Turaha v Pok [2023] PGSC 93; SC2433 (11 August 2023)

SC2433

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 44 OF 2021

JOSHUA TURAHA & BUSUNAE POSOU of Isaweri Bupuku Gohu Sub-clan of Isaweri Clan
First Appellants

PAUL SAPAKE & JASON TIRIME of Toale Hongiri Sub-clan of Imawe Bogasi Stock Clan
Second Appellants

YAKS YAKORIA of Tiasapi Sub-clan of Imawe Bogasi Stock Clan
Third Appellant

-V-

HON. DR FABIAN POK, MP – Minister for Petroleum
First Respondent

KEPSY K PUIYE, Acting Secretary for Department of Petroleum
Second Respondent

DAIRI VELE, Secretary for Department of Treasury
Third Respondent

INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

WOLOTOU INCORPORATED LAND GROUP
Fifth Respondent

Waigani: Kariko, Murray & Dowa JJ
2022: 24^th November
2023: 11^th August

JUDICIAL REVIEW – appeal against refusal of applications for judicial review - ministerial determination - entitlement to royalties and equity grants payable under the Oil & Gas Act 1998 – claim that determination was ultra vires the Act – reliance on gazettal notice itself to rebut claim – matters for consideration in making determination, s 169(2) & (4) of the Act – whether properly considered

Two related applications for judicial review were filed separately in the National Court by different parties which challenged the validity of a ministerial determination purportedly made pursuant to ss 169 & 170 of the Oil & Gas Act 1998. Both applications were heard together and were both dismissed. The applicants appealed the decisions arguing, among others, that the determination was made contrary to the Act and was therefore ultra vires.

Held:

1. In making a determination under s 169(2) of the Oil & Gas Act 1998 as to the identification of landowners who are properly entitled to equity and royalty benefits under ss 167 and 168 of the Act, the Minister is obliged to consider a number of matters set out in s 169(4).
2. The Minister failed to consider some of the matters listed in s 169(4), including several court decisions on ownership of land the subject of the determination.
3. The trial judge erred in finding the Minister fully complied with the requirements of s 169 of the Oil & Gas Act 1998.
4. Appeal upheld.
   

Cases Cited:

Soso Tumu for Luhalipu Clan & Ors v The State & Ors [2002] PNGLR 250
Toale Hongiri Incorporated Land Group & Ors v Wolutou Incorporated Land Group & Ors (2016) SC2081
Turaha v Pok (2021) N8995
Wolutou Incorported Land Group v Manau (2021) N8788

Legislation:

Oil & Gas Act 1998
Supreme Court Act

Counsel:

Mr J Haiara, for the Appellants
Mr W Upeke (with leave), for the Fifth Respondent
No appearances for the other Respondents

APPEAL

This is an appeal against the dismissal of applications for judicial review.

11^th August, 2023

1. BY THE COURT: On 4 August 2021, the National Court at Waigani dismissed two related judicial review proceedings that were heard together, one referenced OS (JR) No. 421 of 2018 and the other OS (JR) No. 418 of 2018. The decision has been published as Turaha v Pok (2021) N8995.
   
2. The plaintiffs in the National Court have appealed the decision.
   
3. The first appellants were plaintiffs in OS (JR) No. 418 of 2018 while the second and third appellants were the plaintiffs in OS (JR) No. 421 of 2018.
   
4. The respondents in this appeal were parties in those proceedings. In this judgment, we refer to the first four respondents collectively as the State. The fifth respondent is an incorporated landowner group which also lays claim to the land the subject of the dispute underlying this appeal.
   

NATIONAL COURT PROCEEDINGS

5. The proceedings in the National Court concerned applications for judicial review of a Ministerial Determination made on 30 May 2018 by the first respondent, the Minister for Petroleum & Energy (the Ministerial Determination), purportedly pursuant to s 169 and s 170 of the Oil & Gas Act 1998 (the O&G Act).
   
6. The Ministerial Determination which was published in the National Gazette No. G362 dated 4 June 2018 (Gazette G362), named the customary landowner beneficiaries and their respective shares to the royalties and equity grants payable under the O&G Act (the Benefits) in respect to the customary land impacted by the PNG LNG Project Pipeline License 4 Segment 6 (Segment 6).
   
7. The first appellants filed proceedings OS (JR) No. 418 of 2018 seeking judicial review of the Ministerial Determination, while the second and third appellants filed a similar application referenced OS (JR) No. 421 of 2018.
   
