Barrick (Niugini) Ltd v Nekitel [2020] PGSC 139; SC2052 (30 December 2020)

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STANLEY NEKITEL, IN HIS CAPACITY AS
REGISTRAR OF TENEMENTS
First Respondent

JERRY GARRY, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE MINING ADVISORY COUNCIL
Second Respondent

HONOURABLE JAMES MARAPE MP, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

HONOURABLE DAVIS STEVEN MP, ATTORNEY-GENERAL
AND NOMINAL DEFENDANT ON BEHALF OF THE HEAD OF STATE
Eighth Respondent

JUDGMENTS AND ORDERS – orders of Supreme Court for production of documents and affidavits explaining non-compliance with previous orders –enforcement of Supreme Court orders – Constitution, s 155(4) – compliance check.

On 17 December 2020 the Supreme Court upheld an application by the appellant for orders to be made to enforce orders of 6 October 2020, by which the Supreme Court had ordered the respondents to produce certain documents to the appellant. The Court made the orders on 17 December 2020 as the orders of 6 October 2020, which required production of documents by 13 October 2020, had not been complied with. The orders of 17 December 2020 were materially that: (2) each respondent or authorised officer shall make, file and serve by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to comply with the order of 6 October 2020; (3) each counsel for the respondents shall make, file and serve by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to inform their clients as to the need to comply with the orders of 6 October 2020; and (4) the respondents shall produce to the appellant’s lawyers by 4.00 pm on 17 December 2020 the documents required to be produced under the orders of 6 October 2020. The Court was convened on 23 December 2020 to check compliance with the orders of 17 December 2020.

Barrick (Niugini) Ltd v Nekitel (2020) N8429
Barrick (Niugini) Ltd v Nekitel (2020) SC2007
Barrick (Niugini) Ltd v Nekitel (2020) SC2010
Barrick (Niugini) Ltd v Nekitel (2020) SC2049

M M Varitimos, A Edo & L Evore, for the Appellant
N Saroa, for the First, Third and Fourth Respondents
T Tanuvasa, for the Second, Sixth and Eighth Respondents
L P Kandi, for the Fifth Respondent
G Geroro, for the Seventh Respondent

1. BY THE COURT: This is a ruling on a compliance check on previous orders of the Court.

2. On 17 December 2020 the Supreme Court upheld an application by the appellant for orders to be made to enforce its orders of 6 October 2020, for the respondents to produce certain documents to the appellant.

3. The Court made the orders on 17 December 2020, as the orders of 6 October 2020, which required production of documents by 13 October 2020, had not been complied with.

4. The judgment of the Court giving reasons for the orders of 6 October 2020 is reported as Barrick (Niugini) Ltd v Nekitel (2020) SC2010.

5. The judgment of the Court giving reasons for the orders of 17 December 2020 is reported as Barrick (Niugini) Ltd v Nekitel (2020) SC2049.

(2) Each respondent or an authorised officer on behalf of each respondent shall make, file and serve (by email if necessary), by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to comply with the order of 6 October 2020.

(3) Each counsel who has appeared for the respondents in these proceedings shall make, file and serve (by email if necessary), by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to inform their clients as to the need to comply with the order of 6 October 2020. And for the purposes of this order “each counsel” means:

(4) The respondents shall, if they have not already done so, produce to the appellant’s lawyers by 4.00 pm on 17 December 2020, the documents required to be produced under the order of 6 October 2020.

7. The orders of 6 October 2020, which the orders of 17 December 2020 were enforcing, were made when the Supreme Court upheld an appeal against the refusal of the National Court to order the respondents to provide discovery of documents to the appellant in judicial review proceedings commenced by the appellant in the National Court (Barrick (Niugini) Ltd v Nekitel (2020) N8429).

