
38. It is submitted for the referrers that it is in the spirit of the NGDP and BSO that the Forestry Act should declare the public purpose and state the necessity for and afford reasonable justification for the law.
    
39. It is submitted for the respondents that this question does not raise any Constitutional question for the Court to determine. It is further argued that s1(3) of the Act complies with the requirement of s 53 (1)(a) and (b) of the Constitution.
    
40. In our view the question is too general and ambiguous as to its relativity to the Forestry Act or the amendment law. The question also does not raise any question for determination by this Court.
    
41. For the foregoing reasons we decline to answer this question.
    

QUESTION 5. Effect of absence of protection.

42. Question 5 is based on an answer to question 4 in the affirmative. It follows from our answer to question 4 that we decline to answer this question.
    

QUESTION 6. Compliance with the Constitutional requirements.

43. Question 6 relates to s 1 of the Act.
    
44. The same arguments advanced for the referrer in question 4 are made in respect of this ground.
    
45. It is argued for the interveners that s 38 is irrelevant to the rights under s 53 and s 55 of the Constitution. The Court should decline to answer this question.
    
46. In our view this question is very general and ambiguous. The question is unrelated to repeal of s 59 of the Act.
    
47. We also agree with counsel for Respondents that s 53 and s 55 appear to contain their own qualification provisions. They make no reference to the qualification provision in s 38. Also s 1 of the Act makes no reference to s 38. The question is either ambiguous or misconceived. We decline to answer this question for those reasons.
    

QUESTION 7. Legality of Savings of Existing Permits.

48. For the same reasons we have given in our answer to all the six questions, we also decline to answer this question.
    
49. In summary we decline to answer all the questions raised for the reasons we have given.
    

__________________________________________

V. Narokobi, In-House Counsel, Ombudsman Commission: Lawyer for the Referror
Steeles Lawyers: Lawyer for the First Intervenor:
Alfred Manase Lawyers: Lawyer for the Second Intervenor
Blake Dawson Waldron: Lawyer for the Third Intervenor
Kelly Naru Lawyers: Lawyer for the Fourth Intervenor
Public Interest Environment Lawyers: Lawyer for the Fifth Intervenor