Milne Bay Provincial Government v Evara, Minister for Primary Industry, and The State [1981] PGLawRp 566; [1981] PNGLR 63 (17 March 1981)

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[1981] PNGLR 63 - Milne Bay Provincial Government v The Hon Roy Evara, Minister for Primary Industry, and The State

CONSTITUTIONAL LAW - Provincial governments - Inter-governmental dispute - Jurisdiction of court ousted - Intention of Constitution and Organic law on Provincial Government that such disputes be non-justiciable - Constitution ss. 11, 187(h)(5) and Sch. 1.7 - Provincial Governments (Mediation and Arbitration Procedures) Act 1981, ss. 3,[cxix]1 4.[cxx]2

STATUTES - Operation and effect - Retrospective operation - Procedure and practice - No vested rights in procedure - Act providing for mediation and arbitration procedures may operate retrospectively - Provincial Government (Mediation and Arbitration Procedures) Act 1981.

Where a dispute arises between a Provincial Government and the National Government, within the meaning of s. 3 of the Provincial Governments (Mediation and Arbitration Procedures) Act 1981 (the Act) s. 4 of the Act applies and no court has jurisdiction to hear such a dispute.

The Act affects procedure and not substantive rights and as no person has a vested right in any course of procedure the statute may operate retrospectively.

N1>(1) that a claim by the plaintiff (Provincial Government) relating to the issuing by the defendants (National Government) of certain fishing licences under the Fisheries Act 1974 within Milne Bay provincial waters, was a dispute within the meaning of s. 3 of the Act to which s. 4 applied.

N1>(2) A writ in relation thereto issued out of the National Court and service thereof should be set aside.

These were proceedings by way of notice of motion under O. 12 r. 22 of the Supreme Court Rules 1977, seeking orders that the proceedings be set aside, or alternatively that time for entering an appearance be extended.

ANDREW J: The Principal Legal Adviser to the National Executive Council and solicitor for the defendants makes application by notice of motion seeking orders that:

N2>(1) the writ herein and the service thereof upon the defendants be set aside; and

N2>(2) in the alternative, that the time for entering an appearance to this action be extended; and

The plaintiff’s claim relates to the issuing by the defendants of certain fishing licences under the Fisheries Act 1974 within Milne Bay provincial waters.

The motion of the Principal Legal Adviser is made pursuant to O. 12 r. 22 of the Supreme Court Rules 1977, for the defendants entered a conditional appearance denying the jurisdiction of the court. In essence he submits that whereas a dispute has arisen between a Provincial Government and the National Government then the Provincial Governments (Mediation and Arbitration Procedures) Act 1981, applies and by s. 4 no court has jurisdiction to hear such a dispute.

The final report of the Constitutional Planning Committee 1974 recognized that such inter-governmental disputes would inevitably arise (par. 10/22/1944) and recommended that they should be resolved by negotiation and mediation. At par. 10/23/196 the Committee said:

N2>“196. The Committee believes that disputes between governments can best be resolved by political means. We believe that court action tends to produce unnecessarily rigid and legalistic solutions to what are often essentially political disputes. Unlike the parties to inter-governmental disputes, the courts are not directly answerable to the people. It is for these reasons that we have recommended that some of the most important constitutional provisions concerning the operation of the provincial government system should not be justiciable. It is also why we believe that the national government and provincial governments should have recourse to the courts only after the procedures outlined above have been employed and only if the dispute concerns a matter of law. The Supreme Court should hear inter-governmental disputes that concern matters of law.”

Those recommendations have been taken up in s. 187(h) of the Constitution which provides for an Organic Law to make provision for a council, one of whose major functions shall be to avoid legal proceedings between governments by providing for the non-judicial settlement of inter-governmental disputes: (Constitution s. 187(h)(5)). Such Organic Law was empowered to vest in the council mediatory or arbitral powers or functions in relation to inter-governmental disputes: (Constitution s. 187(h)(6).

Division 2 of Pt. XI of the Organic Law on Provincial Government establishes the Premiers’ Council. Section 84 thereof provides:

with a view, in particular, to avoiding legal proceedings between governments by providing a forum for the non-judicial settlement of inter-governmental disputes.”

