SC2740

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 198 OF 2022 (IECMS)

TRIBUNE MOUNT KARE GOLD LIMITED FORMERLY KNOWN AS NEW BRITAIN LIME & CEMENT LIMITED
Appellant

JERRY GARRY IN HIS CAPACITY AS THE MANAGING DIRECTOR OF THE MINERAL RESOURCES AUTHORITY
First Respondent

STANLEY NEKITEL AS THE REGISTRAR OF TENEMENTS
Second Respondent

GLOBAL MINING GROUP LIMITED (GMG)
Third Respondent

Waigani: LIOSI J, ELIAKIM J, COATES J
29 MAY 2025

APPEAL – Mining Act 1992 – Applications for exploration licences – Application lodged during moratorium period – Register of Tenements subsequently amended to expunge application – Register amended again to allow for the entry of application – Claim that such was invalid.

STATUTORY INTERPRETATION – word “may” and words “in any matter” - plain meaning of words - purpose of legislation. Whether certain words allow Registrar a discretion on entries into the Mining Register.

Held
The third respondent lodged an application for a mining exploration licence during a statutory moratorium period, such period imposed by the Mining Act 1992, after a licence held by another company was not renewed. By changing dates, the first and second respondents caused the application to be expunged and then re-entered into the Register of Tenements, giving the third respondent priority over other applicants. The registration of the application was not authorised by the Mining Act 1992. The appellant, who lodged an application outside of the moratorium period, was denied opportunity for entry of its interests on the Register. Appellant’s application to take priority.

Cases cited
Inakambi Singorom v John Kalaut [1985] PNGLR 238
Norah Mari v Alkan Tololo and others [1976] PNGLR 125
Ombudsman Commission Investigations of Public Prosecutor [1978] PNGLR 345
Ombudsman Commission Investigations of Public Prosecutor [1978] PNGLR 345
Request by Principal Legal Advisor on a Point of Law arising in a case where a person tried upon indictment has been acquitted [1980] PNGLR 326
South Australian Cold Stores Ltd v Electricity Trust of South Australia (1965) ALJR 332
Tex Onsite (PNG) Limited v Stanley Nekitel as the Registrar of Tenements & 5 Ors [2017] PGNC 188
Tindiwi for/on behalf of Members of the Suspended Enga Provincial Government v Nilkare, Minister Provincial Affairs and The State [1984] PNGLR 191

Counsel
I Molloy with G Tarp for the appellant 
G Jiki for the first and second respondents
C Joseph for the third respondent 

1.	BY THE COURT: This is an appeal from a National Court decision made in relation to duties under the Mining Act 1992 (the Act).

2.	The Act regulates mining for the benefit of the nation of Papua New Guinea, and, under the control of the mining minister, sets up a regime for regulation by appointing various officials with distinct powers so that licences for various mining purposes may be examined and registered. 

CONTEXT

3.	An exploration company, Summit Development Limited (Summit) held an Exploration Licence on land in the Mt Kare area, 600 km northwest of Port Moresby, in Enga Province.

4.	On 14 December 2015 the Minister, exercising power under the Act, determined Summit’s licence would not be renewed and such was recorded in the mining Register of Tenements, a record maintained by the Mineral Resources Authority.

5.	The purpose of the Register is to record all details of and relevant to registered applications, and is prima facie evidence of all matters required or authorised by the Act (see s.113), so that licences can be managed under the Act. To manage licences, the Act creates entities and positions including the Mineral Resources Authority with a managing director and a Registrar of Tenements. The Act also establishes what tenements are, and included as a tenement is an exploration licence.

6.	Summit sought judicial review of the decision not to renew its licence and this was dismissed.

7.	Pursuant to s.30 of the Act, no application for an exploration licence may be made within 30-days of a lease expiring, being surrendered or being cancelled. Section 30 of the Act refers to a valid application, and the issue of being valid will be addressed below.

8.	No application could then be made until 13 January 2016 (our calculation of time running from the day after the decision was made), although the date referred to during the hearing was 14 January 2016 – such not affecting the facts here.