8. It was basically alleged in both proceedings that the Ministerial Determination was made contrary to the O&G Act and thereby the Minister acted ultra vires the Act.
   
9. The appellants therefore sought declarations that the Ministerial Determination was null and void.
   

EVIDENCE IN THE NATIONAL COURT

10. The appellants, then the plaintiffs, presented the only evidence in the National Court.
    
11. In proceedings OS (JR) No. 418 of 2018, the first appellants relied on the following filed evidence:
    
    • (1) Affidavit of Joshua Turaha sworn 27 July 2018
    • (2) Affidavit of Busunae Posou sworn 26 July 2018
    • (3) Supplementary affidavit of Joshua Turaha sworn 11 0ctober 2018.
      
12. The case for the second and third appellants in proceedings OS (JR) No. 421 of 2018, rested on the:
    
    • (1) Affidavit of Paul Sapake sworn 6 November 2018
    • (2) Affidavit of Jason Tirime sworn 30 October 2018
    • (3) Affidavit of Jason Tirime sworn 17 July 2019
    • (4) Affidavit of Paul Sapake sworn 27 February 2019
    • (5) Affidavit of Yaksie Yakoria sworn 27 February 2019.
      
13. We summarize the evidence of each witness.
    

Joshua Turaha

• He is the Chairman and the leader of Isaweri Bupuku, one of the two sub-clans of the Isaweri stock clan. The other sub-clan is Isaweri Makof.
  
• The Ministerial Determination wrongly named the Isaweri Makof sub-clan only when the Isaweri clan should have been named.
  
• On 29 February 1996, Salika J sitting as a Special Land Titles Commission (SLTC) in respect of disputes over customary land affected by the Gobe petroleum project (Gobe project), made several determinations. One of them was a finding that the Isaweri clan own the land known as Koro Maiyu-Kaironsiteiyu which forms part of Segment 6.
  
• Upon application, a three-member Land Titles Commission (the Kanawi Commission) conducted a review of the determination by the SLTC and on 19 May 2000 overturned the SLTC’s determination regarding land owned by another clan, Imawe Bogasi. That decision was then appealed to the National Court.
  
• Sheehan J heard the appeal and held that the Kanawi Commission had acted without jurisdiction and was tainted with bias and referred the review back to the Land Titles Commission (the LTC) for a new tribunal to hear.
  
• The LTC is yet to hear the review.
  
• On 17 February 2001, the Isaweri Bupuku and the Isaweri Makof executed a Memorandum of Agreement (MOA) in which the sub-clans acknowledged that they both made up the Isaweri stock clan, and that members of both sub-clans would abide by the SLTC decision and share any monetary benefits from the pipeline projects that impacted their land.
  
• Consent orders were entered into by certain clans regarding the dispute over land ownerships in National Court proceedings WS No. 1177 of 2007. The consent orders were appealed against in SCA No. 101 of 2011 and on 26 September 2016, the Supreme Court in upholding the appeal ordered that “those disputes over the Gobe Lands be returned to the Land Titles Commission for resolution unless the Head of State declares otherwise”.
  
• On 28 November 2017, the leaders of both sub-clans signed the Clan Consent Form during the clan vetting process conducted by the Department of Petroleum. They signed for and on behalf of the Isaweri Clan. The Form was provided by the Department of Petroleum under the O&G Act and stated that it was to be signed by each clan having land ownership rights in Segment 6.
  
• Despite the SLTC determination, the MOA, and the Clan Consent Form, all which the Department of Petroleum was aware of, the Department failed to recognize the Isaweri Bupuku sub-clan as a beneficiary, as reflected in the Ministerial Determination.
  
• The Minister also failed to recognize the court decisions of Sheehan J and the Supreme Court in issuing the Ministerial Determination.
  

Busunae Posou

• He is also a leader of the Isaweri Bupuku sub-clan of the Isaweri clan.
  
• The Isaweri stock clan consists of the Isaweri Bupuku and the Isaweri Makof sub-clans.
  
• On 28 November 2017, the leaders of both sub-clans signed the Clan Consent Form during the clan vetting process conducted by the Department of Petroleum.
  
• The Ministerial Determination wrongly and mistakenly named the Isaweri Makof sub-clan instead of the Isaweri stock clan.
  

Paul Sapake

• He is the Chairman of the Toale Hongiri ILG and leader of the Imawe Bogasi stock clan.
  