8. The order of the National Court was quashed and this Court decided under s 16 of the Supreme Court Act to exercise the powers of the National Court. This Court granted, by order No 3 of 6 October 2020, an order for discovery in the following terms:

The respondents shall make available to the appellant within seven days after this order the following documents, categorised as “granted” in the list of documents contained in the notice of motion filed 10 June 2020:

9. It was because of non-compliance with the orders of 6 October 2020, more than two months after the time for compliance passed, and unconvincing and feeble excuses given for non-compliance, that this Court made orders (2), (3) and (4) on 17 December 2020. We now check compliance with each of orders (2), (3) and (4), in turn.

ORDER 2: Each respondent or authorised officer shall make, file and serve by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to comply with the order of 6 October 2020

10. We assess the extent of compliance by each respondent in the following table.

Respondent	Extent of compliance
1^st – Stanley Nekitel, Registrar of Tenements	No affidavit by this respondent or any authorised officer on his behalf – the only affidavit with a conceivable connection to this respondent and the order of 17/12/20 is the affidavit of Sharon Haihavu, Acting Legal Manager, Mineral Resources Authority, filed 22/12/20, but the deponent does not state that she is authorised by the 1^st respondent and does not depose in detail the steps taken by the 1^st respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 1^st respondent.
2^nd – Jerry Garry, Chairman, Mining Advisory Council	No affidavit by this respondent or any authorised officer on his behalf – the only affidavit with a conceivable connection to this respondent and the order of 17/12/20 is the affidavit of Daniel Rolpagarea, State Solicitor, filed 22/12/20, but the deponent does not state that he is authorised by the 2^nd respondent and does not depose in detail the steps taken by the 2^nd respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 2^nd respondent.
3^rd – Mineral Resources Authority	No affidavit by any authorised officer on behalf of this respondent – the only affidavit with a conceivable connection to this respondent and the order of 17/12/20 is the affidavit of Sharon Haihavu, Acting Legal Manager, Mineral Resources Authority, filed 22/12/20, but the deponent does not state that she is authorised by the 3^rd respondent and does not depose in detail the steps taken by the 3^rd respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 3^rd respondent.
4^th – Hon Johnson Tuke MP, Minister for Mining	An affidavit by Motsy David, First Secretary to the Minister for Mining, includes the deposition that he is authorised to make the affidavit to respond to the order of 17/12/20 – the deponent deposes that he received the orders of 6/10/20 on 8/10/20 and “noted” the orders and that the documents to be provided pursuant to the orders are in the custody of the Mining Advisory Council – does not depose in detail the steps taken by the 4^th respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 4^th respondent.
5^th – Hon James Marape MP, Chairman, NEC	No affidavit by this respondent or any authorised officer on his behalf – the only affidavit with a conceivable connection to this respondent and the order of 17/12/20 is the affidavit of Isaac Lupari, Acting Chief Secretary to Government and Chairman of the State Negotiating Team on the Porgera Gold Mine, filed 22/12/20, but the deponent does not state that he is authorised by the 5^th respondent and does not depose in detail the steps taken by the 5^th respondent to comply with the orders of 6/10/20. It is noted that an affidavit by an officer who would have been appropriately authorised to give evidence on behalf of the 5^th respondent, viz Grace So-on, Secretary to the National Executive Council, was filed on 17/12/20, annexing certain documents in purported compliance with the orders of 6/10/20. However, in that affidavit the deponent does not mention the order of 17/12/20 and does not state that she is authorised by the 5^th respondent and does not depose in detail the steps taken by the 5^th respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 5^th respondent.
6^th – Independent State of Papua New Guinea	No affidavit by any authorised officer on behalf of this respondent – the only affidavit with a conceivable connection to this respondent and the order of 17/12/20 is the affidavit of Daniel Rolpagarea, State Solicitor, filed 22/12/20, but the deponent does not state that he is authorised by the 6^th respondent and does not depose in detail the steps taken by the 6^th respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 6^th respondent.
7^th – Mineral Resources Enga Ltd	An affidavit by Richard Aupae, Company Secretary, Mineral Resources Enga Ltd sufficiently shows that he is authorised to make the affidavit to respond to the order of 17/12/20 – the deponent states that Mineral Resources Enga Ltd does not have and has never had control, custody or possession of any of the documents the subject of the orders of 6/10/20. Although, as argued by the appellant, it seems difficult to accept that, given one of the company directors is the Governor of Enga Province, Hon Chief Sir Peter Ipatas MP, Mineral Resources Enga Ltd would not have control of some of the documents the subject of the orders of 6/10/20 (such as the report of Enga Provincial Government), we accept, for present purposes, with reservations, the sworn testimony of Mr Aupae. Conclusion: order of 17/12/20 complied with by 7^th respondent.
8^th – Hon Davis Steven MP, Attorney-General	No affidavit by any authorised officer on behalf of this respondent – the only affidavit with a conceivable connection to this respondent and the order of 17/12/20 is the affidavit of Daniel Rolpagarea, State Solicitor, filed 22/12/20, but the deponent does not state that he is authorised by the 8^th respondent and does not depose in detail the steps taken by the 8^th respondent to comply with the orders of 6/10/20. Conclusion: order of 17/12/20 not complied with by 8^th respondent.

