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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 756 of 2015
BETWEEN
ALEX BERNARD for himself as P’nyang LNG Project Area Landowner and on behalf of his Wokflyak Clan of Kayangabip Village
First Plaintiff
AND
P’NYANG RESOURCES ASSOCIATION INC. (5-338380)
Second Plaintiff
AND
HON. NIXON DUBAN, MP, Minister for Department of Petroleum and Energy (DPE)
First Defendant
AND
MR. RENDLE RIMUA, Secretary for DEPARTMENT OF PETROLEUM and ENERGY
Second Defendant
AND
THE CHAIRMAN (Mr. RendleRimua) PETROLEUM ADVISORY BOARD
Third Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
AND
ESSO PNG P’NYANG LIMITED (EPPL)
Fifth Defendant
Waigani: Kandakasi, J.
2016: 10th February, 2nd March, 4th, 8th and 20th April and 27th May
CONSTITUTIONAL LAW – Interpretation of - Sections 115 and 116 (1) of Organic Law on Provincial and Local-level Governments – Exclusive jurisdiction in Supreme Court - National Court to refer all Constitutional questions to the Supreme Court – Supreme Court to clarify object or purpose of s. 115 and 116 (1) – Meaning and effect of words and phrases used in s. 115and s. 116 (1).
INTERLOCUTORY INJUNCTION –Principles governing grant or continuity of interim injunction considered – Obligation to disclose – Obligation on all parties -Facts peculiarly within the knowledge of party seeking to discharge interim injunction – Failure to disclose – Effect of – Serious question on meeting mandatory statutory condition precedent – Object of statutory requirements critical - Obligation on those claiming all such requirements being met to demonstrate that to the Courts satisfaction - Failure to– Effect of - Until prove of all mandatory statutory requirements have been met interim injunction warranted – Undertaking as to damages – Applicant required only to give an undertaking – No requirement for evidence supporting an undertaking to – Effect of such requirement – Deny people access to the Courts – Such requirement inappropriate to the circumstance of Papua New Guinea.
OIL & GAS DEVELOPMENT – Statutory requirements – Developer and State to fully point out relevant and applicable statutory requirements and demonstrate satisfactory meeting of all such requirements – Social mapping and landowner identification studies condition precedent to any gas development - Failure of State and developer to demonstrate meeting of a statutory condition precedent – Effect of - No social license and project not legally ready to proceed to development forum and development – Most relevant provisions - Sections 115 and 116 (1) of Organic Law on Provincial and Local-level Governments - Oil and Gas Act 1998 s. 47, 48 and 49.
STATUTORY INTERPRETATION – Oil and Gas Act 1998 – Section 47 requirement for “social mapping and landowner identification studies” – Purpose or object of requirement - What is “social mapping and landowner identification”?– Pathway to a critical component of any project “social license to operate” - Two components - Landowner identification and social mapping studies– Landowner identification studies identifying natural persons and properly incorporated land groups who own or have an interest in customary land taken up or to be taken up by a petroleum license – Social mapping study – Portraitof respective landowners groupings, with their leaderships, internal and external relationships with people and objects or sites of importance and value, what sustains them, their way of life, traditions, cultures and environment, possible impacts on them by a petroleum development and possible measures to avoid or minimise any possible harm or damage to them.
NATURAL RESOURCES DEVELOPMENT – Oil and gas developments –Condition precedent - Statutory requirements - Sections 115 and 116 (1) of Organic Law on Provincial and Local-level Government and section 47, 48, and 49 of the Oil and Gas Act 1998 in particular – National Government to consult with Provincial Governments and for National Government, Provincial governments and Local-level Governments to fully liaise with the landowners and obtain their informed and free consent through social mapping and landowner identification studies.
Papua New Guinea Cases cited:
Aloysius Eviaisa v. Sir MekereMorauta (2001) N2144.
Application by David Lambu v. Peter Ipatas and Edward Konu (The Provincial Returning Officer) and The Electoral Commission (No 3)(1999)
SC601.
Central Provincial Government v NCDC (2013) N5262
Constitutional Reference No. 1 of 1977 (Sch. 2.3.) [1978] PNGLR 295.
Eastern Highlands Provincial Government v. AitaIvarato [1998] PNGLR 268.
Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seamen’s Union (1982) N393.
Golobadana No. 35 Ltd v. Bank of South Pacific Ltd (2002) 2309.
Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N5441.
Harry Tovon&Ors v. The State & Anor (2016) N6240 (for latest judgment on point).
John Kekeno v Philip Undialu (2015) SC1428.
Kerry Lero trading as Hulu Hara Investments Ltd v. Philip Stagg (2006) N395.
Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404.
Michael Kuman v Digicel (PNG) Ltd (2013) SC1232.
Mune v. Anderson Agiru&Ors (1998) SC590.
Odata v. Ambusa Copra Oil Mill and National Provident Fund Board (2001) N2106.
Orosa Pogu v. The State [1986] PNGLR 203
Pepi Kimas v. Boera Development Corporation Ltd (2012) SC1172.
Philip Takori v. Simon Yagari (2008) SC905.
Rage Augerea v. The Bank South Pacific Ltd (2007) SC869.
SalamoElema v Pacific MMI Insurance Ltd (2007) SC1321.
SCR No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265.
Sekesu Sisapi Land Group (Inc) v.Turama Forest Industries Ltd (2008) SC976.
Simon Ekanda&Ors v. RendleRimua&Ors (2015) N6174.
Sioti Bauf and LavoiNodai v. Poliamba Pty Ltd [1990] PNGLR 278.
Sir Julius Chan v. The Ombudsman Commission (1998) N1738.
Simon Mali v. The State (2002) SC690.
Tigam Malewo v. Keith Faulkner (2009) SC960.
Telikom PNG Limited v. ICCC &Digicel (PNG) Limited (2007) N3144.
Telikom PNG Ltd v ICCC (2008) SC906.
Overseas Cases cited:
Donnelly v. Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570.
Counsel:
J. Kolo, for the First and Second Plaintiffs.
P. Mawa, for the First Defendant.
F. Barton, for the Second, Third and Fourth and Defendants.
A. Mana, K. Imako and I. Molloy, for the Fifth Defendant
27thMay, 2016
1. KANDAKASI J: Alex Bernard claims he is a customary landowner and representative of his people (Landowners) in the P’nyang gas fields, in the Western Province. This gas field is the subject of a LNG Project (Project) by Esso PNG P’nyang Limited[1] (Developer). The Landowners obtained an ex parte interim injunction on claims that the Developer, failed to meet requirements for a full-scale social mapping and landowner identification studies (SMLIS) under s.47 of the Oil and Gas Act 1998 (OGA).[2]The injunction stopped a development forum under s. 48 of the OGA from taking place and generally the Project. The Developer argues for the interim injunction to be lifted while the Landowners argue for its continuity.
2. The Developer is making a number of claims. First, it has met the requirements for a full-scale SMLIS under s. 47 of the OGA. Second, the Minister for Petroleum and Energy (the Minister) has accepted its SMLIS report and issued a determination (Ministerial Determination) under s. 169A. Third, it progressed to organizing a development forum at a total cost of over K20 million. Fourth, the Landowners lack standing, there is no arguable case and the balance of convenience does not favour an injunction, there is no irreparable damage which the injunction seeks to protect and the landowners have no means to support their undertaking as to damages. The Second, Third and Fourth Defendants’ (the State) say the Project is not ready to progress to development because the Developer has not met certain minimum statutory requirements.
Relevant Issues
3. There is one main question presented here. Have the Landowners made out a case for continuity of the interim injunction? An answer to that question is dependent on answers to the following questions in order of importance:
(1) Is there an arguable case?
(2) Has the Developer met the requirements of s. 47 of the OGA for a full-scale SMLIS and other requirements to progress to a petroleum development license?
(3) Have the Landowners met the other requirements for a grant of an interim injunction and its continuity?
4. As an answer to the second question will help answer the first question, I will deal with these questions together. A number of other important questions arise but they come within the foregoing questions. Hence, they will be raised and answered within the relevant context.
Is there an arguable case? - (1) Relevant Facts
5. Turning first to the first main question, I note an answer to this question is dependent on the relevant facts and the law. For the facts, I note that, following discovery of liquefied natural gas (LNG) in the remote P’nyang area in the Western Province, the Developer took steps to progress it into a petroleum development project. The Developer is part of the PNG LNG Project and is the operator of a Petroleum Retention License (PRL), PRL3. On 6th February 2015, it applied to the Department of Petroleum and Energy (DPE) to convert PLR3 into a Petroleum Development License (PDL). It also submitted an application for two Pipeline License (PL) to convey gas from the P’nyang gas field to its existing infrastructure in the Southern Highlands Province. The Developer claims, on 22nd March 2012, the DPE reviewed its proposed SMLIS scope and methodology. Further, it claims it appointed Doctors Lawrence Goldman, Garrick Hitchcock, James Weiner and Mark Schubert to conduct the SMLIS.
6. Through an affidavit by Dr. Hitchcock sworn 17th and filed on 18th December 2015, the Developer makes a number of claims. First, the main field work research took a total of 151 days from June 2013 to August 2014 covering 61 villages in the PRL3 license areas and associated pipeline corridor. This required Dr. Hitchcock staying in each village for a maximum of three (3) nights before returning to a designated base camp. If he did not finish his work in a village within the three (3) days period, he returned to the village following one (1) night of rest in a base camp. Second, introductory public meetings were undertaken at the villages. At these meetings, the work to be done was explained. A majority of the community were present at such meetings. Translators which included Oil Search community affairs staff, National employees of Coffey Environments, and local people fluent in English and/or Tok Pisin, assisted with communication at the meetings. Third, with the assistance of clan members, their land were mapped with reference to topographic maps, visible landmarks, maps sketched by the people themselves and earlier maps showing village locations, such as those found in the reports of colonial era patrol officers. This was to create a map showing the appropriate land holdings of each clan or group. Fourth, on occasions, Global Position System (GPS) were used to determine the location of a noticeable landmark or agreed boundary between two clans. Fifth, migration stories were obtained from each clan. These helped with understanding and interpreting the peoples’ claims to landownership. Sixth, a full genealogy of clan members going back as far as they can remember in terms of their family trees were done. The genealogies identified the clans or groups and where individuals have been in the landscape over time. Seventh, typically, community members asked the study team that they do their work separately, that is, with one clan at a time.