9.	On 18 December 2015, four days after the refusal to renew, Global Mining Group Limited (GMG), the third respondent here, lodged a purportedly valid application for an exploration licence over the same ground or much of the same ground covered by Summit’s Exploration Licence (licences are given numbers for identification, but there is no need to refer to those specifics until orders are made).

10.	On 25 January 2016, Tribune Mount Kare Gold Limited (Tribune), formerly known as New Britain Lime and Cement Limited, the appellant here, lodged an application for an exploration licence covering the same area. As can be seen, this was outside the 30-day moratorium period.

11.	Simultaneously, pursuant to s.125 of the Act, Tribune sort that the Register of Tenements be rectified by removing GMG’s registration, which had been entered on the Register, referring to it as invalid.

12.	In response, the Managing Director of the Mineral Resources Authority, the first respondent here, directed the Registrar of Tenements, the second respondent here, to rectify the Register by removing or expunging GMG’s invalid application, and then further directed the Registrar to rectify the Register again, by reinstating GMG’s application with effect from 14 January 2016, the day after the expiration of the 30-day moratorium period.

13.	This process excluded Tribune from opportunity to obtain an exploration licence, and favoured GMG in circumstances said to be prohibited by the Act.

14.	After request for removal of GMG’s entry from the Register, without success, Tribune filed review proceedings in the National Court.

15.	On 16 November 2022 a decision by the National Court upheld the decisions taken by the first and second respondents - and this is the decision being appealed here.

16.	There is no question that the first and second respondents are given power under the Act to make amendments to the Register, the controversy being whether the power has been properly exercised in the manner in which they have interpreted their powers.

17.	As will become apparent, the decision comes down to statutory interpretation.

APPEAL

18.	There are six grounds of appeal against the decision of the National Court.

19.	They are, paraphrased, that the court below erred in law, fact or both, with determinations that:

a)	GMG’s application lodged on 18 December 2015 was valid within s.30 of the Mining Act 1992;
b)	GMG’s application being entered onto the Register was not contrary to s.30 of the Mining Act 1992;
c)	Section 125(2) of the Mining Act 1992 gave the first respondent a discretion to reinstate GMG’s application as from 14 January 2016;
d)	Section 125(2) of the Mining Act 1992 gave the first respondent power to reinstate GMG’s application as from 14 January 2016 as it was fair and equitable to do so;
e)	Directions given by the first respondent to the second respondent to rectify the Register were powers within the meaning of s.125(2) of the Act, and
f)	The appellant had failed to show that the respondents had not complied with the requirements of s.125.

20.	Some of these grounds are closely related and merely repeat themselves in another form.

OUTCOMES SOUGHT

21.	The appellant seeks that the appeal be allowed, that the orders of the primary judge dismissing the matter be set aside and that the Register be rectified in its favour.

22.	The first and second respondents together, and the third respondent separately represented, seek dismissal of the appeal based on competency, and in the alternative, that the decisions made were within a discretionary power.

23.	Competency is a technical issue. The basis of the objections turns on submissions that the Notice of Appeal does not, with the required specificity, state the grounds of appeal or identify errors of law and fact.

24.	There is no doubt that a Notice of Appeal may so lack particularity that it just cannot stand as the proper lynchpin document giving the court jurisdiction to hear the appeal.

25.	However, we will observe that it is also a ground often used when more substantive grounds are absent.

26.	Lawyers should use the defence sparingly. A Notice of Appeal needs enough information to get the appeal before the court pursuant to Order 9 Rule 9 (c), stating of course whether leave is required, the nature of the appeal being against some or all of the judgment, briefly stating grounds which we note will vary from case to case whether they be law, or fact or both, what is sought in lieu of the orders of the judgment below as well as containing  form, signature and filing requirements.

27.	The grounds of appeal stated above meet these requirements, so this aspect of opposition fails.

28.	Further grounds are that the sections of the Act which are in question before us are not in mandatory terms, or that the decisions made by officials were made in a genuine belief of their powers given discretionary provisions to make decisions.

29.	These issues are addressed below.

THE HEARING

30.	The affidavit evidence in the court below revealed the course of events, in that the appellant through its legal representative attended at the office of the Mineral Resources Authority on 25 January 2016 to lodge its application for a grant of an exploration licence.