11. In summary, apart from the seventh respondent, order 2 of 17 December 2020 has not been complied with by the respondents.

ORDER 3: each counsel for the respondents shall make, file and serve by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to inform their clients as to the need to comply with the order of 6 October 2020

13. In summary, order 3 of 17 December 2020 has been complied with by the respondents’ counsel.

ORDER 4: The respondents shall produce to the appellant’s lawyers by 4.00 pm on 17 December 2020 the documents required to be produced under the order of 6 October 2020

14. We assess the extent of compliance with order 4 of 17 December 2020 by assessing the extent to which the documents the subject of orders 3(a), (b), (c), (d), (e), (i) and (k) of 6 October 2020 were produced to the appellant’s lawyers on 17 December 2020, in the following table.

Order of 6 October 2020	Extent of compliance
3(a) the report in writing made by the Registrar to the Mining Advisory Council pursuant to s 103(b)(iii) of the Mining Act	The affidavit of Sharon Haihavu, Acting Legal Manager, filed 16 December 2020, annexes, as “C”, an inter-office memo from Stanley Nekitel, the Registrar of Tenements, to Jerry Garry, Chairman, Mining Advisory Council, dated 27/1/20, purporting to be a report under s 103(3)(iii) of the Mining Act to the Mining Advisory Council of the registration of the appellant’s application for extension of its mining tenement regarding the Porgera Gold Mine. The appellant contends that annexure C is not a report of the type required by s 103(b)(iii). However, that contention is unproven. It seems that the Registrar is only required to report in writing to the Council that an application for extension of a tenement has been lodged, accepted and registered, and is not required to prepare a detailed report for the Council, at that stage. Annexure C appears to pass muster, albeit belatedly. Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(a) of 6/10/20, has been complied with.
3(b) each report provided to the Mining Advisory Council pursuant to s 104 of the Act	The affidavit of Sharon Haihavu, Acting Legal Manager, filed 16 December 2020, annexes, as “A”, a technical assessment report on Porgera Special Mining Lease 1(P) Extension Application, prepared by the Technical Assessment Branch, Mineral Resources Authority, purporting to be a report under s 104 of the Mining Act to the Mining Advisory Council regarding the appellant’s application for extension of its mining tenement regarding the Porgera Gold Mine. The report is in 57 pages plus seven annexures. The appellant contends that the respondents have not disclosed whether there are other reports prepared by other officers and that there are some annexures that are incomplete. We agree that Ms Haihavu’s affidavit ought to have stated clearly what documents were being produced by cross-referring to the orders of 6/10/20 and ought to have more clearly stated whether there were any other reports besides the technical assessment report prepared for the purposes of s 104. However, the technical assessment report appears to be a substantial document and it is reasonably to be inferred that it is the only report given to the Mining Advisory Council under s 104. The appellant’s contention as to incomplete annexures is unproven. Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(b) of 6/10/20, has been complied with.
3(c) the written report prepared by the Warden pursuant to s 109 of the Act in respect of the extension application	The affidavit of Sharon Haihavu, Acting Legal Manager, filed 16 December 2020, annexes, as “B”, the Mining Warden’s written report pursuant to s 109 of the Mining Act. Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(c) of 6/10/20, has been complied with.
3(d) all reports submitted to the Mining Advisory Council pursuant to s 110 of the Act, including any report submitted by a provincial government under s 110(1)	The affidavit of Sharon Haihavu, Acting Legal Manager, filed 16 December 2020, annexes, as “A”, a technical assessment report on Porgera Special Mining Lease 1(P) Extension Application, prepared by the Technical Assessment Branch, Mineral Resources Authority, which contains as annexure 7 a position paper by Enga Provincial Government in relation to an application to extend Special Mining Lease 1 (P) (Porgera Gold Mine), pursuant to s 110(1) of the Mining Act. Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(d) of 6/10/20, has been complied with.