7. Furthermore, Dr. Hitchcock says, he allowed himself to be guided by a draft regulation under the Oil & Gas Act 1998 pertaining to the requirements of full scale SMLIS and the terms of reference. He goes on to say, he asked other questions, such as villager’s forms of leadership, how they resolve disputes, and other relevant cultural issues. For the purposes of the SMLIS, Dr. Hitchcock says, he used Geographical Information System (GIS) software and GPS units. GIS and GPS assisted him to produced maps of areas of land being claimed by individual clans or groups, showing their approximate boundaries.
8. It is claimed further that, a Dr. Linus digim’Rina,[3] senior lecturer and head of division, department of anthropology, sociology and archaeology at the University of Papua New Guinea conducted an infield peer review of Dr. Hitchcock’s work. It is also claimed that, Dr.digim’Rina wrote a report that was appended to Dr. Hitchcock’s PRL3 SMLIS report. Further, it is claimed that the SMLIS report consisted of three detailed reports covering each of the PRL3 area, the northern pipeline area and the southern pipeline area. Dr. Hitchcock believes these reports were submitted by the developer to the DPE on 18th November 2014.He also believes that an independent anthropologist, Rodney Kameata, was engaged by the DPE to review and prepare a report on the three SMLIS reports. That he believes was done resulting in the DPE accepting all the reports.
9. The Developer has not produced any evidence supporting its claim of having spent K20 million with a disclosure of what exactly these large sums of money was spent on. Similarly, its witnesses had the duty to produce the primary evidence in terms of the copies of the various documents referred to in Dr. Hitchcock’s affidavit. In particular, the witnesses failed to produce copies of documents evidencing:
(1) the SMLIS reports;
(2) the 22nd March 2012 review by DPE of his proposed SMLIS scope and methodology and any approval of it;
(3) the appointment of the SMLIS team and team leaders;
(4) schedules and other documents evidencing visiting and staying at the various villages and kinds of information gathered at each location;
(5) draft regulation under the OGA;
(6) Dr.digim’Rina peer review report covering the SMLIS reports;
(7) DPE’s engagement and Rodney Kameata’s report and DPE’s acceptance of it;
(8) list of persons spoken to or interviewed;
(9) samples of questions put to persons or spoken to or interviewed;
(10) samples of genealogies given and or obtained from the people;
(11) samples of maps created with a clear indication of each of peoples and their groups existence, their land boundaries and matters of common interests, important landmarks and sites and any sacred or other such areas for the whole or parts of the people in the license areas; and
(12) sample of list of names under their respective families, sub-clans and clans and tribes, their leaders and their land boundaries.
10. In the absence of the kinds of evidence outlined above, the Developer through its witnesses should have disclosed what exactly is in the reports and the other documents. Without the assistance of the primary or best secondary evidence, it is impossible to conclude that the SMLIS reports are complete with integrity and are satisfactory for the purposes of s. 47 and other provisions that a dependant on the accuracy of properly conducted and completed SMLISs.
11. The then Secretary for the DPE, Mr. Rendle Rimua deposed to an affidavit on 30th December 2016. Makap Lawyers in anticipation of instructions from the State filed that affidavit on 13th January 2016. That did not happen in accordance with the set process and procedure. The set process as is confirmed by the Solicitor General is that, a recommendation for a brief out would emanate from her office to the Attorney General who would then consider and if in order, do a brief out. That did not happen here. On that information, I ruled on 15th January 2016, that all steps or actions taken by Makap Lawyers are null and void and of no effect. That included the affidavit of Mr. Rimua sworn on 30th December 2015. Hence, that affidavit is not open for any consideration by this Court. Subsequently, Mr. Rimua deposed to another affidavit on 10th February 2016. His evidence is that, the State has set up a State Team for the Project and the team is yet to properly align itself to consider the Developer’s application for a PDL. He also says certain of the relevant administrative processes and reviews are yet to be completed.
12. The Solicitor General, Ms. Faith Barton-Keene deposed to two affidavits. The first was sworn on 9th February 2016, which speaks in support of Mr. Rimua. The second was handed up in court at the hearing. In the second affidavit, she speaks of two National Executive Council (NEC) decisions. The first decision is decision No.297 of 2015. That decision decided to create a State negotiating team for the Project. The second decision is No. 386 of 2015, which decided against a grant of the PDL applied for by the Developer and outlines reasons for that. Those reasons are essentially non-compliance of certain minimum statutory requirements. The decision also points out that, the Developer’s application does not commit to a specific Field Development Plan for the State to consider. This in itself contradicts minimum statutory requirements for the grant of a PDL. In particular, under s. 54 (1) (c), the developer’s application should contain a detailed proposal for development and recovery of petroleum within the license area. Further, the developer’s proposal does not meet other statutory requirements for the developer to commit to a set of economic outcomes which would allow the State to assess its “take” including amongst others tax revenue, equity dividend flows to the Provincial and Local Level Governments and project area landowners in accordance with the OGA. Instead of meeting these requirements, the Developer proposes that the development of the P’nyang field is contingent on further appraisal, or recertification of the resources after drilling another well and on revaluation of the economics of the Project. The second NEC decision then sets out a number of options to be negotiated with the Developer.
13. The Plaintiffs through Mr. Bernard’s affidavit filed on 25th November 2015, agree Dr. Hitchcock and his team did conduct the studies in some of the villages. But that was not all of the villages. The study team spent only a small amount of time at each of the places they visited. This was contributed to by adverse weather and the remoteness of the area. He says further that, rather than visiting all of the villages and the respective villagers and hearing directly from the people, the study team heard from third parties and did their reports. Additionally, he says the study team did not hear directly from the people on their genealogy, the number of clans within the well heads and other potential sites and clans living within the peripheral to project sites but share common boundaries and traditional ties with his people. Then through the affidavit of Hon. James Donald sworn and filed on 30th November 2015, the Landowners say the information the study team gathered were not sought to be and in fact not verified by the various leaderships at the village, respective council wards, district and provincial levels.
(2) Full scale social mapping and landowner studies
14. To properly determine the question, is there an arguable case, it is important to understand what is meant by the phrase “full-scale social mapping and landowner studies” as used by s. 47 and other provisions of the OGA. This has to be within the context of the entire legal framework for LNG development in the country. That in turn is necessary to properly guide and assist the Court to stay within the purpose and object of the relevant and applicable legislation and determine if the various legal requirements have been met by the Developer. Accordingly, I called on all counsel and they did assist me with their respective submissions. Considering any particular legislative provision in isolation comes with the danger of the Court failing to uphold the purpose or object of the legislation. It is settled law that a Court must be guided by the legislative purpose or object in order to do justice. The position is almost unique to Papua New Guinea as my brother Cannings J.[4], beautifully sums it up:
“54. Judges should not be treated like racehorses fitted with blinkers, forced to read only the literal meaning of words without considering the purpose of the legislation in which the words appear.
55. There are very clear and overriding constitutional reasons that Judges in Papua New Guinea must consider not only the plain and literal meaning of the words of a statute but also their purpose and effect ...
56. ... Judges in Papua New Guinea are given a breathtaking array of powers, functions, duties and responsibilities not clothed upon Judges in many other jurisdictions, including those in the Commonwealth. The Constitution provides insight, inspiration and instructions as to how these daunting tasks are to be achieved. Two provisions of the Constitution are particularly pertinent. Section 109(4) (general power of law-making) states:
‘Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.’”
15. There are provisions in the Constitution and Organic Law on Provincial and Local-level Government (the Organic Law) that are relevant. Going by the hierarchy of laws under s. 9 of the Constitution, these are the highest laws in our country. It is important to ensure that all answers to the questions before this Court give meaning and effect to the Constitutional provisions and the other relevant and applicable legislative provisions such as those under the OGA.
(3) Preliminary Ruling
16. On a preliminary note, learned counsel for the Developer, Mr. Mana argued against the Court considering the entire legal framework. He preferred a restricted consideration of s. 47. His main reason for that was that, the Landowners did not plead any other provisions of the OGA, the Constitution, the Organic Law or any other law. I ruled against that argument. I reasoned that, in order to support his argument, Mr. Mana had the duty to assist the Court with relevant cases or any provisions in the National Court Rules(the Rules) or any other legislation supporting his proposition. That counsel failed to do.
17. Without Mr. Mana’s assistance, I noted the term “plead” or “pleading” in the context of proceedings in the National Court is common place for proceedings commenced by writs of summons and not originating summons.[5]The provisions of O.8, r.1 confirm this. I also noted that, it is settled law that pleadings should only succinctly state the relevant facts and not the evidence or the law. This is a well-accepted legal principle in all jurisdictions having a legal system similar to ours, and because of that there is no case law conclusively providing to the contrary.[6]The only exception there is where a law specifically requires the law to be pleaded. Such exceptions are extremely rear.
18. Further, I noted that Order 4 of the Rules provide for proceedings commenced by origination summons. These provisions contain no provision requiring pleadings for proceedings commenced by originating summons. But, there is provision for a proceeding to continue on pleadings in certain cases with leave of the Court under O.4, r. 35. This means pleadings are not required in proceedings commence by originating summons unless the Court orders for the proceedings to continue by pleadings.
19. In the end, I said correctly the law does not require a party to plead the law. This is because it is always open to the Court to consider and apply all relevant and applicable law be it case law or, any statutory provision or anything that has the force of law. I further noted that, indeed the law requires all lawyers appearing before a Court to assist the Court by inter alia, drawing to the Courts attention cases and statutory authorities that might be applicable. That includes even the ones that goes against a lawyer’s client. I cited the decisions of the Supreme Court in Salamo Elema v Pacific MMI Insurance Ltd[7]and its earlier decision in Orosa Pogu v. The State[8]as the cases on point.