• Imawe Bogasi has nine sub-clans, including Toale Hongiri and Wolotou. Each sub-clan is represented by an ILG.
  
• The SLTC (Salika J) found that a significant area of the disputed lands impacted by the Gobe project is owned by the Imawe Bogasi stock clan. His Honour’s findings were reviewed and set aside by the Kanawi Commission, but its decision was in turn set aside on appeal by Sheehan J on 4 December 2000. His Honour further ordered that the review be reheard by the LTC.
  
• The LTC is yet to rehear the review.
  
• Wolotou ILG filed proceedings WS No. 1177 of 2007 claiming ownership of all customary land impacted by the Gobe project. The dispute was ordered to go to mediation and consequently settled by purported consent orders. An appeal (SCA No. 101 of 2011) was lodged in the Supreme Court against this outcome. The appeal was upheld by the Supreme Court on 26 September 2016 whereby the consent orders were quashed, and the land disputes were ordered to return to the LTC “for resolution unless the Head of State declares otherwise”.
  
• A month after the Supreme Court decision, it was learnt that Wolotou ILG had obtained a Special Agricultural and Business Lease (SABL) in 2011 that covered land claimed by the Imawe Bogasi clan.
  
• Toale Hongiri ILG filed proceedings OS(JR) No. 778 of 2016 in the National Court against Wolotou ILG, challenging the issue of the SABL. The proceedings were dismissed mainly because the parties were then not duly registered ILGs and therefore lacked standing.
  
• Imawe Bogasi owns by far the largest area of customary land in Segment 6 and receives the largest share of the benefits from the parallel Kutubu Petroleum Project, but the Ministerial Determination does not reflect this. Furthermore, the Determination wrongly included the Afu clan and omitted the Isaweri Bupuku.
  
• The Minister, the Department and the State have not explained how the Ministerial Determination was decided, particularly regarding the identification of the clans and their share of the benefits.
  

Jason Tirime

• He is the Treasurer of the Toale Hongiri ILG and a leader of the Imawe Bogasi stock clan.
  
• The Imawe Bogasi clan owns the largest share of the customary land impacted by Segment 6.
  
• The Ministerial Determination:
  
  • (1) failed to consider existing benefit sharing arrangements in respect of the Kutubu Petroleum Project pipeline which runs parallel to the PNG LNG Project pipeline with respect to land also covered by Segment 6;
  • (2) was issued after the PNG LNG Project commenced operations, contrary to s 169 of the O&G Act;
  • (3) failed to consider the fact that disputes over ownership of customary land including Segment 6 were pending review by the LTC of the SLTC findings.
    

Yaksie Yakoria

• He is the Chairman of the Tisapi ILG, representing the Tisapi sub-clan of the Imawe Bogasi stock clan.
  
• The State (and its functionalities named as defendants) are in contempt of the decision of the Supreme Court in proceedings SCA No. 111 of 2006, for not arranging for the LTC to review the land disputes.
  

PAYMENT OF BENEFITS

14. Under s 48 of the O&G Act, a development forum shall be convened by the Minister before the first grant of a licence or licences in respect of a petroleum project.
    
15. The Benefits which are payable to the project area landowners include an equity benefit (s 167) and royalty benefit (s 168).
    
16. The process and procedure for identifying the landowners who are to gain from the benefits is set out in s 169 of the O&G Act. This provision relevantly provides (with emphasis added):
    

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

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

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

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

(3) .....................

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

(5) ....................

(6) ....................

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

(8) .....................

(9) ....................

(10) .....................

17. Under s 170, the Benefits may be shared by the affected customary landowners in proportions:
    
    • agreed between them in a development agreement, or
    • in default, in accordance with a determination by the Minister.
      
18. The Ministerial Determination stated:
    

PNG LNG PROJECT PIPELINE LICENSE FOUR (PL No. 4) SEGMENT SIX (6) LANDOWNER BENEFICIARY IDENTIFICATION (LOBID) AND BENEFIT SHARING AGREEMENT

I, the Minister for Petroleum, Hon. Dr. Fabian Pok, MEc PhD. MP. by virtue of Sections 169 and 170 of the Oil and Gas Act 1998 (as amended) and all other powers enabling me hereby make the following Determinations on the sharing of 15.53% of the 28% apportioned for the PNG LNG Pipeline License Four (PL 4) Segment six (6) impacted beneficiary clans including the Buffer zone which are entitle to receive Royalty and Equity.

