In re Application by Francis Gem to enforce Constitutional Rights [2010] PGSC 57; SC1266 (4 October 2010)

SC1266

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 16 0F 2009

ENFORCEMENT PURSUANT TO SECTION 57 CONSTITUTION

APPLICATION BY FRANCIS GEM
TO ENFORCE CONSTITUTIONAL RIGHTS

Madang: Cannings J
2010: 1, 4 October

Taking of evidence and statement of facts by a single Judge of the Supreme Court upon direction by Supreme Court – Supreme Court Rules, Order 3, Rule 3.

The Supreme Court, constituted by three Judges, directed a single Judge of the Supreme Court to conduct a hearing for the purpose of taking evidence concerning three disputed facts that arose in the hearing of an application for enforcement of constitutional rights, and to state the facts found.

Found:

The three facts described as "disputed facts" in the application book are generally correct, subject to the clarification and qualifications noted in the findings.

Cases cited

The following case is cited in the findings:

Enforcement Pursuant to Section 57 Constitution, Application by Francis Gem (2010) SC1065

TAKING OF EVIDENCE

This was the taking of evidence by a single Judge of the Supreme Court and statement of facts found, upon direction of the Supreme Court.

Counsel

R William, for the applicant

4th October, 2010

1. CANNINGS J: I have been directed by the Supreme Court under Order 3, Rule 3 of the Supreme Court Rules to conduct a hearing for the purposes of taking evidence and to state the facts as I find them, arising from an application for enforcement of constitutional rights.

2. Order 3, Rule 3 states:

Upon the direction of the Court, either on the application of a party to the proceedings or of its own motion, a single Judge may take evidence upon any issue of the fact for the determination of the proceedings and state those facts as found by him, and the Court may act upon such statement of facts so far as it thinks fit to adopt it.

The Supreme Court directed that the hearing, taking of evidence and statement of facts be confined to disputed facts, of which there are three:

3. Many people and communities throughout Madang have been frustrated and upset by the proposed Pacific Marine Industrial Zone (PMIZ) project. They have expressed this at meetings in and around Madang and at the Madang People's Forum.

4. It was at a meeting of the Madang People's Forum at Josephstaal from 25 to 28 August 2009, which was attended by over 1,000 people, that the decision to stage a protest march was made.

5. The people at the forum selected Francis Gem as Chairman of the Idawad Association, Mathias Dum, Chairman of the Madang Lagoon Association and Tamlong Tabb, Vice-Chairman of the Madang Lagoon Association, to contact and meet with local authorities, being Governor Sir Arnold Amet, and Provincial Police Commander, Anthony Wagambie Jr, to advise them of the planned protest march.

(See application book, page 37.)

HEARING

6. It was conducted on 1 October 2010 at Madang. The applicant was the only interested party to attend. He was represented by Mr William of Nonggorr William Lawyers.

7. Other interested parties, including the Attorney-General and the Secretary for Commerce and Industry, had been represented at directions hearings in Madang on 13 August 2010 and at Waigani on 2 September 2010, and were aware of the hearing being set down for 1 October 2010 but failed to attend and failed to request an adjournment of the hearing. I am satisfied that all interested parties were given a reasonable opportunity to participate.

EVIDENCE

8. Three affidavits were admitted into evidence:

Exhibit A1: Affidavit of Francis Gem, sworn 15/10/09, filed 23/10/09 – included in the application book at pages 1-27;

Exhibit A2: Affidavit of Elizabeth Gem, sworn 9/9/10, filed 10/9/10 – not included in the application book – she is the applicant's wife, a housewife and a student – she deposes to her attendance at a meeting with Governor Amet on 7 October 2009 regarding the proposed protest march (which is not directly relevant to the disputed facts) and to her attendance on earlier dates at meetings at Riwo village, at which a committee was established to organise the protest march.

Exhibit R1: Affidavit of Anton Kulit, sworn 22/03/10, filed 23/03/10 – included in the application book at pages 30-32 – this affidavit was tendered by the applicant in the absence of the deponent but I considered that it should be admitted into evidence as clearly the deponent had, by consenting to its inclusion in the application book, wanted to have it considered by the Supreme Court – its contents, though relevant to the events leading up to the decision to prohibit the protest march, are not directly relevant to the disputed facts.

9. In addition, Francis Gem and Elizabeth Gem gave sworn oral testimony, consisting of examination-in-chief by Mr William, during which each witness elaborated on and clarified parts of their affidavits, and answered questions from the bench, which were focussed on identifying the nature and extent of the concerns of people in Madang Province about the PMIZ project.