20. I ultimately concluded that, the effect of Mr. Mana’s submission was to shut the Court out from considering any relevant provisions of the Organic Law, the OGA, any other legislation or any other law that might have a say on what is before the Court. I pointed out too that, after considering all the relevant and applicable law, the Court has the ultimate power to decide what law applies, in what way, when, where and how. Counsel’s duty is to assist the Court with submissions that help provide answers to these questions and not to shut the Court out from considering the relevant and applicable, Constitutional, and other legislation and any case law. Accordingly, I ruled that all of the relevant provisions from the Constitution to OGA and any other legislation and any case law are open for the Court’s consideration before its final decision.
(4) Legal framework for petroleum related development
21. The legal framework for petroleum related development in PNG is found in certain provisions of the Constitution, the Organic Law on Provincial Governments and Local-level Governments, the OGA and other relevant legislation and judgments or decision of the Courts. Our focus is on the steps that must be taken and be in place before a development forum under s. 48 of the OGA. In brief, a petroleum development commences with a Petroleum Prospecting License (PPL)[9] from which it can lead to a PDL[10]or PRL[11]first and then a PDL. There are two additional licenses, namely a Pipeline License (PL) under s. 74 for petroleum development related pipelines and a Petroleum Processing Facilities License (PPFL) under s. 88 for petroleum processing facilities. Getting to a PDL is conditional on meeting all the relevant requirements of the OGA including most importantly the requirements for SMLIS under s. 47 and the requirements of other legislation such as the Environment Act 2000, for environmental Permits under Part V of that Act.
22. In detail, I note it is important that the question of what is the relevant legal framework for petroleum related development in the country must start with the country’s Constitution. This is dictated by its supremacy pursuant to s. 9 of the Constitution. The founding fathers of the Constitution considered it important that the country’s development and future should be guide by a set of national goals and directive principles. These are set out in the very beginning of the Constitution in its preamble. For our purposes, goal and directive numbers4 and 5 are relevant. They in relevant parts read:
“4. Natural resources and environment
We declare our fourth goal to be for Papua New Guinea's natural resources and environment to be conserved and used for the collective benefit of us all, and be replenished for the benefit of future generations.
WE ACCORDINGLY CALL FOR—
(1) wise use to be made of our natural resources and the environment...in the interests of our development and in trust for future generations; and
(2) the conservation and replenishment, for the benefit of ourselves and posterity, of the environment and its sacred, scenic, and historical qualities; and
(3) all necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees.”
...
“5. Papua New Guinean ways.
We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization.
WE ACCORDINGLY CALL FOR—
.....
(3) recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and
(4) traditional villages and communities to remain as viable units of Papua New Guinean society, and for active steps to be taken to improve
their cultural, social, economic and ethical quality.”
(Underlining added)
23. The founders of the Constitution saw the value in the traditional PNG ways of life and culture and saw the need to preserve the “traditional villages and communities ... as viable units of Papua New Guinean society” where the traditions and cultures could be preserved and kept alive. They saw that our natural resources and environments are key ingredients to sustaining our peoples. Hence, they called “for active steps to be taken to” protect, conserve and build upon them. There is also a call in goal and directive number 2 “for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country”. These goals and directive principles are of course non justiciable. Nevertheless, they are serious and important principles. They are to guide government, policy and all other decision makers, including the Courts for the betterment and the future of our peoples, their cultures, traditions, societies and environments[12] as against the pressures development and a modern PNG can impose upon our people.
24. The provisions of ss. 44, 45, 48, 49, 51 and 53 of the Constitution add value, in my view, to the National Goals and Directive Principles. Subject to a valid written law, s. 44 provides for protection against any arbitrary search and entry of a person’s person and property. That is additional to the guarantee of privacy by s. 49. Section 45 guarantees persons their freedom of conscience, thought and religion, which can be best practiced in their own cultural and environmental settings. Section 48 gives all persons the freedom to be employed in whatever way, manner and form they choose. Not every person is employable in the formal sector. Most people in PNG keep themselves employed in their own cultural settings and environments, in their gardens or bushes or sea to sustain themselves. This makes the provisions dealing with the natural resources and the environment critically important.
25. Sections 51 and 53 provide for rights that are available only for citizens. The first concerns a citizen’s right to official documents unless they fall under any of the exceptions listed in s. 51 (1) (a) – (j). Section 53 then provides against any compulsory acquisition or taking away or taking possession or ownership of a citizen’s land except as are permitted by the rest of the section.
26. Upholding of a citizen’s right and freedom requires good governance at all levels of government, from the national to the provinces and from there to the districts and the local communities. The Organic Law on Provincial Governments and Local-level Governments is in that context, a very important constitutional law. It devolves some government power and function from the National Government to the Provincial, District, Local and Community levels. This is apparent from the provisions of s. 29 as to the composition of provincial governments, its law making powers under s. 42 and that of local level governments in s. 44. The Organic Law as a whole and specifically through the provisions mentioned, empowers governments at the provincial, district and local levels to make laws to enable and enhance the provisions already made in the Constitution. The sum effect of all these is to give effect to the national goals and directive principles for the current and future existence and interest of the country.
27. Division 3, consisting of ss. 115 - 116 of Part V of the Organic Law, is devoted to the control of natural resources based developments. These provisions in so far as they are relevant read as follows:
[Section 98 (1)]
“‘natural resource’ includes minerals, petroleum, gas, marine products, water, timber (including forest products), fauna, flora and any other product determined by law to be a natural resource.”
...
[Section 115]
“115. Control of natural resources.
(1) Where there is a proposal to develop a natural resource in a province or provinces, the appropriate National Minister designated by the National Executive Council shall consult with the Provincial Government in the province or provinces where the natural resource is situated.
(2) The National Government, and the Provincial Governments and the Local-level Governments in the province or provinces where the natural resource is situated, shall liaise fully with the landowners in relation to the development of the natural resources.
(3) In this section, unless the contrary intention appears, ‘natural resource’ has the same meaning as it has in Section
98.”
...
[Section 116]
“116. Resource development process
(1) For the purposes of Section 115, an Act of the Parliament shall make provision for—
(a) the type or types of development to which Section 115 applies; and
(b) the consultation process; and
(c) the establishment of natural resource development forums and the procedures of the forums; and
(d) the extent to which the parties may participate in the development of the natural resources; and
(e) such other matters relating to the subject as are necessary.”
(Underlining added)
28. The OGA is an Act enacted pursuant to the provisions of s. 119 “for the purposes of s. 115”. Clearly, s.115 of the Organic Law is a critically important provision. It creates a pathway through which both a developer and the National, Provincial and the other levels of government can engage with and inform the affected landowners of what is proposed to happen on their land, their natural resources and their other rights and freedoms. The people need to be informed in particular of what any such development means for them, how their lives and way of life may be affected and what steps and measures can be taken to safeguard their rights and interests and ensure there is as little damage or harm done to their environment, cultures, traditions and their livelihood and their way of life. Also and more importantly, they need to be informed as to how the project will benefit them. This process is necessary to seek and secure the free and informed consent of the landowners and most importantly their support which is a critical must for both the short and long term security of a proposed development project. Even if this is not required by law, it makes much economic and business sense and prudent to ensure this is done.
29. Currently, in the world of doing business intelligently and smartly, the need to engage and secure the continuous support of the community for both the short and long term security of large commercial undertakings has become a key factor. This is particularly important for PNG as the following statement suggests:
“Conducting large, capital-intense projects is challenging in any developing country – particularly if the local community hasn’t been thoroughly consulted from the beginning. In PNG especially, detailed and comprehensive land studies and social mapping are crucial for any project development, with failure to do so potentially resulting in serious and costly project delays for oil & gas and mining exploration investors.”[13]
30. The need to consult and secure the landowners or the community’s support for a project is accepted worldwide under the phrase “social license” or “social license to operate” (SLO). This is a critical prerequisite for any project especially, in the natural resources extractive industry. Many international businesses accept the need to obtain their “social licenses” and keep them current during the currency of their projects. A paper presented at the Pacific Energy Summit 2013defines“social license” in the following terms:
“‘Social license’ generally refers to a local community’s acceptance or approval of a company’s project or ongoing presence in an area. It is increasingly recognized by various stakeholders and communities as a prerequisite to development. The development of social license occurs outside of formal permitting or regulatory processes, and requires sustained investment by proponents to acquire and maintain social capital within the context of trust-based relationships. Often intangible and informal, social license can nevertheless be realized through a robust suite of actions centered on timely and effective communication, meaningful dialogue, and ethical and responsible behaviour.”[14]
31. Another source adds:
“On occasions, the Social License can transcend approval when a substantial portion of the community and other stakeholders
incorporate the project into their collective identity. At this lev relationship itip it is not uncommon for the community to become
advocates or defenders of the project since they consider themselves to be co-owners and emotionally vested in the future of the
project, such is the strength of self-identification.”[15]
32. Section 1 (1) of the OGA specifies the rights or freedoms provided for under the Constitution that are or may be restricted or regulated by the Act.[16] The same provision says the Act takes into account the National Goals and Directive Principles and Basic Social Obligations in particular,
the National Goal and Directive Principles on “national sovereignty and self reliance” as well as “natural resources
and environment.” Subsection 2, provides in detail that s. 53(1) (protection from unjust deprivation of property) of the Constitution, is to be affected and lists how that will be the case. Thereafter, s.1 (3) and (4) point out that, for the purposes of s. 29 and
41 of the Organic Law the OGA is made in the national interest.
33. A proper interpretation of ss. 115 and 116(1) of the Organic Lawis required. This is necessary to give proper meaning and foundation for a better understanding and giving effect to of the provisions of the OGA. Counsel for the Developer, Mr. Mana referred to Hartshorn J.’s decision in Simon Ekanda &Ors v. Rendle Rimua& Ors.[17]There, His Honour quoted the provisions of s. 115 and then dealt with the question of whether the provisions of s.115 are mandatory or directory. Ultimately, he held that the provision was directory only. In so doing, he appears to have overlooked the submissions for the plaintiffs, which he noted in these terms:
“The only other submissions made in respect of this question on behalf of the plaintiffs were in reply. These were the questions of whether s. 115 was mandatory or directory was possibly a question for the Supreme Court to determine.”(Underlining added)
34. His Honour went on to consider the question of whether an agreement made by the State under s. 184 of the OGA without complying with s. 115 of the Organic Law is void. Based on his answer to the earlier question, he answered this question in the negative. Again based on his view of s. 115 of the Organic Law, he dismissed arguments suggesting mandatory requirements with the use of the term “shall” in other important provisions of the OGA like ss. 52 (2) and 47 and gave prominence to agreements signed under s. 184 of OGA.
