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Papua New Guinea Law Reports |
[1971-72] PNGLR 11
PAPUA NEW GUINEA
[SUPREME COURT OF
JUSTICE]
REGINA
v
THE WARDEN’S COURT AT JABA RIVER
EX PARTE
BOUGAINVILLE COPPER PTY. LTD.
Port Moresby
Minogue CJ Clarkson Kelly JJ
4 November
1970
4 December 1970
MINES AND MINERALS - Compensation to owners - Claim for loss of fish and marine creatures in portion of river - Basis of assessment - Claimant receiving payment from others for right to take fish - Loss of a right - Whether payment of compensation ought to be by instalments related to term of mining lease - Necessity of identifying claimant in whose favour order is made - Mining (Bougainville Copper Agreement) Ordinance 1967, s. 6, Sch. cl. 15 (d)[v]1.
PREROGATIVE WRITS - Certiorari - Warden’s court - To remove and
quash - Error of law in judgment - Award for payment of compensation for mining
operations - Damage - Judgment expressed as being made under inapplicable
statute - Appropriateness of remedy - No privative clauses
- Mining Ordinance
1926-1966, s. 56 - Mining (Bougainville Copper Agreement) Ordinance 1967, s. 6,
Sch. cl. 15 (d)[vi]2.
A judgment of a
Warden’s Court upon a claim for compensation, capable of being supported
only by reference to the provisions
of the Mining (Bougainville Copper
Agreement) Ordinance 1967, set out that the claimant was “entitled to
compensation for damage caused by the operations of the defendant under the
provisions of s. 56 of the Mining Ordinance 1926-1966”. This
judgment awarded compensation for the loss of fish and other marine creatures in
a certain stretch of river,
payable by periodic payments over a period of time
equal to the term of the relevant mining lease. The claim for the loss of the
fish related not only to fish which would otherwise have been taken by the
claimants but to fish which would otherwise have been
taken by persons other
than the claimants upon making recompense to the claimants.
Held
By the Full Court: Taking the most limited view that for the purposes of
proceedings in certiorari the record includes the formal
judgment and does not
include the evidence or the reasons (but without deciding that the record is so
restricted) an error was apparent
on the face of the record of the
Warden’s Court. Since there was no privative provision rendering
certiorari inapplicable and,
if the remedy were discretionary in the
circumstances, the case was not one in which a discretion should be exercised to
refuse the
writ, certiorari should be granted to remove the judgment and quash
it.
Per the Full Court:
(1) a; Th i it is necessary to clearly identify and specify the persons on whose behalf su awar forecompinsation ison is made;
(2) t#16; That such compensation recoverable is not necessarily related toperiotime is thes the term term of the relevant mini mining lease;
(3) ; That assumassuming that the Warden’s Court had power to make an order awarding compensation by a number of periodic payments, where compensation is being awarded for the loss of a right compensation awarded ought more properly to be a lump sum equal to the value of that right at the date of its loss; and
(4) t#16; That, in respect of a claim for compensation by a clan for the loss of fish and e lifa in e river, the loss, so far afar as regard is to be had to fish caught by persons outside the clan, is not the loss of the fish but the loss of the recompense paid for the taking of those fish.
Certiorari
On 4th December, 1970, on the application of Bougainville Copper Pty. Ltd. an order nisi for prohibition was granted by the Full Court directing Domasi Onoka (the first respondent) and Hector James McKenzie (the second respondent) the Mining Warden constituting the Warden’s Court at Jaba River to show cause before the Full Court of the Supreme Court of the Territory of Papua and New Guinea why a judgment and order of that Warden’s Court dated 3rd August, 1970, should not be removed to the Supreme Court and quashed.
Particulars of the record of the proceedings before the Warden’s Court appear in the reasons for judgment below.
Counsel
Opas Q.C., with him Wood for the prosecutor.
Gyles, with him Lovering, for
the first respondent.
Kinna, for the second respondent, to abide the order of
the Court.
Cur. adv. vult.
MINOGUE CJ CLARKSON KELLY JJ: dred tred the following joint
judgment:
The prosecutor, Bougainville Copper Pty. Ltd., seeks a of
certiorrtiorari to remove into this Court a judgment and order made by the
respondent
Hector James McKenzie, the Mining Warden constituting the Warden’s Court
at Jaba River, whereby it was ordered that
the prosecutor, which was the
defendant in a proceeding in that Court, pay compensation to Domasi Onoka, who
was the plaintiff in
that proceeding, or his heirs or successors for the loss of
fish and other marine creatures in a certain stretch of the Jaba River.
The
order further provided for periodic payments up to the year 2011 with an
alternative method of payment by way of a capitalized
lump sum in the event that
this Court should rule in other proceedings that the Warden’s Court does
not have power to award
periodic payments.
The only basis on which compensation could be awarded in the circumstances of this case is pursuant to cl. 15(d) of the agreement set out in the schedule to the Mining (Bougainville Copper Agreement) Ordinance 1967 which by s. 6 of that Ordinance has the force of law as if contained in the Ordinance. Clause 15(d) requires the prosecutor to make compensation for any loss suffered by any indigenous or other inhabitant of Bougainville Island or the other islands adjacent thereto resulting from any damage done (whether to land, anything on land, water or otherwise) or any interference with any right to use land or water caused by the disposal by the company of any overburden removed in the course of, or tailings produced as a result of, its operations under the agreement. The clause further provides that such compensation shall be provided either in cash or by way of provision on reasonable terms and conditions of land or other facilities or benefits or partly in one form and partly in another and in default of agreement thereon between the company and the person seeking such compensation the entitlement to and the amount and nature of such compensation shall upon application by such person be determined in accordance with procedures provided for in Pt VII of the Mining Ordinance.