Having received and considered results of social mapping and landowner identification studies carried out under section 47 of the Oil & Gas Act 1998 (as amended). PNG LNG LOB-ID vetting reports signed intra clan benefit sharing consent forms from the project area. PNG LNG Project Umbrella Benefit Sharing Agreement Act 1998 (as amended) make the following Determination:

1. Appearing in Schedule 1 are the beneficiary clans identified and verified within PNG LNG Project Pipeline License Four (PL 4) segment six (6) including the pipeline buffer zone under which the beneficiary clans are entitled to royalty ad equity benefits as agreed under the pipeline LBBSA shared in percentage splits as appearing on this Determination.

_______________
SCHEDULE
_______________

Determination on PNG LNG Project Pipeline License 4 (PL 4) Segment Six (6) including the buffer zone along the Pipeline Right of Way as beneficiary clans sharing their 15.53% (converted to 100%) as agreed in the Pipeline LBBSA.

No	BENEFICIARY CLAN	% split	No	BENEFICIARY CLAN	% split
1 2 3 4 5	IMAWE BOGASI IMAWE KEWA YESIK MUSONERI WAFI	12.2 11.2 11.2 11.2 11.2	6 7 8 9	AFU ISAWERI MAKOF MUKURD DIPAN MAKENA	11.2 11.2 13.6 7.0

This Determination supersedes all other Determinations and takes effect immediately.

Dated this 30^th day of May, 2018.

Hon. Dr. F. POK, MEc, PhD. MP. K. Puiye,
Minister for Petroleum Director – Oil & Gas Act

D. VELE,

Secretary - Treasury

SUBMISSIONS IN THE NATIONAL COURT

19. The appellants submitted in the National Court that the Minister contravened s 169(2) of the O&G Act which states that a ministerial determination shall be made before or during the development forum, and that was conducted and concluded in November 2009.
    
20. The appellants also contended that in regard to the matters set out in s 169 (4) of the O&G Act which the Minister is obliged to consider in making a determination under s 169(2):
    
    • there was no evidence that the Minister had before him all those materials or considered those matters.
    • the Minister did not give proper weight to the submissions by the appellants,
    • the Minister failed to give due regard to the decisions of the SLTC, and other relevant and related court proceedings.
      
21. The appellants further asserted that the Minster should have exercised his powers under s 169(7) of the O&G Act which provides that the Minister may direct that the Benefits are kept in trust where there is a dispute as to who are the rightful beneficiaries.
    
22. In presenting the foregoing arguments, the appellants stressed that both the National Court and the Supreme Court have determined that customary ownership of the disputed land required resolution by the LTC.
    
23. The plaintiff urged the trial judge to note that Cannings J had recently on 6 April in a related proceeding OS (JR) No. 85 of 2020: Wolutou ILG v Manau, which dealt with a dispute that basically involved the same parties as in the present action, ordered that the LTC resolve the question of customary land ownership, and that the State take necessary steps to facilitate the outstanding hearing.
    
24. In reply, the State argued that:
    
    • (1) the Minister was entitled to make the determination under s 169 notwithstanding that the issue of land ownership was in dispute and that pending resolution of the dispute, the monies would be held in trust.
      
    • (2) The plaintiffs were not excluded by the Ministerial Determination landowner beneficiaries.
      

JUDGMENT OF THE NATIONAL COURT

25. After considering the evidence and submissions, the trial judge ordered the dismissal of both proceedings OS (JR) No. 421 of 2018 and OS (JR) No. 418 of 2018 with costs.
    
26. His Honour found that the Ministerial Determination was properly made according to law because the relevant gazettal notice stated the Minister had acted under s 169 and s 170 of the O&G Act in issuing the determination: [16] of the judgment.
    
27. His Honour also held that if there is any dispute among the landowner beneficiaries identified by the Ministerial Determination, the benefits will be held in abeyance in trust under s 169(7) of the O&G Act pending resolution of the dispute, and therefore the appellants were not prejudiced: [18]-[19] of the judgment.
    

APPEAL

28. The appellants contend that the trial judge erred in fact and in law in not finding that the Ministerial Determination was ultra vires the O&G Act and therefore invalid, for these reasons:
    
    • (1) It was made nine (9) years after the relevant development forum, when s 169(2) of the O&G Act provides for the Minister to make a determination during the development forum for the project.
    • (2) There was no or insufficient evidence that all the matters that the Minister is required to consider under s 169(4) before making a determination were in fact considered.
    • (3) There exists a dispute as to rightful customary landowners to the land affected by the Gobe Oil project, that includes Segment 6, which dispute is pending determination by the Land Titles Commission.
      