35. In my respectful view, His Honour assumed a power that belongs only to the Supreme Court under s. 18 of the Constitution. I tried to secure the assistance of learned counsel for the Developer, Mr. Mana, in case I was mistaken in that view. Counsel was however, reluctant to assist. He took that position in line with his position that the Landowners did not plead the provisions of s. 115. My reasons for decision in the preliminary ruling is sufficient answer to this position of counsel.
36. The provisions of ss. 115 and 116 of the Organic Law are Constitutional provisions. They require careful consideration and interpretation by the Supreme Court for two important reasons. Firstly, the National Court has no jurisdiction to interpret any provisions of the Constitution unless otherwise expressly authorized by the Constitution itself as is the case under s. 57 for the enforcement of the human rights provisions in the Constitution. By s. 18 of the Constitution that power or duty is reserved for the Supreme Court. Section 18 reads:
“18. Original interpretative jurisdiction of the Supreme Court.
(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional
Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious
or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is
appropriate.”
37. Secondly, I consider a well-considered opinion of the Supreme Court as to the purpose and or object of ss.115and116 (1) of the
Organic Law is called for. This is necessary when considering the Constitutional and legislative scheme for the use and development or extraction of natural resources as I tried to set out above. In this case, it
is oil and gas under the OGA, which makes it clear in s.1that certain of the people’s rights and freedoms stand to be affected. Given that, s. 115 of the
Organic Law appears to create a path way in association with s.116 (1) of the Organic Law and s. 47 of the OGA through which the affected customary landowners can be identified and consulted in a more meaningful way. Surely, through this process
a developer and the State could secure their “social license to operate” from the people in exchange for benefits clearly
identified and due to them. Against that background, and subject to hearing counsel, the particular questions which requires an answer
from the Supreme Court in my view are these:
(1) What is the proper meaning and effect of the following words or phrases in s. 115 of the Organic Law:
(a) “proposal to develop a natural resource” (s.115(1));
(ii) “shall consult with the Provincial Government” (s.115(1)); and
(iii) “shall liaise fully with the landowners” (s.115(2))?
(2) Does the phrase “[f]or the purposes of Section 115” in s. 116 (1) of the Organic Law render the provisions of s. 115 and its requirements important and central to the OGA and an oil or gas development?
(3) In the light of certain of the customary landowners’ rights and freedoms as listed under ss.1 of OGA stand to be affected by an oil and gas development, what is the purpose or object of s. 115 of the Organic Law?
(4) Having regard to the proper meaning and effect of s. 115 of the Organic Law, and the provisions of s. 116 (1) are the requirements to “consult with the Provincial Government” and to “liaise fully with the landowners” under s. 115 (1) and (2) respectively of the Organic Law mandatory?
(5) Does the requirement to “consult with the Provincial Governments” under s. 115 (1) of the Organic Law have the same meaning under s. 255 of the Constitution to have a “meaningful and...a genuine interchange and consideration of views” but mandatory with the use of the word “shall” before the phrase “consult with the Provincial Governments” in s.115 (1) of the Organic Law?
(6) Given that the landowner’s rights and freedoms as listed under ss.1 and 2 of the OGA would be affected by an oil and gas development, was it the legislature’s intention that the requirements under s.115 (1) and (2) of the Organic Law should be met:
(a) after a satisfactory completion of a full-scale social mapping and landowner identification study under s. 47 but before and for the purposes and events provided for under ss. 48, 49, 50 - 51 169, 169A, 170 – 171, 172 (3) and 173 (5) and 184 of the OGA? or
(b) before a satisfactory completion of a full-scale social mapping and landowner identification study under s. 47 but before and for the purposes of ss. 48, 49, 50 - 51 169, 169A, 170 – 171, 172 (3) and 173 (5) and 184 of the OGA?
(7) In view of the provisions of s. 47 and others like those of ss. 31 (2) (f), 46 (a)(iii)49 (a) and (d) and 57 (2) (b) (v), s. 63 (a) (iii) of the OGA, was it the intention of the legislature that the requirements under s. 115 of the Organic Law should be for each of the licenses, PPL, PRL, PDL, PL and PPFL under the OGA?
38. I proposed to hear counsel first on the requirements under s. 18 of the Constitution before coming to a decision on whether or not to refer these questions to the Supreme Court. Subject to that, and subject to answers to these questions, it is clear by reason of ss.115 of the Organic Law, that a Provincial Government in which there is to be an oil and gas development must be consulted by the Minister for DPE. It is also clear that the National Government, the Provincial Governments and the Local-level Governments in the Province must liaise fully with the landowners. Again subject to a referral and the Supreme Court’s answers to these questions, I am of the view that this consultation and liaising with the traditional landowners is critical and must be done at least at three major stages. These should be at the exploration, retention and development stages. The first stage would lead to the second stage and the first or second stages would lead to the third stage. They are marked by three different kinds of licenses, namely a PPL, a PRL and a PDL with where required, a PL and a PPFL.
(i) Petroleum Prospecting License
39. The initial step in any oil or gas development commences with a PPL. Also known as prospecting tenements, they come in graticular blocks.[18] Upon invitation by the Minister, applications are made to the Director[19]of the Petroleum Advisory Board (PAB)[20]for a PPL.[21] If the Minister is satisfied that an applicant has met all of relevant requirements, he grants a PPL over the block or blocks specified in the instrument of grant. This is subject to conditions specified in the instrument or such other conditions as are agreed to by the Minister and the applicant[22]and imposed by the OGA. One of the vital requirement a licensee must meet is a SMLIS under ss. 31(2)(f) and 47(1) of the OGA.
40. During its currency, a PPL confers on the licensee, an exclusive right to explore for petroleum, carry out appraisals of any petroleum discovery, carry on such operations and execute such works as are necessary for those purposes, in the licence area. This includes the construction and operation of water lines and if authorised by the Director, the completion of wells, the conduct of drill stem or extended production tests for appraisal of a petroleum pool. It also includes the construction, operation of pipes and facilities to gather and transport petroleum to a point of testing or treatment or disposal and the recovery and sale or other disposal of all petroleum so produced in accordance with the authorisations under the license.[23] Generally, a PPL is current for a period of six years commencing on the day the licence takes effect.[24]
(ii) Petroleum Retention License
41. Upon discovery of petroleum resources within a PPL area, the licensee is required to apply to the Director for the grant of a PRL. Such an application is conditional on the PPL being current for the blocks that constitute a declared location. The application must be made within two (2) years after the date on which the blocks were declared to be a location, or such further period as the Minister allows but in any case within two years before the date of expiration of a PPL. The applicant must also satisfy the Minister that, the block or blocks contain a gas field or a part of a gas field which for the better administration of petroleum activities, should be included in a petroleum retention licence.[25]Further, the applicant must satisfy the Director with sufficient proposals for work and expenditure in respect of the area comprised in the block or blocks specified in the application. An applicant is also required to demonstrate the commercial viability of recovering petroleum from the area covered in the block (s) specified in the application as at the time of the application and in the future. Before granting a PRL the Minister must also be satisfied that the license area does not constitute a location.[26]
42. If after considering the application and a report from the PAB, the Minister is satisfied, amongst others:
(a) with the proposals and other information provided to him with the PRL application; and
(b) that the recovery of petroleum from the area comprised in the blocks specified in the application is not at the time of application commercially viable; or
(c) could become commercially viable within the period of time ending at the expiration of a PRL if extended for the maximum permitted period; and
(d) upon further liaisons, the making of such alterations to the proposals as are necessary, or complying with such further conditions
in relation to the proposals as the Minister thinks reasonable,
may ultimately grant a PRL to the applicant.[27]
43. A PRL confers on the licensee, exclusive rights similar to those granted under a PPL.[28] Like the PPL, a PRL is subject to conditions amongst others that the licensee will:
(a) carry out all approved proposals;
(b) provide to the Director reports on the activities of the licensee in respect of the licence containing such information and at such frequency as are specified in and will otherwise comply with any relevant direction; and
(c) carry out a SMLIS.[29]
(iii) Petroleum Development License
44. A similar position to that of a PRL applies to an application for a PDL. That is upon discovery of economically viable petroleum resources within blocks that constitute a location during the currency of a PPL or a PRL. An application for a PDL must be made within two years after the date on which the blocks were declared to be a location or such further period as the Minister allows. The application must be addressed to the Director for the grant of a PDL over such of the blocks as the licensee satisfies the Minister as containing a petroleum pool or a part of a petroleum pool.[30]
45. According to s. 54 an application for a PDL must be in an approved form and made out in an approved manner. Most importantly the application must be accompanied by “detailed proposals ... for the construction, establishment and operation of all facilities and services for and incidental to the recovery, processing, storage and transportation of petroleum from the license area.”[31] This is in addition to paying the prescribed fees and setting out any other matters the applicant wishes the Minister to consider. Upon receipt of the application, the Director may by instrument served on the applicant request for further information, variations to the application or feasibility studies.[32] Depending on how the applicant meets the requirements of the OGA and how the applicant is able to persuade the Minister, the application for a PDL may be granted or declined. Sections 56 and 57 of the OGA provide for these aspects, which are very detailed. In short as the learned Solicitor General in her submission sums it up, the Minister will grant the application if he is satisfied that the proposal will:
(a) achieve maximum efficient recovery and prevention of resources waste by applying good oilfield practices; and
(b) do not interfere with the rights of licensees of adjacent tenements covering common petroleum pools; and
(c) comply with the State’s policy on non-discriminatory access for the other persons to any strategic pipelines or strategic petroleum processing facilities involved in the proposals; and
(d) provide adequately for the protection of the environment and the welfare of the people of the area;
(e) demonstrate that the applicant has adequately identified the persons who are the customary land owners in the areas in accordance with the requirements for a SMLIS under s. 47(5) of the OGA; and
(f) have duly considered coordinated development of any adjacent petroleum discoveries which studies and investigations conducted pursuant to a direction given under s. 65 of the OGA reveal to be in the interest of the State; and
(g) promote viable domestic utilization of the petroleum products to the extent reasonably possible; and will otherwise be in the best interest of the country.
