Application by Justice Foundation for Porgera Ltd [2022] PGSC 47; SC2235 (14 March 2022)

SC2235

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) 4 OF 2021

BETWEEN:
APPLICATION PURSUANT TO
CONSTITUTION, SECTION 18(1)

BY JUSTICE FOUNDATION FOR PORGERA LIMITED
Applicant

Waigani: Logan J
2022: 14^th March

PRACTICE & PROCEDURE – applications for leave to intervene in proceedings brought under s 18(1) of the Constitution – where applicants seeking to intervene have obvious interest in question raised in application – where applications to intervene not opposed – application for leave to intervene granted

PRACTICE & PROCEDURE – application for leave to intervene in proceedings brought under s 18(1) of the Constitution – where applicant an indigenous land group – where applicant does not have any interest in land subjection to controversy – where interest in proceeding no more than that of an interested bystander – where interest insufficient to justify leave to intervene – application for leave to intervene dismissed

Facts:

Justice Foundation for Porgera Limited (JFP) commenced proceedings under s 18(1) of the Constitution in relation to the extension of certain mining leases relating to Barrick (Nuigini) Limited, Lihir Gold Limited and Ok Tedi Mining Limited (collectively, the Mining Companies).

The Mining Companies, together with the Attorney General, sought leave to intervene in the proceedings. That application was not opposed by JFP.

An application to intervene was also made by Zufomu Land Group Incorporated, and its chairperson, Mr Guwi Ziriruk (collectively, the Indigenous Land Group). The Indigenous Land Group did not own or have any customary rights in respect of the any land subject to the mining leases in issue in the proceeding.

Held:

1. The Mining Companies and the Attorney General had an obvious interest in the questions raised by the application to intervene. The application to intervene was not opposed. The absence of opposition is relevant, especially when that reflects a considered position made by counsel in court.
2. A land group which does not own or have customary rights in respect to any land relating to the controversy at issue in the proceeding is no more than an interested bystander. An interested bystander has an insufficient interest to justify grant of leave to intervene in proceedings under s 18 of the Constitution.
   

Cases Cited:

Reference by Igo Namona Oala [2011] PGSC 30; SC1128

Legislation:

Constitution

Counsel:

Mr. N Yalo, for the Applicant
Mr. T Tanuvasa, for the First Intervener
Mr. M Varitimos QC with Mr. A Edo, for the Second Intervener
Mr. A Mana, for the Third Intervener
Mr. K Imako, for the Fourth Intervener
Mr. D Kaima, for the Proposed Intervener

Oral decision delivered on
14^th March 2022

Applications for leave to intervene by Barrick, Lihir and OK Tedi

1. LOGAN J: As to the applications for leave to intervene by Barrick (Nuigini) Limited (Barrick), Lihir Gold Limited (Lihir) and Ok Tedi Mining Limited (Ok Tedi), having regard to the application for review as made by Justice Foundation for Porgera Limited (JFP) and the several affidavits in support of the respective applications for leave to intervene and the observations made by Davani J in Reference by Igo Namona Oala [2011] PGSC 30; SC1128 at paragraph [49] , I am well satisfied that each of these applicants has an obvious interest in the questions raised by the application for review.
   
2. There is no opposition to the application for leave to intervene of these named companies or the Attorney General. An absence of opposition does not of course mean that an application for leave to intervene must be granted. Such an application nonetheless entails the exercise of judicial discretion. However, the absence of opposition is relevant, especially when that reflects a considered position made by counsel in court.
   
3. I therefore grant each of the companies or as the case may be, the Attorney General leave to intervene in the proceeding.
   
4. As to those intervention applications, in each instance costs will be costs in the cause. I further order that the time for the entry of this order be abridged to the time of settlement by the Registrar which will take place forthwith.
   

Application for leave to intervene by the Indigenous Land Group

5. Zufomu Land Group Incorporated, and its chairperson, Mr Guwi Ziriruk (collectively, the Indigenous Land Group) have also sought leave to intervene. That application is not opposed by JFP. However, on exploration with that entity’s counsel as to the reason for non-opposition, the reason rose no higher than a desire to preserve comity with the Indigenous Land Group.
   
6. The Indigenous Land Group is based in Wankuns Village in the Wempa Local Level Government Constituency of the Huon Gulf District of Morobe Province. The Indigenous Land Group has not been found either by a Local Land Court or a Provincial Land Court to own or have customary rights in respect of any of the land which was the subject of the mining lease and which remains the subject of controversy in relation to an extension thereof. The Indigenous Land Group may well have an interest in the way in which the Court comes to answer questions of law but that interest is no more or less than others who may come to assert ownership in particular customary land or rights in respect thereof. So the Indigenous Land Group is in that sense a bystander but an interested bystander.
   