29. The appellants have asked this court to:
    
    • uphold the appeal,
    • quash the National Court orders,
    • find for them and grant the relief sought in the judicial reviews, and
    • award them the costs of this appeal and the National court proceedings.
      

CONSIDERATION

30. We view it appropriate to first determine the appellant’s claim that the Minister did not properly consider the outcomes of several court decisions that relate to the issue of who the proper customary landowners are of the Gobe project area.
    
31. Those decisions are significant because they have direct bearing on the underlying issue in the judicial review proceedings and this appeal, namely who are the correct landowners entitled to the benefits under ss 167 and 168 of the O&G Act.
    
32. One of the matters set out in s 169(4) of the O&G Act which the Minister shall consider in making a declaration under s 169(2) is “the decisions of courts of Papua New Guinea as to ownership of land or rights in relation to land in the vicinity of the petroleum project in question”.
    
33. A history of the disputes between various clans and landowner groups over land impacted by the Gobe project are fully discussed in the cases of Soso Tumu for Luhalipu Clan & Ors v The State & Ors [2002] PNGLR 250 per Kandakasi J, Toale Hongiri Incorporated Land Group & Ors v Wolutou Incorporated Land Group & Ors (2016) SC2081 per Sawong, Toliken & Higgins JJ, and Wolutou Incorported Land Group v Manau (2021) N8788 per Cannings J.
    
34. We set out a summary of the history, highlighting relevant litigation:
    
    • The Special Land Titles Commission (the SLTC) comprising Salika J on 29 February 1996 determined customary ownership of land affected by the Gobe petroleum project.
      
    • A review of the SLTC’s determination was sought by aggrieved landowners and this was heard by a three-members Land Titles Commission (the LTC) headed by the Chairperson Josepha Kanawi. The LTC upheld the review on 19 May 2000.
      
    • An appeal was lodged against the decision of the LTC which was heard by the National Court (Sheehan J) who on 4 December 2000 upheld the appeal and ordered the review be reheard by the LTC comprising different members.
      
    • Certain clans filed proceedings OS No. 532of 2000 in the National Court, seeking declarations that they be identified as the “Gobe Project Area Landowners”. Kandakasi J heard the case and on 28 February 2002 decided, among others that “any ownership dispute over such land has the effect of preventing the distribution of such grants until the dispute has been resolved either by agreement of the parties or as may be determined by the LTC [Land Titles Commission] or the LLC [Local Land Court] as the case may be.”
      
    • One of the affected landowner groups, Wolotou ILG, filed proceedings WS No. 1177 of 2007 on 17 October 2007 claiming ownership of all customary land impacted by the Gobe project. The dispute was ordered to go to mediation and it was purportedly settled by consent orders endorsed on 24 August 2012.
      
    • Dissatisfied landowner groups filed an appeal (SCA No. 101 of 2011) against the consent orders. The Supreme Court (Sawong, Toliken and Higgins JJ) upheld the appeal on 27 September 2016, set aside the consent orders and dismissed proceedings WS No. 1177 of 2007 for want of jurisdiction. Noting that the fresh review ordered by Sheehan J in 2000 had never been held, the Supreme Court ordered that “those disputes over the Gobe Lands be returned to the Land Titles Commission for resolution unless the Head of State declares otherwise”.
      
    • A month after the Supreme Court decision, it was learnt that Wolotou ILG had obtained a Special Agricultural and Business Lease (SABL) in 2011 that affected land claimed by the Imawe Bogasi clan. This prompted Toale Hongiri ILG to file proceedings OS(JR) No. 778 of 2016 on 11 November 2016 challenging the issue of the SABL but the proceedings were dismissed a month later because parties were not duly registered ILGs and therefore lacked standing.
      
    • Wolotou ILG later filed proceedings OS No. 85 of 2020 seeking a declaration that it was lawfully registered as owner of the SABL, and it was entitled to the bulk of the Benefits due in respect of the disputed land. Competing land groups filed cross-claims asserting their entitlement to the Benefits.
      