(5) Full scale social mapping and landowner studies - (i) General
47. As will be obvious from the foregoing, a common requirement for each of the three main stages for any petroleum based development in the country is the requirement for a SMLIS. This is understandable as each of the licenses cover a limited or extended area as may be required by the purposes of the respective licenses. A PDL could cover a larger area covering well heads areas to condensation plants to pipelines to processing facilities. If proper SMLIS have been carried out for the purposes of a PPL and or a PRL, the requirement for a full-scale SMLIS would focus on land areas not previously covered in a SMLIS under the earlier licenses and are now required for the purposes of a PDL.
48. Section 47 reads:
“47. Social mapping and landowner identification studies.
(1) It shall be a condition of every petroleum prospecting license that the licensee undertake social mapping studies and landowner identification studies in accordance with this section.
(2) It shall be a condition of every petroleum retention license that the licensee undertake social mapping studies and landowner identification studies in accordance with this section, to the extent that such studies have not been undertaken pursuant to a petroleum prospecting license out of which the petroleum retention license was granted.
(3) It shall be a condition of every petroleum development license that the licensee undertake social mapping studies and landowner identification studies in accordance with this section, to the extent that such studies have not been undertaken pursuant to a petroleum prospect in license or petroleum retention license out of which the petroleum development license was granted.
(4) Prior to first entry on to the license area for the purposes of exploration pursuant to a petroleum prospecting license or a petroleum retention license, the licensee shall undertake—
(a) a preliminary social mapping study; and
(b) a preliminary landowner identification study,
of the customary land owners comprised in the license area, with particular reference to that part of the license area where the licensee's exploration activities are to be concentrated.
(5) If a licensee or a person makes an application for a petroleum development license under Section 53, the licensee shall submit with that application a full-scale social mapping study and landowner identification study of customary land owners in—
(a) the license area of that petroleum development license; and
(b) other license areas, including pipeline areas, which pertain to that petroleum development license; and
(c) the land within five kilometers of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development license) of the petroleum project; and
(d) other areas which would be affected by the petroleum project if developed (sic); and
(5A) If a licensee makes an application for a variation of a license under Section 58(1), to include an additional block or blocks in a petroleum development license, the licensee shall submit with that application a full-scale social mapping study and landowner identification study of customary land owners in—
(a) the additional block or blocks that will form part of that petroleum development license; and
(b) other license areas, including pipeline easements, which are associated with the petroleum development license upon variation of such license; and
(c) the land within five kilometres of any facility which would be a dedicated project facility (other than a facility which would be situated on such a petroleum development license) of the petroleum project; and
(d) other areas which would be affected by the development of the additional block or blocks.
(6) The Minister may by regulation prescribe the scope and method of a social mapping study or landowner identification study conducted in accordance with this section, and requirements as to reports of such studies.
(7) Copies of any social mapping or landowner identification studies undertaken in accordance with this section (excluding any information which is confidential to the licensee or to the local groups of landowners) shall be provided to the Director.”
49. Clearly, subsections (1), (2) and (3) stipulate in no uncertain terms that a SMLIS is a condition for each of the three licenses. The rest of the provisions of s. 47 make it clear that, the requirement for a SMLIS is a condition precedent to any of the three licenses, PPL, PRL and PDL and land to be taken up by pipelines and facilities. Subsection (4) requires at the commencement of these licenses, namely at the PPL stage, which would be the first ever time anyone interested in a petroleum exploration and eventual development enters any customary land, to meet the requirement for a SMLIS. Subsection (5A) makes it clear that any application for a variation of any of the licenses must be conditional on a SMLIS. Hence, in my view, the requirement for a SMLIS is a condition precedent to any petroleum license under the OGA, their extension or any variation. This is a necessary condition precedent because it is through this process the real customary landowners and those who are by custom connected to them get identified for all purposes under the OGA. This necessity is dictated by a need for the customary landowners on whose land the development is going to take place giving their permission to prospectors and developers to enter their customary land, consider and approve any petroleum project, participate at the appropriate levels, including a development forum and sign petroleum development agreements and participate in benefit sharing with other landowners and the State.
(ii) Two components of a SMLIS
50. This condition precedent has two components namely, “social mapping” and “landowner identification” studies under s.47 and the other provisions that reiterate this requirement. They are not one and the same but two different critical components of each other. Counsel tried to assist me but only partly with what is meant by “social mapping” and “landowner identification” and in any event not of the same view as to the meaning of these phrases. It is important that there be a proper understanding of what is meant by these phrases. Such understanding is necessary and required at three different levels in order to satisfactorily meet the requirements of the law and its purpose. That in turn is necessary to avoid unnecessary arguments and disputes or conflicts which have the potential to delay or prevent a project from commencing or if already commenced, destroy it.
51. The first level of understanding should be at the level of the holders or proposed holders of any of the licenses, so they can properly understand and meet the requirements. The second should be at the DPE Ministerial and State level for them to ensure there is a meeting of the requirements before any of the licenses are granted. Understanding at this level is critical as the State has to make decisions affecting the landowner’s land rights and interests. Such an understanding is required to ensure there is due compliance of the provisions of s.50- development agreement, s.113 - rights of landowners, s.114- interference with rights, s.118 - compensation, s.121 - determination of customary land, s.167 - equity benefits, s.168 - royalty benefits, but most importantly determine who are project area landowners under ss.169 and 169A and sharing of benefits under ss.170 – 171, 172 (3), 173 (5), s. 175, s.176 and s.177. The third and final level is at the level of the persons claiming to be landowners or persons having rights or interests in the land covered by any or all of the licenses in an effort to derive benefits. If there is clarity on who are the customary landowners with their land boundaries are, there would be less or no argument on these aspects.
52. There is no definition for any the phrases “social mapping study” and “landowner identification study.” But the phrases “customary land”, “customary land owner” and “project area landowners” are defined by s. 3 of the OGA. The Plaintiffs’counsel, Mr. Kolo, in his submissions referred the latter phrase and its definition in the OGA. The definitions of these phrases are in these terms:
“‘customary land’ means land that is owned or possessed by an automatic citizen or community of automatic citizens by virtue of rights of a proprietary or possessory kind that belonged to that citizen or community and arise from and are regulated by custom...
‘customary land owner’ means a person who has an interest in customary land...
...
‘project area landowners’ means, in relation to a petroleum project, the persons who are customary land owners or who have registered title to—
(a) any part of the license area of a petroleum development license the operations under which are part of that petroleum project; or
(b) any land within the buffer zone of that petroleum project...”
53. From these definitions, it is possible to work out what is meant by a “landowner identification study”. Such a study is to establish the identity of the persons who have ownership or other land rights or interests over customary land that is or to be taken by a petroleum exploration, retention, development or related license. Rights of ownership or other rights and interests in customary land is governed by custom. With respect, none of the counsel were able to assist the Court with any evidence or any considered submission on this point. They appeared content with what I consider is a misconceived idea by many in the academia and other so called experts that, customary land in PNG is owned by clans and not individuals. Most of these experts are foreigners who may not know everything there is about the subject. Some Papua New Guineans who appear not to think critically accept what the foreigners and others come up with merely adopt them. Counsel before me with respect, appeared happy to go along with the misconceived idea. However, during the course of submissions by counsel for the Minister, Mr. Mawa, endorsed a suggestion from the Court that in fact, individual natural persons own and or have other rights and interests in customary land in PNG while family units, sub-clans or clans and tribes help enforce an individual landowner’s ownership or other rights and or interests in customary land. Other counsel did not make any submissions to the contrary.
54. Schedule 2.1 (1) – (3) of the Constitution provides for the reception and application of customary law. Schedule 2.3 provides for the development of an underlying law where there is no relevant and applicable principle of law. For that purpose, Sch. 2.3 (1) (c) amongst others, authorizes the Courts to draw analogies from custom. The Customs Recognition Act,[33]gives effect to the above provisions of the Constitution. Section, 5 of that Act, provides for the taking into account of custom on questions of “ownership and devolution by custom of rights in, over or in connexion with customary land” which is inclusive of sea, rivers, their beds and anything in or on customary land as well as any produce from customary land including, any hunting, gathering or fishing. Section 2 provides as to how custom can be proved. That provision went to the Supreme Court twice. The first was by Constitutional Reference No. 1 of 1977 (Sch. 2.3.).[34] The second was by SCR No 4 of 1980; Re Petition of MT Somare.[35] In the latter, case, Miles J., expressed the view that:
“Schedule 2.1 would seem to treat custom in general as a matter of fact and custom as adopted applied and enforced as a matter of law. .... I expect that most courts in the country would need all available assistance to inform themselves on relevant custom, particularly if it be, as suggested in Constitutional Reference No. 1 of 1977 (Sch. 2.3.)... per Prentice C.J. that it is only nationwide custom that is to be adopted as part of the underlying law under Sch. 2.1.
55. After considering what Sch. 2.1 and 2.3, provide for, His Honour concluded:
“In any event the Native Custom (Recognition) Act 1963 ousts the strict rules of evidence and enables a court to inform itself as it sees fit on any question as to custom.”
56. Here, none of the parties were of any help to the Court. Hopefully, they will be of help if the matter gets to trial. Until then,
I am left with the provisions of s. 2 (2) and (3) of the Customs Recognition Act as interpreted and applied by the Supreme Court. I consider these provisions both authoritative and instructive enough to enable me
to inform myself of the relevant customary law and practice based on my own knowledge and experience as a Papua New Guinean. I am
inclined to do so in view of no serious contest registered by any of the learned counsel against my indication of what the real customary
law position is.