31.	The application was not accepted because it was considered that it did not meet the requirements of s.101(a) of the Act, with regard to the practice and procedure of the Authority in dealing with applications.

32.	No evidence of any default in how the practice and procedure of the Authority was offended, was stated in the decision.

33.	The decision recorded the evidence of the Managing Director of the Mineral Resources Authority, Jerry Garry, the first respondent, and the Registrar of Tenements, Stanley Nekitel, the second respondent, who both considered that under the priority provision of the Act as to consideration of applications (s.100), the GBG application lodged 18 December 2015 but amended to 14 January 2016, took priority.

34.	The decision considered the evidence of the first and second respondents in discharging their duties as to assessment of applications under the Act and then amending the Register. It is apparent that the court below got into difficulty when considering whether there was a discretion under s.125 to amend the Register, when s.30 created a 30-day moratorium period in lodgement of valid applications and determining that such decisions had a fair and equitable element.

35.	It is worth recording s.125 in full. It states:

125. RECTIFICATION OF THE REGISTER.

(1) Where the Registrar or another person discovers that there has been–
(a) an omission of an entry from the Register or the rejection of an instrument presented for registration; or
(b) an entry made in the Register without sufficient cause; or
(c) an entry wrongly existing in the Register; or
(d) an error or defect in an entry in the Register,
the Registrar or that other person may make an application to the Director for rectification of the Register.
(2) On receipt of an application under Subsection (1), the Director may–
(a) make an investigation into the matter; and
(b) direct the Registrar to rectify the Register in any matter which the Director considers requires rectification.
(3) A person may appeal to the National Court against a direction or decision or to seek a decision by the Director under Subsection (2), and the National Court may make such order as it considers necessary to settle the matter.
(4) The Registrar shall give effect to an order of the National Court under Subsection (3).

36.	As can be seen, the section allows for rectification, that is correction, described in the judgment as making errors “right”. 

37.	It is an essential power given so that the efficacy of the Register in recording mining interests reflects the actual state of affairs, and as stated in the Act, entries become a source of prima facie evidence of compliance with the Act.

38.	Entries of applications granted can only be made after the Registrar discharges duties in determining that an application meets the legislative requirements, so that an application is described as a valid application as it is referred to under s.30. In short, applications must be properly prepared so that they meet compliance with the Act for their proper regulation once a licence is granted.

39.	These are not mere statutory requirements, but part of the public interest because the Act was established for public purposes and national interests within the dictates of The Constitution, as stated in s.1 of the Act.

40.	Section 30 of the Act places a 30-day moratorium on the lodging of a valid application once a licence over land expires, is surrendered or is cancelled, as has occurred in this case.

41.	In interpreting both s.30 and s.125, we apply those legislative provisions and authorities which direct the court to the plain meaning of the language used in statutes, in order to understand the meaning of a particular provision, and where helpful, the purpose of the legislation, (see s.109(4) of The Constitution, Inakambi Singorom v John Kalaut [1985] PNGLR 238, per Kidu CJ at 241; PLAR No. 1 of 1980; Request by Principal Legal Advisor on a Point of Law arising in a case where a person tried upon indictment has been acquitted [1980] PGSC 15; Norah Mari v Alkan Tololo and others [1976] PNGLR 125 at 136 and SCR No 1 of 1978; Ombudsman Commission Investigations of Public Prosecutor [1978] PNGLR 345 per  Pritchard J at 389).

42.	We will deal with s.30 first.

43.	The word “valid” in s.30 has a meaning. While the first and second respondents were satisfied that GMG’s application was valid in all respects, while it may have met requirements with regard to information required to be disclosed, it could not have been valid in that it was not allowed to be lodged under s.30 within the 30-day moratorium period.

44.	Lodged within that period invalidated the application, even though all other particulars and information within the application conformed with the requirements of the Act.

45.	The submission by the respondents that the moratorium stated in s.30 is not mandatory is clearly, on the wording of the Act, a wrong interpretation. The wording gives no discretion as to the moratorium period.

46.	Further, the first and second respondents altered the Register favouring GMG’s entry, as they allegedly believed they had power to do so, as a fairness and equity issue. No such element exists in the legislation as to altering the Register because it is fair and equitable to do so. Nor can they rely on other Acts such as the Companies Act or The Constitution to establish a fairness and equity consideration, a submission put before the court. There is no connection apparent to accept such submission.

