N2903

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 258 OF 2003

Between:

APPLICATION OF WILLIE SINENE
on behalf of the LANDOWNERS OF
THE VANIMO TRP AREA
-Plaintiff-

And:

CONFUSCIUS IKOIRERE, JAMES FANIO,
BROWN KIKI, KEVIN IMBA, PETRUS AWA
AND LYALL UMBO sitting as the
SANDAUN PROVINCIAL FOREST
MANAGEMENT COMMITTEE
-First Defendant-

And:

PAPUA NEW GUINEA FOREST AUTHORITY
-Second Defendant-

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Third Defendant-

Waigani : Injia, DCJ
2005 : May 20th, 31st

Statutory interpretation – Forestry Act, S.23 - Meeting of Provincial Forest Management Committee – Selection of two representatives of forest resource owners to attend Meeting – Meaning of the word "Select" considered –Meaning of the phrase "owners of that particular forest resource" considered – Means the whole of the project area covered in the Timber Resource Permit and not individual blocks within the Timber Resource Permit area - Procedure for meeting of Committee prescribed by statute in mandatory terms– Procedure must be strictly followed.

Cases cited in the judgment:
An Ex parte application of Eric Gurupa (1990) N856 
NTN Pty Ltd v The Board of PTC [1987] PNGLR 70
Eliakim Laki & Ors v Maurice Alakuku (2001) N2001

A. Baniyamai for the Plaintiff
I. Shepherd for the Defendants

31st May 2005

INJIA, DCJ: This is an application for judicial review of two decisions of the First Defendant made on 14 January 2001 and 1 July 2002 respectively, under the Forestry Act 1991 ("the Act"), to endorse a Deed of Variation to vary the Project Agreement relating to the Vanimo Timber Resources Project Area. The application is made under Order 16 of the National Court Rules. Leave was granted on 29 August 2003. A Notice of Motion seeking substantive orders was filed on 2 March 2004. The Plaintiff seeks an order in the nature of certiorari quashing the decision and declaratory orders.

The facts deposed to in the affidavits filed by the respective parties are not in dispute. The Vanimo Forest Project area is the subject of a Timber Permit held by Vanimo Forest Products Limited issued under the Act. On 14 November 2001, at 4.30p.m., a Special Meeting of the Provincial Forest Management Committee (PFMC) was held at Vanimo Beach Hotel to consider and endorse a Deed of Variation of the Project Agreement, ("the Deed") submitted by the Permit Holder. The PFMC deliberated on it and unanimously endorsed the Deed and decided to recommend the same to the National Forest Board ("the Board"). The decision was formalized by the Chairman signing Form 103, of Regulations 106.

In this meeting, the landowners of the forest resource area ("the landowners") were not represented. There is no dispute that this meeting was in breach of S.28(3) of the Act which provides:

"(3)	Where a Provincial Forest Management Committee is deliberating in respect of a particular forest resource, the owners of that particular forest resource shall be entitled to be represented at the meeting of the Provincial Forest Management Committee by two of their members selected by them, who shall be entitled to take part in the deliberations but shall not be entitled to vote."

The PMFC Committee decision was disputed by the landowners. As a result, the recommendation was not acted upon by the Board. The PFMC responded by reconvening a meeting on 2 August 2002 to reconsider the Deed of Variation. In this meeting, six (6) landowners attended the meeting. They are:

Mr. Terence Onivi		Block 5 (Serra) Vanimo TRP
Mr. Damien Bewaton 		Block 3 Vanimo TRP
Mr. Fidelis Riri		Block 4 Vanimo TRP
Mr. Peter Nape		Block 6 Vanimo TRP
Mr Bernard Nepe		Block 5 Vanimo TRP
Mr Joseph Suano		Block 3 & 4, Amanab FMA
Mr. John Fanio		Block 1 Amanab FMA
NFS Technical team		Cornelius Warokra, Fabian Nivlai, David Craig

The Minutes of the meeting shows these landowners participated in the discussions and raised questions. The relevant reports were presented and discussed in their presence. The Committee agreed to accept the Deed of Variation in terms of recommendation in G1 and G2.

On 27 August 2002, certain landowners convened a meeting. The meeting expressed frustration over how the variation was done and received PMFC’s endorsement. The landowners then proceeded to	"elect" representatives. The meeting elected Alois Bensa as Secretary and Steven Kumusi as Chairman. The meeting resolved to elect the following representatives:

Block 1		-		Bob Namah
Block 2		-		John Wuni
Block 3		-		Willie Mason
Block 4		-		Didimus Ruben
Block 5		-		Bernard Nepe
Block 6		-		Peter Apoi

The Principal plaintiff describes himself as a landowner of the Vanimo timber Resource Project (TRP) Area, covered by Timber Permit No. 1 – 6 issued to Vanimo Forest Products in 1991. He says in his affidavit he has been authorized by the landowners to bring these proceedings. It is interesting to note that his name is not mentioned in the Minutes of the Landowners Meeting and was not elected as a representative.