57. Accordingly, I start with the relevant custom and its practice or application in my home Province, Enga. A number of mediations conducted in the Province at Wabag, Kompiam and Mt. Kare with the Deputy Chief Magistrate (Lands) His Worship, Mark Pupaka’s help confirm the relevant customary law and practice. These mediations resulted in settlement through a better understanding and appreciation of the people’s custom concerning customary land especially, ownership and other customary land rights and interests. We achieved similar results in a good number of other similar disputes forced on by major natural resources extraction projects and other commercial activities. The experience and knowledge thus gained covers the New Britain Provinces to New Ireland to Morobe to the Sepiks to the Highlands and the Central Provinces. Included in this is the much publicized and more involved, PNG LNG Project related mediations in the Hela Province. These mediations have covered disputes over customary land in cities, towns and other easily accessible places to the most remotes places like Mt. Yule in Central Province, Rulna in the Western Highlands Province, Sentiab in the Jiwaka Province, Awatange in the Hela Province and Mt. Kare in the Enga Province. The experiences and the knowledge thus gained make it clear that, it is a common custom in the country that, individual natural persons through their immediate families own customary land and not a sub-clan, clan or tribe or such other groupings.
58. Here is how it works. An individual human being acquires rights or interests to land through being a member of a particular family. A family’s land runs down the family line from generation to generation. Depending on the kind of society, patrilineal or matrilineal, the father or mother in the family decides which part of the family’s land each of the children in the family should have. The individual child upon attaining adulthood, will have almost exclusive use of the land but without power or right to dispose of the land or make any decisions concerning its use by persons outside the family except only with the consent and approval of the family. Hence, the interest of any individual within the family is similar to a tenancy in common with the other members of the family. The father is usually the head of the family and the one who has control over what goes on within the family’s land boundaries, in the event of a dispute or unauthorized use of the land.
59. A landowning family would be connected to a common ancestor through their grand, great and great, great grandparents and so on until they reach their tribes and beyond that, language and other groupings. A grouping of a number of families with common origin and other factors, are usually sub-clans who could inter marry, fight wars usually over land within their boundaries, women and other properties, yet remain part of the grouping in every other way. Similarly, at the next level being clans, again within their boundaries, there would be inter clan marriages, war fares over land within their boundaries, women and other properties. The same goes for the next level, being the tribes. The tribes would be larger groups depending on their traditional stories about their origin, past and present trading and other linkages. Again the same applies at the next level being further larger groups distinguished by their, language, geography and their respective customs and traditions and other factors which clearly demarcate the different groups and their settings. Yet at that level, there would in some instances, be groupings according to their origin stories and relations between the members in such groupings. A good example of that is the traditional origin stories as is the case between the Taris in Hela Province and the Engans in the Enga Province through their common stories about the Hela Hulis (Helas) and Hela Opones (Engans) which is getting retold repeatedly in the current Court ordered LNG mediation intervention in the Hela Province.
60. These levels of groupings enables an individual to assert and enforce his or her ownership or other rights and interests in customary land against others. At a family level, it would be within the family with leadership provided by the father or the mother (depending on the kind of society) which has the authority to make decisions in cases of disputes and a lack of resolution through consensus. Then at the sub-clan level, it would usually be under the leadership of one or two persons from within the sub-clan who are respected and accepted as leaders. The same would be the case at the clan and tribal levels. Within these structures, no family or clan or tribe has any power or right as against another family, sub-clan, clan or tribe as to how they use their land except only for areas of common value, rights and or interests such as fishing, hunting and ceremonial and spiritual grounds or sites and objects. By analogy, a family unit, sub-clan, clan or tribe is the equivalent of the law and law enforcement agencies that recognizes, secures and enforces a title holder’s rights or interests and those of others like mortgagees claiming a legal or equitable interest over a property represented by a title. The law and its enforcers do not own any land contained in a State Lease but the respective owners and those claiming an interest in the land do. They turn to the law and its enforcers for an enforcement of their rights or interests when required.
61. The description above is the same throughout the country based on my various experiences and knowledge as also described above. It is hence, a custom of common application throughout the country and is not repugnant to the general principles of humanity and any written law. Instead, it has similarities with landownership at common law and PNG’s formal land law, namely in respect of titles in common between two or more people. I accept this as a good customary law principle that should be recognized, adopted and applied as part of our underlying law pursuant to sch.2.3 of the Constitution. In arriving at this view, I am aware of the provisions of s. 2 of the Land Groups Incorporation Act[36](ILG Act) which define “customary landowners” to mean:
“a clan, lineage, family, extended family or other group of persons who hold, or are recognised under custom as holding, rights and interests in customary land, and includes a land group incorporated under the Land Groups Incorporation Act...”
62. This definition is relevant for the purposes of the Act. Its purpose is to “(a) recognize the corporate nature of customary groups” and “(b) allow them to hold, manage and deal with land in their customary names.”The Act is thus intended to encourage and enable “greater participation by”our “people in the national economy” by the “better use of their land” and give “greater certainty of title” and to enable a “better and more effectual settlement of certain disputes” within their groups.[37]Also, the Act is aimed at giving “legal recognition” and “corporate status of certain customary and similar groups, and the conferring on them, as corporations, power to acquire, hold, dispose of and manage land” and other “ancillary powers.”
63. From the provisions of the Act, it is clear that the process under the Act is initiated by human beings.[38] In most cases, they “possess common interests and coherence independently of the proposed recognition, and share or are prepared to share common customs” and “the association between the groups represents a customary form of organization.”[39]Others who are not part of a customary group may be included at the discretion of the Registrar of Incorporated Land Groups (ILGs).[40] No such recognition would be possible, until a notice of intention to apply for such recognition has gone out[41] and opportunity given for people in the area through the relevant district administrator and the relevant village court to comment upon.[42]
64. The provisions of the ILG Act do not in my view, displace the custom and the structure within which customary land rights and interests are defined and enforced. Instead, I am of the view that the two Acts, Customs Recognitions Act and ILG Act complement each other. Again as mentioned above, sub-clans, clans, tribes and other land owning groupings do not directly own customary land. Instead, they are units or mediums through which individual customary landowners assert their rights and interests. Under the ILG Act, clans are given the opportunity to become customary land owners for the purposes of the Act by the members deliberate choices. That is done to give certainty to customary land title and a corporate legal status to the clans or those who get incorporated as ILGs. This formalizes in my view, a fact which already exists in terms of traditional groupings of people as I tried to describe above.
65. It should follow therefore that, the need to identify landowning persons is not the same as identifying customary land owing clans for the purposes of the OGA. This is particularly important, in the current setting where most of PNG’s physical land is customary land with an insignificant number of them titled under the ILG Act. A “landowner identification study” for the purposes of s. 47 of the OGA and the whole OGA would be sufficient if the study, covers and establishes three important components for a better understanding at the three levels discussed at paragraphs 51.The first component of “landowner identification study” should clearly identify the customary land area proposed or confirmed to be taken up by any of the petroleum related licenses. This should include a clear establishment of the boundaries of the relevant land and have it clearly located on maps and on the land itself by survey pegs or other clearly identifiable land marks such as rivers, creeks, aged old trees, mountains and things like that with enhancements provided by technology such as Global Positioning Systems (GPS) and the like. This is important to leave no doubt and to avoid unnecessary arguments over exactly what land has been or is to be taken up for the purposes of the respective licenses and project developments will take place. The second component should establish the relevant and applicable custom which governs the customary land in question. Finally, the third component should identify and have a list of persons under their respective families, sub-clans, clans and tribe or tribes who by application of the relevant custom have ownership or other rights or interests in the land. Those rights or interests should then be clearly marked out in a map of the whole of the relevant license area or block. This is necessary to know which of the persons, families, sub-clans, clans or tribes own a particular portion of the land that is the subject of a petroleum licenses.
66. The need to identify persons as opposed to clans seems obvious for instance by what appears in ss.169 – 171 of the OGA which deal with the identification of landowner benefits. Section 169 for example reads in relevant parts:
“169. Identification of landowner beneficiaries.
(1) Notwithstanding any other provision of this Act, the persons (other than affected Local-level Governments or affected Provincial Governments) who shall receive the benefits granted by Sections 167 and 168 shall be identified in accordance with this section.
(2) Prior to convening or during a development forum under Section 48, the Minister shall determine, by instrument—
(a) the persons (other than affected Local-level Governments or affected Provincial Governments) who shall receive the benefits granted by Sections 167 and 168; and
(b) the incorporated land groups or, if permitted in accordance with Section 176(3)(f), any other persons or entities who shall represent and receive the benefit on behalf of the grantees of the benefit.”
67. I do appreciate that in law, the term “person” includes incorporated entities like a company, which upon incorporation acquire separate personality from their shareholders and or promoters or members.[43]But this concept is foreign to PNG. In traditional societies throughout the country, no system existed to enable incorporation and the existence of incorporated entities. Only with the country coming into contact with the outside world and the introduction of modern commerce and industry, incorporated entities came into existence and the concept is accepted in a modern PNG. That is however, limited to cities and towns and where there exists an educated population. Most of the country remains the same as they were prior to the coming of the Whiteman and his ways. In the area of customary land, we do have the ILG Act, which gives an ILG separate personality and can do most of what incorporated entities can do.[44]Unfortunately, not many of our people are aware of the Act’s existence and its requirements. A few who know of the Act and its provisions have in the main, used it for their own personal gain. This has been with much loss and disadvantage to the majority of the people in a family, sub-clan or clans in which names ILGs have been incorporated and certain benefits channeled that way and received only by those behind the ILGs with nothing or very little going to the other members of the unit.