47.	 Section 30 is in these terms:

30. RESTRICTIONS ON APPLICATIONS FOR CERTAIN TENEMENTS OVER LAND SURRENDERED OR RELINQUISHED FROM AN EXPLORATION LICENCE.
Where–
(a) an exploration licence expires, or is surrendered or cancelled; or
(b) any part of land within the land the subject of an exploration licence is surrendered or relinquished, no valid application for an exploration licence over the same land shall be made by any person, within a period of 30 days after the date on which the land ceases to be the subject of the exploration licence as provided for under Sections 22(4), 141 and 145.

48.	Rather than requiring fairness or equity, the section is mandatory in relation to what cannot occur, and no valid application can be lodged in the moratorium period. Conversely, any valid application lodged in that period becomes invalid when the wording, the statement of law, is applied to such act.

49.	But it is also apparent that the first and second respondents, in amending the Register, did not discharge duties to the second application, the appellant here, and it is fundamental that they assess all applications within terms of the Act.

50.	While it was stated in their evidence that the appellant’s application was defective, what could have occurred, under s.115, is that its application could have been entered as a provisional application and directions given to amend any identified defects.

51.	That could not have been done, nor was it done, with regard to GMG’s application because s.30 does not allow for a valid application to be lodged within the 30-day moratorium period.

52.	While we were not directed to the second reading speech or other extrinsic materials, the appellant offers, possibly correctly, that the 30-day moratorium may be to allow other potential companies to prepare applications for licences.

53.	We now hold that one of the reasons for the moratorium period is to allow others to prepare applications, and of course the appellant had been denied opportunity.

54.	And mistaking the mandatory nature in s.30 may have been caused by mistaking s.125 as giving a discretion to make the amendments within the 30-day moratorium period.

55.	There are two alleged sources of discretion were said to exist in s.125.

56.	Subsection (2) states:

“On receipt of an application under Subsection (1), the Director may–
(a) make an investigation into the matter; and
(b) direct the Registrar to rectify the Register in any matter which the Director considers requires rectification.”

57.	Firstly, the word “may” investigate, and secondly the words giving the Director a power to direct the Registrar to rectify mistakes “in any matter” were relied on as a discretion to justify the changes made causing the controversy before us.

58.	The word “may” has a long judicial history of interpretation 

59.	As former Chief Justice Injia identified about the word “may” in his text Injia on Statutory Interpretation in Papua New Guinea and the Pacific, University of Papua New Guinea Press and Bookshop 2013, the word “may” could indicate a discretionary power (South Australian Cold Stores Ltd v Electricity Trust of South Australia (1965) 39 ALJR 332), but there are circumstances when the discretionary element is removed (Tindiwi, for and on behalf of Members of the Suspended Enga Provincial Government v Nilkare, Minister for Provincial Affairs and The State [1984] PNGLR 191; [1981] PGSC 18. 

60.	In the context of the facts here, the word ‘may’ indicates a discretion as to undertaking an investigation of a mistake or an error on the Register, but it cannot be interpreted to allow a discretion to correct an entry for an application lodged in defiance of the 30-day moratorium period. The words do not extend that far, as lodging an application in that period is not a mistake or an error capable of correction by offices created under the Act relodging it at another time. Its entry within the 30-day period is legally incompetent.

61.	That the Director may investigate “in any matter” for a mistake or error is only where an investigation may be required, as some mistakes may be so obvious no investigation is required. It is not a discretion not to investigate when an error of some type as mentioned in the section exists. Areas of investigation are those stated in s.125(1). 

62.	The words do not give the discretion to factually make changes which approves that which could not be approved previously because of a prohibition in the Act.

63.	We were referred to Tex Onsite (PNG) Limited v Stanley Nekitel as the Registrar of Tenements and 5 Ors [2017] PGNC 188 (Tex Onsite), paragraph 26, where s.125 of the Act was addressed.

64.	The paragraph merely states that the Registrar has a discretion to investigate a complaint and to direct the Registrar “in any matter which the Managing Director considers requires rectification – s.125(2)(b).”