3(e) the recommendation made by the Mining Advisory Council pursuant to s 110(4)(b) of the Act	The affidavit of Sharon Haihavu, Acting Legal Manager, filed 16 December 2020, annexes, as “D”, a letter dated 6 March 2020 from Jerry Garry, Chairman, Mining Advisory Council, to Hon Johnson Tuke MP, Minister for Mining, conveying the recommendation of the Mining Advisory Council regarding the extension application by the appellant, which was to refuse the 20-year extension application by the appellant and to grant an extension of one year with appropriate conditions to be imposed to address legacy and non-compliance issues. The appellant points out that at the end of the letter Mr Garry states “We attach herewith the minutes and recommendation of the Special MAC Meeting No 1 of 2020 for your perusal”. However, no such attachments have been produced. The appellant contends that this amounts to non-compliance with the order of 17/12/20 and order 3(e) of 6/10/20. The respondents counter the appellant’s contention by pointing out that minutes of meetings of the Mineral Resources Authority were amongst the categories of documents to which the appellant was refused access under order 3(f) of 6/10/20, and that no separate recommendation of the Mining Advisory Council exists. We agree with the respondents’ contentions. It is not clear from the concluding statement in Mr Garry’s letter that there is a separate instrument of recommendation. If there is a separate instrument it is unlikely to differ from the recommendation in the letter of recommendation to the Minister. Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(e) of 6/10/20, has been complied with.
3(i) submissions to the National Executive Council in respect of the extension application	The affidavit of Grace So-On, Secretary to the National Executive Council, filed 17 December 2020, annexes, as “B”, a policy submission by Hon Johnson Tuke MP, Minister for Mining, headed “Mining Advisory Council Recommendations on the Porgera Gold Mine Project SML 1(P) Extension Application”. The appellant indicates that it is not clear whether other submissions were made to the NEC in respect of the extension application. We consider that it is to be reasonably inferred from the terms of NEC Decision No 82/2020, which is based on the Minister’s policy submission, that there were no other policy submissions. Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(i) of 6/10/20, has been complied with.
3(k) any advice provided to the Governor-General in respect of the extension application (“NEC advice”)	The affidavit of Grace So-On, Secretary to the National Executive Council, filed 17 December 2020, annexes, as “A”, NEC Decision No 82/2020, headed “Mining Advisory Council Recommendations on the Porgera Gold Mine Project SML 1(P) Extension Application”, which amongst other things “approved to: (i) refuse the grant of the extension application of SML 1(P) sought by the applicants for the 20 years; and (ii) enter into a transitional Mine Management Arrangement with the applicant for a specific period (to be negotiated)”. The appellant contends that the NEC decision cannot be the advice provided to the Governor-General, as the Governor-General’s decision was not in accordance with the NEC decision. It is therefore contended that the order of 17/12/20 in regard to order 3(k) of 6/10/20, has not been complied with. The respondents assert that there is not necessarily any separate advice from the NEC to the Governor-General and that the NEC decision suffices. We note that in Ms So-On’s affidavit she deposes that the documents she annexes to her affidavit are in response to the order of 6/10/20 requiring production of submissions to the NEC and any advice provided to the Governor-General. She does not expressly state, as she ought to have done, that she is not in possession or control of any separate instrument of advice and has no knowledge of any such advice. However, she is implying that she is not in possession or control of any separate instrument of advice and has no knowledge of any such advice. As peculiar as that state of affairs seems to be (we take judicial notice of the usual practice being that an instrument of advice to the Governor-General, separate from the NEC decision that gives rise to the advice, would be conveyed to the Office of the Governor-General, prior to the making of any decision under a statute by the Governor-General), that is our interpretation of Ms So-On’s affidavit. That leaves open the question of how and in what circumstances the Governor-General came to make a decision published in National Gazette No G229 on 27 April 2020 that failed to conform with the NEC decision (see Barrick (Niugini) Ltd v Nekitel (2020) SC2007). Conclusion: order 4 of 17/12/20, to the extent it relates to order 3(k) of 6/10/20, has been complied with.