68. I am of the view that Parliament was conscious of the prevailing circumstances as described above and made a deliberate choice to require “landowner identification studies” to focus on persons who own or have an interest in customary land. Arguably this could include ILGs properly incorporated under the ILG Act, which represent a group of customary land owners or individuals having ownership and other rights and interests in customary land, the subject of a PPL, PRL or a PDL. Section 176 of OGA dealing with benefits from a petroleum project, does allow for ILGs to play a major role in the customary landowners receiving benefits from such projects. This is obvious from the words of s. 176 (3) which reads:
“(3) Where a benefit referred to in Subsection (1), [equity benefit] or (2) [any other benefit in relation to the petroleum project] is held by a trustee upon trust pursuant to Subsection (1) or (2)—
....
(f) unless otherwise agreed between the State and the grantees of the benefit or prescribed by law, the beneficiaries of the trust shall be incorporated land groups on behalf of the grantees; and
(g) where project area landowners entitled to an equity benefit in accordance with this section and who are equally entitled amongst themselves to share in that benefit are represented by more than one incorporated land group (or other representative if permitted in accordance with Paragraph (f)) the incorporated land groups or other representatives shall be allocated the benefit in proportion to the number of project area landowners each represents...”(My underlining)
69. In summary, I am of the view that, Parliament intended that two kinds of persons who by custom own customary land that is or to be taken up by a petroleum license, should be identified for the purposes of the OGA in accordance with s. 47. These persons include natural persons and properly incorporated ILGs accepted or endorsed by the people. An applicant for any of the petroleum licenses is required to carry out a study to establish natural persons and properly registered ILGs who own customary land to be or is taken up by a petroleum license. Such a study should result in the production of the names of the individuals, under their respective families, sub-clans and clans and if need be, the tribes and any ILGs properly incorporated and accepted by the people who own the land the subject of a petroleum license. Ideally this should also identify the nature and extent of each person’s rights or interest and specify which part of the land is owned by each of the persons and their respective groupings, family, sub-clan, clans and tribes and so on.
(iv) Social Mapping
70. I now turn to the next component “social mapping studies” in the requirement for a SMLIS. An important question in that respect is, what is meant by a “social mapping study” or what is involved in a “social mapping study”? Another important question is, why is a “social mapping study” required? Except for a very brief submission by Mr. Kolo for the Plaintiff, no assistance came from the other learned counsel on any of these questions. Relevantly, the whole of Mr. Kolo’s submission on this point is:
“‘Social Mapping’ is discovery and confirmation of the array of unique societal settings, customary practices, and such other factors especially in a project area which is peculiar to that area.”
71. Through my own quick research, I discovered that, social mapping is actively used to examine social, environmental, developmental and other issues in urban, rural and in between areas.[45]Despite a variety of social mapping techniques, they all appear to have common features such as ordering and grouping of objects based on particular framework and empirical data, flexibility, visibility and the citizens’ engagement in developing social maps. Put another way, a social mapping “is a visual method of showing the relative location of households and the distribution of different people (such as male, female, adult, child, landed, landless, literate, and illiterate) together with the social structures, groups and organisations of [in an area].”[46]No doubt, the quality of a social mapping is dependent on the quality of the data included or excluded, data scale compatibilities or incompatibilities, complexity of datasets and how the data is analyzed. A map thus serves as an important instrument to communicate to locals, administrations, developers and other stakeholders of the matters covered in the map for better informed decisions. It also appears clear to me from my reading of other material[47]that “social mapping” is related to “social analysis” which are techniques that identify key communities or informal “tribes.” But social mapping goetherrther. It identifies visually the web of specific relationships and demonstrates which individuals are the key points of connection with various sub-communities, whatever such sub groupinght be.
72. Ba2. Based on my limited research, it is clear that social mapping is useful for:
“• Exploring community structure, organisations and processes;
73. Based on the foregoing discussions and in particular their sources, I am of the view that a “social mapping study” under s. 47 of the OGA must be a study undertaken by persons who have the necessary training, skills and substantial knowledge and significant experience in conducting such studies in PNG. These kind of persons must be people who have much knowledge, experience and skills in dealing with the many different cultures and traditions and environmental settings and other realities in PNG. They must be persons who are not going to have a quick fly in and fly out operation hearing tales and or stories from people and go back to the comforts of their offices, draw maps and write reports. Instead, they must be persons who are prepared and are able to spend substantial periods of time in the project area and the nearby areas and their communities. This is necessary for them to experience, properly understand and appreciate the peoples, their cultures and traditions and their environment and way of life. Spending such periods of time would enable the researcher to independently, observe, experience and gather other useful information, assess and make decisions on the credibility or the flaws in what they may have been told.
74. The Department of Lands and Physical Planning has substantial experience in dealing with customary land through its customary land acquisitions division or section. The State acquires customary land either by compulsory acquisitions or by agreement[49] in accordance with the Lands Act 1998. For the purposes of such acquisitions,[50] the Department is required to and it carries out land investigation studies. Such studies help establish who the customary landowners are, the extent of their rights or interest over the land the subject of the acquisition and any improvement brought upon the land. Where there are disputes in the kinds of rights or interest over the land to be acquired, the Department interfaces with the Land Titles Commission or the Land Court and get the disputes resolved.[51]Over the years a number of acquisitions have taken place through which come the necessary experience, skill and knowledge to carry out such studies for the Department. They are the experts and the people or persons with the necessary skills, knowledge and experience dealing with customary landowners in PNG. It would thus make sense for developers under the OGA to liaise and work in collaboration with the experience and expertise that already exists to ensure satisfactory meeting of the requirements of s. 47 of the OGA.
75. In the end, what matters is that, a “social mapping study” should cover amongst others a number of factors or areas as the key areas which a necessary to render such a study satisfactorily meeting the object of s.47. The key areas should involve an identification and confirmation of the:
(1) total number of people living on or claiming a right or interest in the land the subject of the petroleum license under study;
(2) extent and nature of the people’s rights or interest in the land including any known dispute or potential for dispute and how they might have to be resolved;
(3) number of families and households in the area;
(4) community structures, organisations and processes, including the peoples’ relationship between themselves and others;
(5) trading or other important linkages the people might have with others outside their own setting;
(6) different social groups namely, families, sub-clans, clans and tribes in the area using locally defined criteria and which of them are more predominant and powerful or stronger than others;
(7) key resources or objects or matters of value to each of the social groups of the entire area;
(8) location, access and use of key resources, including biodiversity and ecosystem, in relation to different social groups in order to inform ecosystem services valuation and equitable benefit sharing mechanisms;
(9) presence or lack of vital government services, like schools, health centres, roads or bridges and such other infrastructure;
(10) leadership and how leadership is acquired within each of the groups with the names of each of the respective leaders as at the time of the study;
(11) possible impact on the peoples’ way of life and social structure by a petroleum development or activity under the respective license and how that could be minimized;
(12) kinds of religion, cultures and traditions the people practice and how they might be affected by any activity under the relevant petroleum license;
(13) community members that may be most vulnerable to various hazards and risks, including those resulting from the petroleum development related and other factors such as climate change, and discuss coping strategies and opportunities; and
(14) people’s view on the proposed activities and development.
76. Overall, a social mapping conducted under and for the purposes of s. 47, should be able to give a portrait of the people who have ownership or other rights and interests in the land the subject of the relevant petroleum license. This should include an indication of the full extent and limits of the rights or interests, the people’s respective groupings and their respective leaderships, who outside their immediate groupings are important to them in addition to objects and sites that might be of spiritual and cultural and other importance and value to them. Also, the study should be able to highlight what sustains the local population or peoples way of life in their traditional settings and whether they would be able to withstand changes to their way of life brought upon them by a petroleum development and if so how. Most critically a social mapping study should explore and outline strategies with the landowners input as to how best any adverse impact could be avoided or minimized.
77. Combining the two different studies for the purposes of s. 47, I am of the view that, a SMLIS should have two critical components. The first should be a complete list of the persons, both natural and any properly incorporated ILGs, by name, who by custom have ownership and rights or interests in customary land to be or taken by a petroleum license. That list should be under their respective families, sub-clans, clans and or tribes with a clear identification of their respective leaders and point out clearly on a map of the area and on the land itself where each of the groups respective landownership or other interests or rights lie. The study should also point out if there are any disputes and if so, what is the nature of the dispute, how and when they wish to have it resolved. The second component should complement the first component. That should be done by giving a portrait of the respective groupings and their leaderships, who outside their groupings are important to them in addition to any objects and sites that might be of importance and value to them. This component should also be able to highlight what sustains the peoples’ way of life in their traditional and current settings, how they would be affected by any petroleum development and whether the people would be able to withstand the changes likely to be forced upon them. If not, the study should comment upon what measures should be taken to avoid or minimise any possible harm or damage to the people and the environment.
78. Ultimately, the combined effect of these studies, a SMLIS should clearly establish the identity of the human beings and their respective groups with their leadership who own the land taken up or likely to be taken up by a petroleum license, the extent of each persons’ and groups’ interest in the land. This would enable amongst others in securing each of this persons’ informed and free consent or the “social license” for what is or to take place on their land. The studies should also be able to provide the government, the developer and the affected landowners with sufficient and accurate information to make informed decisions about landownership, other interests, who should receive benefits under the OGA and in what proportions, any disputes within and between the individuals and their groupings and how and when they should be resolved. The information thus provided should help avoid unnecessary arguments or conflicts over the issues of landowners, land boundaries, benefit sharing, seeking and securing the consent and approval or acceptance of projects by the correct landowners and hence avoid the risks of delays and the long term security risks for projects.
Present case
79. In the present case, as noted, the developer through its counsel, Mr. Mana claims it has fully met the requirements for SMLIS under s. 47, using the world’s best practice. The Landowners argument is to the contrary. They say the purported SMLIS conducted by the developer is inaccurate and insufficient. Which of these arguments should be accepted is dependent on the evidence before the Court against what should be in a SMLIS for the purposes of s. 47 as discussed and setout above.