7. That is not in my view a sufficient interest to warrant the exercise of the discretion to grant leave to intervene, broad though that may be. That particular basis of opposition was articulated both by Barrick and each of the other parties granted leave to intervene, the Attorney General included.
   
8. It is important on a review under s 18 of the Constitution that parties who are or may be directly affected by the Supreme Court’s judgment in respect of a review application have leave to intervene. But the interests of an interested bystander is not a direct interest. Accordingly, the application by the Indigenous Land Group is dismissed.
   

Costs

9. Application has been made by the parties granted leave to intervene who or which opposed the application by the Indigenous Land Group for leave to intervene for costs. The Indigenous Land Group seeks instead that there be no order as to costs.
   
10. I accept that, in relation to applications pursuant to s 18(1) of the Constitution where there exists a broad discretion as to whether or not to grant leave to intervene, it may not in all cases follow that costs should follow the event. It is possible to conceive of cases where the asserted interest is such that it is truly moot as to whether leave to intervene should be granted. Further some such review applications may be cast against the background of political controversy which may also intrude as to whether it is appropriate to make an order for costs in the event that an intervention application is not successful.
    
11. In this particular case however, it seems to me that the absence of a direct interest, as opposed to that of a bystander, was always stark. In those circumstances parties granted leave to intervene had a legitimate interest in opposing the widening of intervention so as to embrace a mere interested bystander. That necessarily entailed a degree of preparation to put forward that opposition. It may of course be that the costs entailed are relatively modest, given that appearances were necessary in any event to bespeak earlier respective applications for leave to intervene, which were successful. However that may be, that is a matter for the registrar as taxing officer.
    
12. In the circumstances of this particular case, my view is that the costs should follow the event in respect of the dismissal of the Indigenous Land Group’s application for leave to intervene. The orders therefore in respect of costs will be that the Zufomu Land Group Incorporated and its chairperson Mr Guwi Zuririk pay the costs of each intervener in respect of their application for leave to intervene. In other words the Zufomu Land Group and Mr Guwi Zuririk’s application to be taxed if not agreed.
13. It would not be appropriate to make any order in relation to the payment of costs in respect of the failed intervention application in favour of the JFP, given the stance which it took.
    

Orders

Applications to intervene by the Attorney-General, Barrick, Lihir and OK Tedi

1. The applications for leave to intervene in this proceeding by the following parties be granted:
   • (a) the Attorney-General – as 1^st respondent;
   • (b) Barrick – as 2^nd respondent;
   • (c) Lihir – as 3^rd respondent; and
   • (d) OK Tedi – as 4^th respondent.
2. Costs of and incidental to the applications by the parties named in order 1 be costs in the cause.

Application to intervene by Giu Ziriruk and the Zufomu Land Group Incorporated

3. The application for leave to intervene in this proceeding by the Indigenous Land Group be dismissed.
4. The Indigenous Land Group pay the costs of each intervener who has been granted leave to intervene in respect of the Indigenous Land Group’s application to intervene, such costs to be taxed if not agreed.

Orders for the further conduct of the proceeding

5. Pursuant to Order 4, Rule 25 of the Supreme Court Rules (Rules), the interveners who have been granted leave to intervene, file an appearance and a Statement of Response in Form 4A within 14 days of being granted leave to intervene.
6. Pursuant to Order 4, Rule 26 of the Rules, the applicant file and serve within 7 days of service of the Statement of Response a Reply.
7. The matter to be listed for mention and further directions on a date to be fixed by the Registry in consultation with the parties.
8. Mr M Varitimos QC be permitted to appear by video link when this proceeding next returns to Court, and for this purpose the proceeding be listed for hearing in Court Room No. 9. The Court IT Staff are to facilitate Mr Varitimos QC’s appearance.

Other matters

9. The extracts of argument handed up by counsel for the following parties at the hearing on 14 March 2022 be placed on the Court file:
   • (a) Barrick; and
   • (b) the Indigenous Land Group.
10. Time for entry of this order is abridged to the time of settlement by the Registrar which shall take place forthwith.

__________________________________________________________________
Nemo Yalo Lawyers: Lawyers for the Applicant
Office of the Solicitor-General: Lawyers for the First Intervener
Ashurst: Lawyers for the Second Intervener
Corrs Chambers Westgarth: Lawyers for the Third Intervener
Allens: Lawyer for the Fourth Intervener
StratServ Legal: Lawyers for the Proposed Intervener