    • On 6 April 2021, Cannings J dismissed the claims relating to ownership of the disputed lands, and ordered that the State “shall take all steps necessary to resolve the question of customary ownership of the land in the adjudication area of the Salika Special Land Titles Commission regarding the Gobe oilfields in Gulf and Southern Highlands Provinces, in accordance with order 4 of the Supreme Court of 27 September 2016 in Toale Hongiri Incorporated Land Group & Ors v Wolutou Incorporated Land Group & Ors (2006) SC2081”.
      
    • His Honour also affirmed that the payment of the Benefits – the monetary benefits due to customary landowners under ss 167 and 168 of the O&G Act - is injuncted until the dispute over customary ownership of the concerned land is properly resolved.
      
35. When the Ministerial Determination was issued on 30 May 2018:
    
    • Kandakasi J had declared in Soso Tumu for Luhalipu Clan & Ors v The State & Ors (supra) that benefits could not be paid until any land ownership dispute is resolved either by agreement of the parties or determination by the LTC or the Local Land Court, and
    • the Supreme Court in Toale Hongiri Incorporated Land Group & Ors v Wolutou Incorporated Land Group & Ors (supra) had ordered that the on-going dispute regarding customary land ownership over the Gobe project land return to the LTC for resolution (as decided by Sheehan J back in 2000).
      
36. The various court decisions dealing with the dispute (which include the decisions of Sheehan J, Kandakasi J and the Supreme Court) were not referred to in the Ministerial Determination. We think it therefore proper and safe to conclude that the decisions were not considered by the Minister.
    
37. Similarly, the Ministerial Determination did not state that the Minister considered these other matters as required of him under s 169(4):
    
    • (1) Agreements between landowners.
    • (2) Submissions from affected Local Level Government and or Provincial Government.
    • (3) Submission from any other persons claiming an interest or to be affected by the decision of the Minister.
      
38. We find therefore that the Minister did not comply with the requirements of s 169(4), and the trial judge erred in suggesting to the contrary at [16] of the judgment in finding that because Gazette G362 stated that the Minister had acted in accordance with s 169 of the O&G Act and that was conclusive evidence that the Minister had complied with the law.
    
39. The error was compounded when the learned trial judge further stated at [22]-[24] of the judgment that while the Courts had ordered for the LTC to settle the landownership disputes, they had not specifically restrained the payments of the benefits under the O&G Act, and therefore the Minister was entitled to make the determination pursuant to the Act. The fact of the matter is that the Minister did not consider the court decisions which he was required by law to do.
    
40. This error by the trial judge is sufficient reason for this Court to uphold this appeal and set aside the orders of the National Court.
    
41. On that basis, we do not think it necessary to consider the other grounds of appeal, except to briefly add that the trial judge also wrongly held that the benefits would be held in trust under s 169(7) of the O&G Act pending resolution of any land dispute, when the Ministerial Determination did not state this.
    
42. It is our view that the circumstances of this case do not warrant the applications for judicial review being remitted to the National Court to be re-heard.
    
43. This Court has read all the evidence and the submissions presented in the court below, and we propose to exercise our power under s 16(c) of the Supreme Court Act and give such judgment that should have been given in the first instance.
    
44. Our decision is that the applications for judicial review of the Ministerial Determination are granted on the basis that it was made ultra vires s 169(4) of the O&G Act, and we declare the determination null and void.
    
45. As to costs, we are of the view that the State should pay the appellants’ costs of the National Court proceeding and this appeal.
    
46. By way of additional remarks, we would encourage the interested landowners to follow up with the progress in the directions given by Cannings J in Wolutou Incorported Land Group v Manau (supra) for the outstanding land dispute to be reheard and settled by the Land Titles Commission.
    

ORDERS

(1) The appeal is upheld.

(2) The decision of the National Court given on 4 August 2021 in proceedings OS (JR) No. 421 of 2018 and OS (JR) No. 418 of 2018 is quashed.

(3) The applications for judicial review sought in those proceedings are granted.

(4) The Determination made on 30 May 2018 by the Minister for Petroleum & Energy under the Oil & Gas Act 1998 and published in the National Gazette No. G362 dated 4 June 2018, regarding beneficiaries within PNG LNG Project Pipeline License Four (4) Segment Six (6), is ultra vires s 169 of the Act and is declared null and void.

(5) The State shall pay the appellants’ costs of both the National Court proceeding and this appeal, to be taxed if not agreed.

(6) Time for entry of the order be abridged to the time of settlement which shall take place forthwith.

________________________________________________________________
Haiara’s Legal Practice: Lawyers for the Appellants
Office of the Solicitor General: Lawyers for the First to the Fourth Respondents