65.	The Tex Onsite decision comes from a lower court and does not bind this court and further, the decision made in Tex Onsite is irrelevant to the legal issues being addressed here. The case takes the first and second respondents position no further, in circumstances here where the entry onto the Register of GMG’s interest was prohibited during the moratorium period.

66.	GMG, said to be an unknowing participant in all of this, was as capable as the appellant in seeking legal advice, to understand the meaning of the words used in s.30 and s.125 of the Act, as to applications and entry errors.

67.	It knew, or must have known, as did the first and second respondents, that the plain meaning of the words on proper advice would be to the effect that the acceptance of its application within the 30-day period was contrary to the objects of the Act, and such could not be later rectified so as to make the application compliable with the Act under s.125.

68.	There is no other meaning which can be given to the words used in both sections. We point out that this Ruling applies only to the facts here. 

69.	Finally we need to address s.112 of the Act, given that it was raised by the third respondent. The section extends the life of an exploration licence even if the expiry date of the licence has passed, if an application is made to extend the licence.

70.	At the time the Minister determined not to renew Summit’s licence, it was in an extended period of operation pursuant to s.112.

71.	The third respondent submitted there is no connection to the moratorium period under s.30. We find no support for such a position, and in fact, Summit was in the position where it operated under an extended licence pursuant to s.112, but when the Minister refused to extend on 14 December 2016, s.30 restrictions materialised.

72.	There is no further consideration is necessary of s.112.

73.	GMG has gained an unfair advantage over a very valuable resource with the alterations made to the Register in its favour, with no statutory power to do so, as against any other competitor, including the appellant here.

74.	The appellant lodged its application within terms of the Act, and was advised of errors.

75.	What should have occurred is that GMG should have been advised that it could not lodge its application when it did, and advised to relodge when the moratorium period expired after the decision was made to cancel Summit’s licence. It could not have its application relodged by any power or official discussed herein under s.125 of the Act.

76.	It was also claimed that the first or second respondent advised GMG of its position in lodging when it did, and if that occurred, it appears to be legal advice not capable of being given lawfully. The role of the first and second respondent is to discharge their duties under the Act, not give legal advice to applicants.

77.	In that case, the appellant has lodged within a proper time frame, and subject to any errors or mistakes in its application capable of address, it should have been recorded as a provisional entry, with notice to correct under s.115 of the Act.

78.	The grounds of appeal, particularly the simple proposition that the decision was wrong as to the application of the law, because s.30 and s.125 of the Act did not authorise the first and second respondents to make entries into the Register favouring GMG, are properly stated.

79.	On that basis, the appeal will be upheld, the Registrar will be ordered to record the appellant’s application either provisionally or otherwise with directions to correct it, and treat it as having been lodged first pursuant to s.100 of the Act.

80.	Costs will be awarded against the respondents.

81.	During submissions counsel for the appellant said it was not necessary to make any order other than to remove GMG from the register and indicate that Tribune’s application takes priority. Counsel for the first and second respondents confirmed that Tribune is next in line of priority to have it entered upon the Register.

82.	Finally, we will state that the first and second respondents named here are those officers who now occupy the positions and are required to be named for this matter, however, they were not in the positions when these decisions were made.

ORDERS

1.	The appeal numbered SCA No. 198 of 2022 is upheld.
2.	The orders made 16 November 2022 in case numbered CIA No. 21 of 2019 are set aside.
3.	The Registrar of Tenements is directed to remove the name Global Mining Group Limited and its application for Exploration Licence ELA 2429, entered onto the Register of Tenements on 14 January 2016, from the Register of Tenements.
4.	The Registrar of Tenements is directed to treat Tribune Mount Kare Gold Limited’s application for Exploration Licence ELA 2445, consequential upon the removal of GMG Limited from the Register of Tenements, as first in time for an application for an Exploration Licence.
5.	The First, Second and Third Respondents shall pay the costs of the Appellant as agreed or as taxed.
________________________________________________________________
Lawyers for the appellant: Fiocco & Nutley Lawyers
Lawyers for the first & second respondents: Allens
Lawyers for the third respondent: Ashurst Lawyers