The judgment of the Warden’s Court given on 3rd August, 1970, after setting out various findings of fact proceeded as follows:
“The Plaintiff is entitled to compensation for damage caused by the operations of the Defendant under the provision of Sec. 56 of the Mining Ordinance 1928-1966 of the Territory of New Guinea for:
(a) ¦t damage to the surface and to the
improvements on the surface including crops and mic t (b)   tsev; severance of the land from other lands of
the owner; (c) 00s; los; loss of s of surface rights of way; and (d) ـ҈ all consequesequentialntial damage” and then wn to make various orders including the orde order for the payment
of compensation already referred to. One of the grounds on which certiorari may be granted is error on the face of
the record. Although argument, supported by authority,
was directed to the Court
as to what constitutes the record for this purpose, we do not find it necessary
to express any view on
this matter as taking the most limited view of the
meaning of “record”, that is, as including the formal judgment and
excluding both evidence and the reasons, but without deciding that the record is
necessarily so restricted, it is apparent that there
is error on the face of the
record. The Warden purported to act under s. 56 of the Mining Ordinance
1928-1966, a section dealing with compensation in respect of prospecting or
mining on private land. The applicable Ordinance for
the present purpose is the
Mining (Bougainville Copper Agreement) Ordinance 1967 and compensation is
to be assessed pursuant to cl. 15(d) of the agreement set out in the schedule to
that Ordinance. As the
Warden in his judgment has purported to award
compensation under an inapplicable statutory provision there is thus error on
the face
of the record. Unless by reason of a privative provision the remedy of certiorari is not
available or unless the Court in the exercise of any discretion
which it may
have to refuse the writ should refuse to order that it issue, it would follow
that the writ should issue. In this case there is no privative provision whereby the remedy of certiorari
would not be available. Section 134 of the Mining Ordinance provides
that: “No proceedings under this Ordinance shall be removed or removable
into the Supreme Court except as provided
by this Ordinance”. However,
although the Warden purported to make the order under s. 56 of the Mining
Ordinance the proceedings were not proceedings under that Ordinance. Clause
15(d) of the Schedule to the Mining (Bougainville Copper Agreement)
Ordinance 1967 provides that compensation is to be determined in accordance
with the procedures provided for in Pt VII of the Mining Ordinance but it
does not thereby follow that a proceeding for such a determination is a
proceeding under that Ordinance and we do not consider
that it is correct to so
regard it. The consequence is that s. 134 has no application in this
instance. If the grant of certiorari were discretionary in the circumstances (and we do
not find it necessary to decide that it is) the Court
would be entitled and
indeed required to look at the whole of the proceedings including the evidence
and the reasons for judgment
to determine how this discretion should be
exercised. A possible ground for the exercise of the discretion to refuse the
writ would
be that, even though the Court had purported to act under an
inapplicable statutory provision, the award was one which could properly
have
been made under the applicable provision. On looking at the evidence and the reasons it is apparent that there was no
evidence, or at the most only a scintilla of evidence,
to support the conclusion
implicit in the Warden’s reasons that the loss to the plaintiff as
representing his sub-clan was
1,500 pounds of fish per year. It is apparent that
his judgment proceeded on this basis and having regard to this fundamental error
it clearly could not be said that the award was one which could properly have
been made under the statutory provision which did apply.
This would therefore
not be an appropriate case to exercise any discretion to refuse the writ. For these reasons the order nisi should be made absolute and the judgment and
order quashed. As the matter will no doubt again be litigated we shall not deal with the
facts other than to the extent to which we have already
referred but we consider
it appropriate to comment on certain matters of principle. Firstly, it is
obviously necessary to clearly
identify and specify the persons on whose behalf
the award is made. Other claims may be made by other persons in the future so
that
any order for compensation made now should clearly indicate on whose behalf
such compensation is awarded. Secondly, it must be appreciated
that merely
because the term of the lease is forty-two years the compensation recoverable by
a claimant is not necessarily to be
tied in any way to that period. We express no opinion on the matter of the power of the Warden to make an
order in the form in which he did in this case by his first
alternative, that
is, to award compensation in the form of a number of payments to be made over a
period of years; this is clearly
a question of considerable difficulty. However,
even if the Warden were to have the power to make an order in that form, we
would
not consider it appropriate that he should do so in the circumstances of
this case. Compensation is here being awarded for the loss
of a right and it
would seem that such compensation would more properly be a lump sum, that is,
the value of that right ascertained
as at the date at which it was lost. Finally, we would point out that, on the basis that the plaintiff claims for
himself and all the members of his sub-clan, so far as
regard is properly to be
had to fish caught by persons outside the sub-clan, the loss to the sub-clan is
not the fish but the recompense
paid for the taking of those fish. Order nisi for certiorari made absolute. Solicitors for the prosecutor: Cyril P. McCubbery &
Co. [v]The effect of s. 6 and the provisions of cl. 15(d)
appear sufficiently in the reasons for judgment at p.
13.
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Solicitor for the first respondent: W. A. Lalor, Public
Solicitor.
Solicitor for the second respondent: J. C. Kinna,
Department of Law.
[vi]The effect of s. 6 and the provisions of cl.
15(d) appear sufficiently in the reasons for judgment at p. 13.
URL: http://www.paclii.org/pg/cases/PNGLR/1971/11.html