The Plaintiff’s challenge to the second decision is based on his claim that the real or true landowners were not represented at the meeting. Mr Baniyamai submits the Meeting was not duly constituted in that the resource owners did not attend that meeting. The true resource owners were the ones who were elected at the meeting on the 27 August 2002. Only Bernard Nepe who attended the meeting was elected. Assuming Mr. Nepe was duly selected, the second landowner is still wanting. He submits the second meeting was no better than the first meeting. He submits the persons who attended the meeting were not elected representatives as implied by the word "selected" in S.28(3). It is submitted Damien Tan was in fact from Block 6 and not from Block 3. Fidelis Riri is from Block 5 and not from Block 4. Also there was no representative from Blocks 1, 2, 3,and 4. All the persons who were present were from Blocks 5 and 6. Even then, they were not authorized or elected by the majority of the resource owners of Block 5 and 6. He submits S.28(3) imposes a mandatory requirement and a meeting resolution reached against the mandatory requirements of S.28(3) is an error of law and it is invalid.

Mr. Shepherd makes three main submissions. First, the Plaintiff lacks standing to bring these proceedings. There is no evidence to corroborate his story that he is a landowner of the forest resource area. There is no evidence to show that the other plaintiffs authorized him to institute these proceedings on their behalf. Even then, the names of the plaintiffs are not disclosed: Eliakim Laki & Ors v Maurice Alakuku (2001) N2001. There is also no corroborative evidence to show he is a resource owner of the resource area covered in the TRP.

Secondly, he submits there has been undue delay in applying for certiorari. The leave application was filed ten (10) months after the decision and even when leave was granted, it has taken about two (2) years to bring the application. This delay is prejudicial to the good administration of the Act. The application should be refused under O 16 r 4: An Ex parte application of Eric Gurupa (1990) N856 (Doherty J) and NTN Pty Ltd v The Board of PTC [1987] PNGLR 70.

Thirdly, there is no evidence to show that the PFMC acted in excess of its authority conferred by S.28(3). The landowners of the resource area were represented by more than two (2) and up to five (5) persons and they made their views known and the committee made its decision. The Committee was not required to enquire into whether they were duly selected by the landowners. The Committee was conscious of the fact that in its first meeting, the landowners were not represented and an awareness campaign was conducted by Provincial Forest officers. The landowners were aware of the need to be represented at the second meeting. There is no requirement under S.28(3) for more than two (2) landowners from each of the 6 blocks covered in the TRP to be present at the meeting. The requirement was for two (2) representatives from the whole TRP area. These matters are deposed to in Ms Caroline Jaruga’s affidavit sworn on 8 December 2004. She is the Senior Legal Officer from the Second Defendant and she attended the meeting. Her evidence should be accepted.

The first issue is whether the Plaintiff has standing either in his own right or in a representative capacity, to bring this application. This issue would have been addressed at the leave application stage as submitted by Mr. Baniyamai. I consider this issue to be irrelevant.

The second issue is on delay. I also consider the issue to be irrelevant. Under O 16 r 4(1), the issue of delay is relevant when considering the relief, which may prejudice the good administration of the Forestry Act. I am informed that the implementation of the resolution sought to be reviewed has been put on hold voluntarily by the board pending the determination of these proceedings. Therefore, I do not consider any delay in bringing this application as affecting the good administration of the Act. In any case, I am satisfied with the explanation for the delay given by Mr Baniyamai in making the leave application and the substantive application.

That brings me to the final issue. That is whether the second meeting was conducted in compliance with S.28(3) of the Act. This issue requires interpretation of two phrases or words in S.28(3). They are the phrase "owners of that particular forest resource" and the word "select". 

It is necessary to first look at the scheme of the Act to ascertain the Parliament’s intention. The Act prescribes the procedure for the meeting in extensive detail and in many respects in mandatory terms. A good example is S.28 which provides:

"(1)	At a meeting of a Provincial Forest Management Committee—
(a)	four members constitute a quorum; and
(b)	the Chairman shall preside, but, if the Chairman is absent, the members present shall appoint a Chairman for the meeting from among their own number; and
(c)	matters arising shall be decided by a majority of the votes of the members present and voting; and
(d)	the person presiding has a deliberative, and in the even of an equality of votes on any matter, also a casting vote.