BURDEN AND STANDARD OF PROOF

10. As the disputed facts are assertions of fact by the applicant and it is the applicant who is alleging that his constitutional rights have been infringed, he bears the onus of proving those facts. As to the standard of proof, the enforcement proceedings commenced by the applicant are civil proceedings, so the appropriate standard is on the balance of probabilities.

DISPUTED FACT 1: MANY PEOPLE FRUSTRATED AND UPSET ABOUT PMIZ

Evidence

11. Mr Gem says he is 40 years old, from Kananam, a coastal village 10 km north of Madang town, close to the site of the proposed PMIZ, which is between Kananam and Vidar, another coastal village to the south of Kananam. He is chairman of the Idawad Association, an unincorporated association set up as an interest group through which local people can air their views about developments in the local area, their aim being to ensure that development takes place in a way that supports the well-being of future generations.

12. Mr Gem gave evidence that the Kananam people are particularly upset about the project as it is going to be developed on land that has traditionally been theirs. The land was given to the Alexishafen Catholic Mission about 100 years ago. Upon the expiry of the 99-year lease, the land, near Mililat Plantation, was passed to the Government; then it went to RD Tuna Company, which then transferred a portion of it to a business arm of Madang Provincial Government. Now this land is proposed to be the site of the PMIZ. The Kananam people still regard it as their land. They feel that they should be the ones who control what developments take place on it. They are being squeezed out of their own land and the land shortage is making it difficult to grow food crops.

13. The Kananam people are very concerned about the environmental impact of the PMIZ. They have seen the environmental damage caused by the operations of RD Tuna at Vidar and Siar. They have heard that if the PMIZ goes ahead ten new canneries will be built. This means the sort of environmental damage caused by RD Tuna will be multiplied. Last month an environmental impact study of the PMIZ was completed and this shows that it will have a big negative impact on the environment. The local people are particularly worried about the effect on marine resources.

14. Mr Gem testified that though it is his people at Kananam who are particularly worried about the land issues, their environmental concerns are shared, not only by people in villages in what is commonly called the "impact areas" – Kananam, Vidar and Riwo (a big village just to the south of Kananam) – but also by people living in villages right along the coastal areas of Madang Province. He said that forums have been held in a number of places, such as Kananam, Riwo and Josephstaal, to talk about the PMIZ, and people have come from places outside the impact area. They have come from Bogia (the north-west coast area of the province) and from Saidor (in the South Coast area) and from the Sumkar District and from the Transgogol area of the Madang District. Many people in coastal communities throughout the province are concerned about the environmental impact of the PMIZ. They are worried that all coastal areas might be adversely affected. They are also worried about what will happen if the Deep-Sea Tailings Placement System for the Ramu Nickel mine goes ahead at Basamuk. That is why he and others showed their support for the Basamuk people who recently took court proceedings to try to stop the DSTP going ahead.

15. Many people, especially those in the impact area, feel that the Government is forcing this project on them, when the local people don't want it. They are not being consulted and have not been invited to take part in the decisions being made by the government, Mr Gem said. In his affidavit he stated that there has been only one major public meeting on the PMIZ that has been organised by the Government (through the Department of Commerce and Industry). It was on 12 June 2009 but it was a terrible meeting as governmental officials and project people showed disrespect towards the local people and were just bulldozing the project, without answering questions from the public.

16. Mr Gem said that the first public forums about the PMIZ were held in 2008. These resulted in a public notice being published in the Post-Courier in December 2008 [annexure FG1 to exhibit A1]. There was a big forum, called "Madang People's Forum" at Kananam in April 2009. There was another Madang People's Forum at Josephstaal in August 2009. Others meetings were held at Riwo.

17. The concerns of the local people intensified after a groundbreaking ceremony at Vidar on 19 June 2009, at which the local people's protest signs and banners were torn down by the PMIZ project's security firm.

18. All forums and meetings have been attended by not only people in the impact area but by people from all over the province, particularly the coastal communities.

19. Elizabeth Gem's evidence was in similar terms. She is Francis Gem's wife, aged 28 years. She comes from Matugar village, Sumkar District. She did not attend the forum at Josephstaal but she attended the forum at Kananam and the meetings at Riwo. She testified that many people, particularly those from Kananam and Rempi and elsewhere in the Bel area of Madang District, are upset about the PMIZ because they think it will destroy their environment.

Consideration

20. Both Francis Gem and Elizabeth Gem were credible witnesses and there is no reason to doubt the veracity of their evidence, especially as there was no conflicting evidence before the court. I accept their evidence as being truthful and find that that the applicant has discharged the onus of proof regarding disputed fact No 1.