15. In summary, order 4 of 17 December 2020 has been complied with by the respondents.

16. Order 2 of 17 December 2020 was, apart from the seventh respondent, not complied with. Orders 3 and 4 of 17 December 2020 were complied with.

17. The conduct of the respondents and their counsel in these proceedings has been disappointing. We remind all counsel that they are officers of this Court and they have solemn obligations as officers of this Court to assist this Court in the due administration of justice. They must advise their clients of the need for all persons to comply with clear and unambiguous orders of this Court, including and especially in the case of orders that they might consider to have been wrongly made.

18. The compliance check hearing on 23 December 2020 was only necessary because the orders of 6 October 2020 had not been complied with. Costs will be payable to the appellant on a solicitor-client basis.

19. Any further action regarding these proceedings, SCM 13 of 2020, including any further applications to enforce the orders of 6 October 2020, 17 December 2020 or today and extending to any motions or applications regarding contempt of court, must be taken by commencement of fresh proceedings.

20. The following order is made by the Court pursuant to s 155(4) of the Constitution in the exercise of its inherent power to make in circumstances as seem to it to be proper, such orders as are necessary to do justice in the circumstances of this particular case:

__________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant
Nelson Lawyers: Lawyers for the First, Third & Fourth Respondents
Solicitor-General: Lawyer for the Second, Sixth & Eight Respondents
MS Wagambie Lawyers: Lawyers for the Fifth Respondent
Geroro Lawyers: Lawyers for the Seventh Respondent

Counsel	Extent of compliance
Mr N Saroa for the first, third and fourth respondents	Affidavit of Nelson Saroa, filed 22/12/20, satisfactorily discloses steps taken to inform first, third and fourth respondents as to the need to comply with the orders of 6/10/20 but fails to provide sufficient explanation for his clients’ non-compliance with orders of 6/10/20. Conclusion: order of 17/12/20 complied with by Mr N Saroa.
Mr T Tanuvasa for the second, sixth and eighth respondents	Affidavit of Tauvasa Tanuvasa, filed 22/12/20, satisfactorily discloses steps taken to inform second, sixth and eighth respondents as to the need to comply with the order of 6/10/20 but fails to provide sufficient explanation for his clients’ non-compliance with orders of 6/10/20. Conclusion: order of 17/12/20 complied with by Mr T Tanuvasa.
Mr L P Kandi for the fifth respondent	Affidavit of Laias Paul Kandi, filed 22/12/20, satisfactorily discloses steps taken to inform fifth respondent as to the need to comply with the orders of 6/10/20 but fails to provide sufficient explanation for his client’s non-compliance with orders of 6/10/20. Conclusion: order of 17/12/20 complied with by Mr L P Kandi.
Mr G Geroro for the seventh respondent	Affidavit of Gibson Geroro, filed 22/12/20, satisfactorily discloses steps taken to inform seventh respondent as to the need to comply with the orders of 6/10/20 and provides sufficient explanation for his client’s alleged non-compliance with orders of 6/10/20. Conclusion: order of 17/12/20 complied with by Mr G Geroro.

Supreme Court of Papua New Guinea

Barrick (Niugini) Ltd v Nekitel [2020] PGSC 139; SC2052 (30 December 2020)