(2)	A Provincial Forest Management Committee shall cause minutes of its meetings to be recorded and kept.

(3)	Where a Provincial Forest Management Committee is deliberating in respect of a particular forest resource, the owners of that particular forest resource shall be entitled to be represented at the meeting of the Provincial Forest Management Committee by two of their number selected by them, who shall be entitled to take part in the deliberations but shall not be entitled to vote.

(4)	Subject to this Act, the procedures of a Provincial Forest Management Committee are as determined by that Provincial Forest Management Committee." (my emphasis).

By convention, the procedure for meetings of statutory committees or bodies is an internal matter which is left to the Committee to decide. But when a statute goes to great length to prescribe meeting procedures in detail and in mandatory terms, there is a purpose. The Parliament considers that subject matter to be important and that any decision arrived at in a meeting must be done through a process in which all key stakeholders’ views are represented and carefully considered and a proper and acceptable decision is made which will cater for the best interest of all stakeholders. If a statutory provision prescribes the procedure in mandatory terms, the action taken must be in strict compliance with the mandatory requirements. Except as expressly authorized by the Act, it is not a matter of discretion for the statutory body to elect to waive, dispense with or ignore them. Any decision made in breach of the mandatory statutory requirements is therefore an error of law or ultra vires and made in excess of jurisdiction and therefore invalid. Both parties do not contest these principles.

In the present case, much turns on the construction of the phrase "owners of that particular forest resource" and the word "selected" in S.28(3). The first phrase is not defined in the Act. The definition of "project area" in S.1 may provide some guide. A project area is defined as: "(b) in relation to a timber permit in the area in respect of which the timber permit is granted." And so the "particular forest resource" could refer to the timber resource situated in the project area covered by the TRP. In the present case, the TRP covers 6 blocks of land area where timber resource is found. Therefore, it is the particular TRP area that should be represented by two persons and not 2 persons for each of the 6 blocks. I accept Miss Jaruga’s evidence that the resource area is the totals area covered under the TRP and not each individual block. For this reason I find that more than two (2) persons from the resource project area, covered in the TRP were present at the meeting, in compliance with S.28(3).

The word "selected" is also not defined in the Act. The word "selected" means "to choose something" or someone from a group of people: Oxford, Advanced Learner’s Dictionary 6th Edition. The process of selecting a resource owner is not prescribed by the Act either. It could mean a process of "selection" through election, appointment, by consensus or through other methods. It is up to the landowners to choose the appropriate method of "selection". The Forestry officers and the Committee has no say in the manner of selection and the persons who are selected.

There is no requirement in S.28(3) for the two (2) or more representatives who attend the meeting to be subjected to scrutiny by the Committee to verify or certify their true representative capacity. Nevertheless, unless there is some evidence or information before the Committee which raises questions requiring the representative capacity of the two landowner representatives present at the meeting, the Committee is under no statutory duty to verify the representative capacity of the two representatives present.

In the present case, these six (6) landowners were there in the meeting as a result of some selection process by the resource owners after they were briefed and informed during the awareness campaign conducted by Forestry officers. Their representative capacity would have been verified by the landowners and Provincial Forestry officials before they were allowed to attend the meeting. No question arose in relation to their representative capacity. The Committee accepted their representative capacity and no issue arose in respect of them. I am satisfied that they did represent the resource owners of the project area covered by the TRP and heard by the Committee before a decision was made. The subsequent meeting of landowners which took place, the Minutes of which are in evidence, is not verified by evidence form any of the persons elected or appointed in that meeting including the Secretary and the Chairman. The identity of all the persons who attended the meeting are also not known. The Plaintiff did not attend that meeting. The Minutes are hearsay. I would not give much weight to those Minutes. 

For these reasons, I am not satisfied that the Applicant has proven its case, on the balance of probabilities standard, that the persons who attended the second meeting were not duly "selected" by the resource owners. I find that the six (6) landowners present at the Committee meeting met the requirements of S.28(3). I find that the meeting of 1 July 2002 was conducted in compliance with S.28(3). But I also find that the meeting of 14 July 2001 was conducted in breach of S.28(3). The end result is that the decision made by the Committee on 1 July 2002 is valid and binding and it supersedes the Committee decision of January 2001. For these reasons, I dismiss the application. I will now hear counsel on the question of costs.
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Lawyer for the Plaintiff			:	Allans Lawyers
Lawyer for the Defendants			:	Blake Dawson Waldron Lawyers