Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Barrick (Niugini) Ltd v Porgera Landowners' Association [2014] PGNC 376; N6949 (5 November 2014)

N6949

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 370 OF 2014

BETWEEN:
BARRICK (NIUGINI)
LIMITED
Plaintiff

AND:

PORGERA LANDOWNERS’
ASSOCIATION
First Defendant

AND:
MARK TONY EKAPA
Second Defendant

Waigani: Hartshorn J

2014: July 8^th

: November 5^th

WHETHER MEDIATION OF PROCEEDING SHOULD BE DISPENSED WITH – Rules 4 (2)(a) and (4) and Rule 5 (3) ADR Rules considered

Counsel:

Mrs. G. Elai, for the Plaintiff
Ms. J Nandape, for the Defendant

5^th November, 2014

1. HARTSHORN J: This matter returned to court for a directions hearing after being adjourned for that purpose on 27^th June 2014. At that time there was representation on behalf of the first defendant, the Porgera Landowners’ Association but not the second defendant, Mr. Ekapa.
   

2. Counsel for the plaintiff Barrick (Niugini) Limited (Barrick) informed the court that proposed directions could not be agreed as Barrick and Mr. Ekapa disagreed on a proposal by Mr. Ekapa for the matter to be referred to mediation. I then heard both counsel on whether the matter should be referred to mediation or whether Barrick should be given leave to proceed with the proceeding without it being mediated pursuant to Rule 4 (2) (a) ADR Rules.

3. I am satisfied that this court is able to consider these issues and make directions in the absence of a notice of motion seeking that relief pursuant to Order 10A Rules 16 and 17 National Court Rules which relevantly provide:

“16. The Commercial List Judge may make such orders or give such directions as are appropriate to ensure the just, efficient and expeditious disposal of cases on the list.

17. At the first directions hearing orders will be made and directions given with a view to the just, quick and cheap disposal of the proceedings. ......”

4. Counsel for Mr. Ekapa submitted that the matter should be mediated so that amongst others, the proposed revised Porgera Memorandum of Agreement can be considered and also the issues of landowner relocation and resettlement. The affidavits of Mark Tony Ekapa and Maso Mangape both filed 10^th June 2014 were read and relied upon.

5. Counsel for Mr. Ekapa also informed the court that the defendants did not take issue with the following declaratory relief sought by Barrick:

“1. A declaration that as holder of a Special Mining Lease referred to as the Porgera Special Mining Lease No.1 issued under the Mining Act 1992 the Act), the Plaintiff is entitled pursuant to section 41 and section 37 of the Act to exclusive occupancy for mining purposes of the land in respect of which a Special Mining Lease was granted.

2. A declaration that as holder of a Special Mining Lease, the Plaintiff is entitled pursuant to section 41 and section 37 of the Act to carry out such operations and undertake such works as may be necessary or expedient for the purposes of mining for which the Special Mining Lease was granted to it.”

6. Counsel for Mr. Ekapa also submitted that Barrick must show that it has a meritorious claim that does not require mediation.

7. Counsel for Barrick submitted that it was not appropriate for the matter to be referred to mediation as:

a) This proceeding was commenced because the defendants or persons on their behalf had sent letters threatening to close down the mine. Injunctive relief has been granted restraining amongst others, such actions, until the trial of the matter and now counsel for Mr. Ekapa has informed the court that the defendants do not take issue with the two declarations sought by Barrick. So as the issues in the proceeding have been addressed and it would appear are not opposed by the defendants, mediation of the issues in this proceeding would serve no purpose;

b) A mediation would permit issues that are not raised by Barrick in the proceeding, to be considered, such as whether Barrick should be a party to the revised Porgera Memorandum of Agreement. This could prejudice Barrick as such issues involve other bodies or entities that are not parties to this proceeding;

c) This proceeding concerns issues in the originating summons that are between Barrick and the defendants’ only and no other persons;

d) Barrick had informed the defendants’ counsel that the relief sought in the originating summons concerning trespass would not be pursued.

Consideration

8. I am mindful of Rule 4 (4) ADR Rules which is:

“(4) In determining whether to order mediation and the appointment of a mediator or to dispense with the requirement for mediation, the Court shall take into account the matters set out in Rule 5 (3).”

9. One of the factors of which the court shall have regard is, “the nature of the relief sought and the suitability of a mediation result.”

10. In this instance the relief sought by Barrick, apart from the declaratory relief, is a permanent injunction restraining the defendants from preventing Barrick from carrying out its mining activities on land in respect of which Barrick holds a Special Mining Lease. Further, a permanent injunction is sought restraining the defendants from intimidating, assaulting or interfering with servants or agents of Barrick from carrying out mining activities. This injunctive relief is ancillary to the two declarations sought.

11. This relief does not concern whether Barrick should be a party to a Memorandum of Agreement and does not concern whether landowners should be resettled – the issues that counsel for Mr. Ekapa submitted should or would be considered at mediation.

12. The relief claimed, including the declaratory relief, is concerned with Barrick and its servants and agents being entitled to, and having exclusive access to, certain areas and being able to mine in certain areas. As has been referred to, counsel for Mr. Ekapa has informed the court that the defendants do not take issue with this.

13. So when regard is had to the nature of the relief sought and the suitability of a mediated result, in my view a mediation is not necessary as the issues raised by Mr. Ekapa are not issues in this proceeding, the defendants do not contest what Barrick claims in this proceeding, and so there is no issue in this proceeding that requires mediating.

14. Another factor in Rule 5 (3) ADR Rules is, “whether the mediation will result in prejudice to the rights of any of the parties.”

15. In this instance, I am satisfied that prejudice is likely to be caused to the rights of Barrick, as issues not in this proceeding, and involving other entities, will be raised and discussed at mediation. Barrick commenced this proceeding because of threats to close its mine. It did not commence this proceeding because of disputes concerning a Memorandum of Agreement and whether landowners should be resettled. If the defendants have grievances concerning those other issues, they are at liberty to commence proceedings in that regard.

16. The above factors in my view are the main ones for consideration as they relate to a particular proceeding and whether mediation should be ordered.

17. As to Mr. Ekapa’s submission that Barrick must show that it has a meritorious case, to my mind, the fact that interim injunctive relief has been granted by this court (not by me) and that Mr. Ekapa’s counsel has informed the court that the defendants do not take issue with the declaratory relief sought by Barrick, is sufficient for the court to be satisfied as to the merits of Barrick’s case.

18. I am satisfied for the above reasons and pursuant to Rule 5 (3) (i) ADR Rules that the interests of justice in the particular circumstances of this case require that the proceeding proceed without it being referred for mediation.

Orders

19. The Orders of the court are:

a) The plaintiff is granted leave to proceed to take further steps in the proceeding pursuant to Rule 4 (2) (a) ADR Rules;

b) This matter shall not be mediated;

c) I will hear parties as to directions to be made for the further progression of this proceeding;

d) The costs of the hearing on 8^th July 2014 are reserved;

e) Time is abridged.
__________________________________________________________________
Office of Barrick (Niugini) Limited: Lawyers for the Plaintiff
Mawa Lawyers: Lawyers for the First Defendant
Nandape & Associates Lawyers: Lawyers for the Second Defendant