The Provincial Governments (Mediation and Arbitration Procedures) Act 1981 (hereinafter referred to as the Act) is, in its preamble, expressed as being an Act to provide for mediation and arbitration procedures for the non-judicial settlement of disputes between Provincial Governments, and between Provincial Governments and the National Government and between Provincial Governments and certain statutory authorities. The Act was certified by the Speaker of the National Parliament on 2nd March, 1981, and was brought into operation on 3rd March, 1981.

Clearly, in the present case, a dispute has arisen between the Milne Bay Provincial Government and the National Government within the meaning of s. 3 of the Act and by s. 4 no court has jurisdiction to hear a dispute to which the Act applies.

Counsel for the plaintiff, however, submits that its cause of action was commenced prior to the Act coming into effect and that the Act does not operate retrospectively.

I should add that once such a dispute has arisen, the Act provides for the Premiers’ Council to appoint suitable persons to form a panel of mediators.

The Provincial Governments (Mediation and Arbitration Procedures) Act is merely the machinery whereby the recommendations of the Constitutional Planning Committee’s Report, s. 187 of the Constitution and Div. 2 of Pt. XI of the Organic Law on Provincial Government are adopted and the forum established for the non-judicial settlement of inter-governmental disputes.

The Constitution and the Organic Laws are the supreme law of Papua New Guinea: (Constitution s. 11.) By Sch. 1.7 of the Constitution, where a constitutional law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal. In my view the purport and intent of the Constitution and the Organic Law on Provincial Government is to declare a dispute such as has arisen here, to be non-justiciable.

In my view the Act affects procedure and not substantive rights. It is the supreme law of the Constitution and the Organic Law on Provincial Government whose tenor and intention is to declare such a dispute non-justiciable. It is true that there is a presumption against a statute having retrospective operation and no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication: West v. Gwynne[cxxi]³. But that presumption has no application to enactments which affect only procedure and practice and no person has a vested right in any course of procedure: Republic of Costa Rica v. Erlanger[cxxii]⁴. The Act itself declares that it is an act to provide for mediation and arbitration procedures.

N1>More importantly however, s. 4 of the Act is not altering the substantive right to bring the complaint before an impartial body for settlement. The plaintiff complains that it would have no control over any mediation proceedings as it says it would in the present proceedings. But the Constitution has deemed that such disputes should be heard by mediation and arbitration. Moreover, if all procedures under the Act should ultimately fail then the plaintiff would have recourse to the National Court under the provisions of s. 155(5) of the Constitution.

I think it is also a valid argument that the wording of s. 4 of the Act “No court has jurisdiction to hear ...” indicates that it is appropriate to refer to the time of the hearing rather than that of the issue of the writ or the creation of the cause of action especially where the intention of the Act is to avoid legal proceedings and provide a more appropriate forum in which to settle the dispute.

Accordingly it is my opinion that this Court has no jurisdiction to hear the dispute or to determine the issues raised in this matter.

I grant the application and order that the writ herein and the service thereof upon the defendants be set aside.

It remains for the dispute to be determined under the procedures as provided in the Provincial Governments (Mediation and Arbitration Proceedings) Act 1981.

Solicitor for the defendants: Principal Legal Adviser to the National Executive Council.

[ca'>[cxix]Section 3 provides-

N2>3. Disputes to which this act applies.

This Act applies to a dispute—

(a) between two or more parties to whom this Act applies; and

(b) to which no person, other than a party to whom this Act applies, is a party; and

(d) which is not eligible for reference to the National Fiscal Commission.

[cxx]Section 4 provides-

N2>4. Courts to have no jurisdiction over disputes to which this act applies.

No court has jurisdiction to hear a dispute to which this Act applies.

[cxxi][1911] 2 Ch. 1.

[cxxii][1876] UKLawRpCh 259; [1876] 3 Ch. D. 62.

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Papua New Guinea Law Reports

Milne Bay Provincial Government v Evara, Minister for Primary Industry, and The State [1981] PGLawRp 566; [1981] PNGLR 63 (17 March 1981)

Papua New Guinea Law Reports - 1981