Findings

21. Disputed fact No 1 is correct: many people and communities throughout Madang have been frustrated and upset by the proposed Pacific Marine Industrial Zone (PMIZ) project. They have expressed this at meetings in and around Madang and at the Madang People's Forum.

22. In particular, I find that:

(a) The people who are most frustrated and upset are those living in what is commonly called "the impact area" of the PMIZ: especially in the villages of Kananam, Vidar and Riwo.

(b) Kananam villagers are very concerned about land issues. They feel that the PMIZ will be built on land they regard as theirs and that they are losing control over their own land.

(c) People in the impact area are very concerned about the environmental impact of the PMIZ, especially the negative effect on their marine resources.

(d) Those in the impact area are supported by many people in other coastal communities in the province, who share their frustrations and concerns.

(e) Those who are concerned about the PMIZ have become frustrated as no one in authority has shown a willingness to listen to their concerns in a meaningful way.

(f) In 2008 and 2009 at least two public forums were held at Kananam and Josephstaal and two meetings were held at Riwo, at which people from all districts in the province gathered to express their concern over the PMIZ and to plan a protest march in Madang town, so that they could draw attention to these issues.

DISPUTED FACT 2: MEETING AT JOSEPHSTAAL

Evidence

23. Francis Gem gave clear evidence about this meeting, which he called the second Madang People's Forum, which took place from 25 to 28 August 2009. He said that people came from all over the province to attend. Josephstaal is 100 km north-west of Madang, in the Middle Ramu District. It is 43 km from the coast. More than 1,000 people were present.

24. The forum was held in an open area of about one hectare. Temporary shelters were erected to protect people from the elements but there were not enough shelters for all of them.

25. It was at this forum that two decisions were made: to stage a protest march in Madang town against the PMIZ and to select him as chairman of the committee who would organise the march. He was not elected by a formal voting procedure or secret ballot but a resolution was reached that he should chair the committee.

Consideration

26. Francis Gem was a credible witness and there is no reason to doubt the veracity of his evidence, especially as there was no conflicting evidence before the court. I accept his evidence as truthful and find that the applicant has discharged the onus of proof regarding disputed fact No 2.

Findings

27. Disputed fact No 2 is correct: it was at a meeting of the Madang People's Forum at Josephstaal from 25 to 28 August 2009, which was attended by over 1,000 people, that the decision to stage a protest march was made. In particular:

(a) People came from other parts of the province, including from the coastal communities outside the impact area, to attend the forum.

(b) Francis Gem was selected by the forum to chair a committee who would organise the protest march.

DISPUTED FACT 3: SELECTION OF PERSONS TO MEET WITH LOCAL AUTHORITIES

Evidence

28. It is clear from Francis Gem's evidence that he was selected as the chairman of the committee that was to meet with local authorities and advise them of the intention to stage the protest. It is less clear where and when the decision to meet with the local authorities was made. In paragraph 9 of his affidavit Mr Gem states that the decision was made at the Forum at Josephstaal, whereas in his oral testimony he stated that, though the decision to select him as chairman of the organising committee was made at Josephstaal, there were subsequent meetings at Riwo where a strategy was agreed on to meet with the Governor, Sir Arnold Amet, and the Provincial Police Commander, Anthony Wagambie Jr. He and his committee were authorised to give notice of the protest to the Governor and the PPC and to get feedback from them before going ahead.

29. Elizabeth Gem's evidence was that important decisions about the protest march were made at Riwo (though it is to be noted that she was not present at the Josephstaal forum).

Consideration

30. As a rule of thumb, when a credible witness gives oral evidence that is not wholly consistent with an affidavit he has sworn some months prior to giving oral evidence, the oral evidence should be given more weight.

Findings

31. I take that approach here and find that disputed fact No 3 is generally correct, in that Francis Gem, in his capacity as Chairman of the Idawad Association and a member of the Madang People's Forum, and two others – Mathias Dum, Chairman of the Madang Lagoon Association and Tamlong Tabb, Vice-Chairman of the Madang Lagoon Association – were selected to contact and meet with local authorities to advise them of the planned protest march. However, I clarify that:

(a) The decision to select Messrs Gem, Dum and Tabb, to organise the protest march, was made at the forum at Josephstaal in August 2009.

(b) The decision for the organising committee to meet with the local authorities, being Governor, Sir Arnold Amet, and Provincial Police Commander, Anthony Wagambie Jr, regarding the protest march, was made at different meetings, which took place at Riwo, probably in September 2009.

SUMMARY OF STATEMENT OF FACTS

32. I find that the three facts described as "disputed facts" at page 37 of the application book are generally correct, subject to the clarification and qualifications noted herein.

Findings accordingly.

______________________________________________

Nonggorr William Lawyers: Lawyers for the Applicant