80. I set out the relevant facts in paragraphs 5 – 13 above. The developer through its witnesses claims to have carried out SMLIS in accordance with the provisions of s. 47. The evidence before the Court does not say what in particular those carrying out the studies discovered or found out and or gathered, analyzed and concluded in key areas of:
(1) total number of people living on or claiming an interest in the land the subject of a petroleum license under study;
(2) extent and nature of the peoples’ interests in the land including any known disputes or potential for disputes and how they might have to be resolved;
(3) number of families or households in the area;
(4) community structures, organisations and processes within the area;
(5) trading or other important linkages the people might have with others outside their own settings or clan or other groupings;
(6) different social groups namely, families, sub-clans, clans and tribes in the area using locally defined criteria and which of them are more predominant and powerful or stronger than others;
(7) key resources or objects or matters of value to each of the groups or the entire area and how the people relate, connect and share them;
(8) location, access and use of key resources, including biodiversity and ecosystem, between the different social groupings in order to inform and allow for better valuation and arrive at equitable benefit sharing mechanisms;
(9) presence or lack of vital government service, like schools, health centres, roads or bridges and what means for the people;
(10) leadership and how leadership is acquired, the term of leadership the nature and extend of the leadership’s power within and outside each of the groups with the names of those holding leadership positions as at the time of the study;
(11) identification of the possible impacts on the peoples’ way of life, their social structure and environment by a possible petroleum development under the respective licenses;
(12) kinds of religion, cultures and traditions the people practice and how they might be affected by any activity under the relevant petroleum license;
(13) community members that may be most vulnerable to any hazards and risks, including those resulting from the petroleum development related and other factors such as climate change, and discuss coping strategies and opportunities;
(14) peoples’ view on the proposed LNG Project developments and whether they are willing to give their approval and the terms and conditions if any, on which they are prepared to give their support and or approval; and
(15) mechanism or formula if any, the people have to share any benefits or resources coming their way.
81. If copies of the SMLIS reports were tendered into evidence that would have greatly assisted. Unfortunately, as noted, for reasons only known to the Developer, none of the copies of the reports are in evidence, to confirm if the SMLIS covered any or all of the key areas that should have been covered in the study and in the report and thereby substantiate their claims. These kinds and parts of the evidence were and are within the knowledge and control of the defendants. The defendants had the duty to produce them in Court in the light of challenges against the purported SMLIS and their reports to enable the Court to consider them and determine if the studies and or their reports addressed each of the key areas. Even if it was impossible to produce into evidence the various reports, those who carried out the studies would have been easily placed to address each of the key aspects in their affidavits. That they also failed to do. The affidavits adduced from those who carried out the studies at best, contains claims without the support or mention or description of the kind of information they looked for and gathered and the kind of analysis they carried out and the conclusions they arrived at in each of the key aspects a SMLIS should cover. This was necessary to meet the requirement and purpose of s. 47 requirements.
82. The Landowner (plaintiffs) could not be expected to produce any copy of the SMLIS reports or any specifics and details about the studies and reports based on the studies. These are matters solely within the knowledge and control of the Developer and the State, assuming that the claim of such reports being delivered to Minister is true. There is no evidence of the Landowners being provided with the copies of any of the reports. Even if there is no statutory requirement for those carrying out the SMLIS to provide any copies of their reports, I consider a researcher who cares about the accuracy, sufficiency and the integrity of his study and report should allow for the people the subject of the studies to comment up and approve if all is in order. If that was done, the accuracy and sufficiency questions could have been take care of and this proceeding could have been avoided. Nevertheless, the Landowners do know how the purported SMLIS were carried out, concluded and are able to challenge the studies and reports in the way they are on the basis of inaccuracies and insufficiency.
83. In his affidavit filed on 25th November 2015, Mr. Bernard is generally saying at paragraphs 8,10, 12 and 17 that the purported SMLIS and reports were flawed. In these paragraphs, Mr. Bernard says, instead of spending more time with the people in each of the villages proposed to be taken up by the Project, the SMLIS study team relied on third parties (named) who are not locals. The study team also failed to obtain the relevant details going into the people’s genealogy and the “number of clans within the main well heads and the other potential sites, clans living within the peripheral to the project sites but share common boundaries and traditional ties” with them and so on. This has resulted in about 25 clans (named) being omitted by the study team. He also points out that, it is highly likely that many of the clans who will participate at the proposed development forum will not be through their duly authorized representatives.
84. The affidavit of Hon.James Donald filed on 30th November 2015 supports Mr. Bernard. This deponent is the President of the Kiunga Local-Level Government, North Fly District, Western Province and hence a member of the Western Provincial Assembly. In paragraph 5 of his affidavit, he says “Mr. Bernard is a prominent landowner leader from the well head 2 [area] of the P’nyang LNG Project and has been a staunch advocator for [the] plight of the affected landowners.” The deponent then speaks of instructing Kolo Lawyers to issue this proceeding after receiving a petition from 150 clan leaders (a list of which is annexed) opposing the Project for a number of reasons. One of them is their claim that, the SMLIS was not properly conducted, verified and signed off by the correct stock clans under witness by their surrounding clans, ward councilors, the president of the relevant Local–level Government, District Lands Officer or Mediator and the Provincial administration.
85. These facts and rest of what Mr. Bernard says in his affidavit are seriously contested by the affidavit of Dr. Hitchcock sworn and filed for the Developer on 18th December 2015. This means there is a serious issue on the facts which can only be resolved by trial.[52]This adds to the argument that there is an arguable case that can only be resolved by a trial and not on a motion where the facts are seriously contested.
86. On what is before me, I am not satisfied that the requirements for SMLIS has been satisfactorily met by the Developer. As already noted the requirement for SMLIS is critical because:
(1) there can be no grant of any of the licenses under the OGA, without the SMLIS requirement being satisfactorily met; and
(2) it is through the SMLIS that a licensee or a developer and the State come to know who the project area land owners are, how they stand to affect and gain from a project and make informed decisions regarding the Project; and
(3) it is through the SMLIS that a licensee or a developer and the State as its supporter can seek and secure from the project area land owners their “social license to operate” and keep it throughout the currency of the project; and
(4) a properly conducted SMLIS can help prevent unnecessary claims of ownership and other rights and interests in the land and thereby avoid unnecessary court proceedings, disruptions or interferences that can cause much delay in project developments.
Development Forum
87. In addition to the foregoing, without a full-scale SMLIS, no development forum can proceed. Section 48 requires a development forum to be conducted. The purpose of this forum is to lead to a development agreement and the grant of a PDL. Such a meeting has to be held “at a place close to the proposed license area to provide ease of access” for the persons entitled to attend to do so. Section 48 also provides that those who are entitled to attend should be the:
(a) applicant or intending applicant for the license or licenses; and
(b) project area landowners determined under Section 169(2) or their duly appointed or elected representatives; and
(c) Local-level Government or Governments who would be affected if the application is granted; and
(d) the State.
88. Section 49 stipulates that a development forum cannot take place until four important requirements are met. These requirements are:
(1) The applicant or intending applicant for a license or licenses has completed and presented to the Minister a full-scale SMLIS in accordance with Subsection 47(5);
(2) The Minister is satisfied, on the basis of the SMLIS results that the people who would be project area landowners of the petroleum project are truly represented by the persons who are to be invited to the development forum as their representatives;
(3) The applicant or intending applicant has submitted to the Minister, and the Minister responsible for environmental matters, a socio-economic impact study as part of the environmental plan required under the Environmental Planning Act (Chapter 370); and
(4) the Director has prepared a proposal, after giving due consideration to the results of the full-scale SMLIS and the socio-economic impact study and the principle set out in s. 170(3), for the equitable sharing of the equity benefit and the royalty benefit amongst project area landowners, and has provided that proposal to representatives of those future project area landowners.
89. It is clear to me from the clear provisions of ss. 48 and 49 that, in addition to meeting other requirements of the OGA as discussed above, a full-scale SMLIS forms the basis to determine readiness for a development forum to take place and for an oil or gas project to progress to a PDL. A full-scale SMLIS also forms the basis to determine the true or genuine representatives who can attend a development forum and enter into a development agreement with the State and the proposed development forum. Further, a full-scale SMLIS forms the basis for the Minister to prepare a proposal “for the equitable sharing of the equity benefit and the royalty benefit amongst project area landowners which are not necessarily clans but natural persons and provide that to the landowners before a development forum can take place. Apart from the developer and the Minister’s claims without the support of any source evidence, there is no evidence of any or all of these important requirements having being met by the Developer. This has to be contrasted with the Landowner’s evidence through Mr. Bernard and Donald James as well as that of the State.
90. This lack of due compliance of the provisions of ss. 47, 48 and 49 add to the failure of the Developer and hence the Project meeting other minimum statutory requirements such as those under s. 54 (1) (c) of the OGA. As already noted, these failures led to NEC decision No.386 of 2015. That decision decided against a grant of a PDL and outlined a number of options that should be negotiated with the Developer. Additionally, there is the evidence of the relevant government process of considering and reviewing the Developer’s application are yet to be complied with. These factors are pointers in favour of a finding that, at this stage, there is an arguable case against the Developer and the Minister.
91. I accept counsel for the Developer’s submissions at paragraphs 12 to15 of their submissions dated 9th February 2016, that the test for an arguable case is not a mere speculation but must be a serious case, “which has a real possibility of ultimate success.”[53] In the present case, given the various lack of compliance of the various mandatory legislative requirements as discussed above, coupled with the NEC decision not to approve the Project, present a serious case that has a real likelihood of succeeding. Counsel for the Developer tries to attack the other reliefs sought in the originating summons by arguing that they are not likely to be granted. That submission however, fails to note that, they are dependent on the main claim of the mandatory requirement for a full-scale SMLIS not being met satisfactorily by the Developer. Hence, my view that the arguments of the Landowners based on the Developer’s failure to meet the requirements of ss.47 and 49 of the OGA and the other relevant and applicable legislative provisions has a real likelihood of succeeding. That being the case, I am of the view that the other consequential reliefs also have the likelihood of being granted.
Other requirements for a grant of injunctive orders?
92. I now turn to a consideration of the next question of, have the Landowners met the other requirements for a grant of an interim restraining order. I start with the question of locus standi.
(1) Locus standi
93. The developer argues against both of the plaintiffs having the necessary locus standi to bring this proceeding. This is based on two grounds against Alex Bernard and one ground against the second plaintiff. The first ground raised against Mr. Bernard is this. His clan, Wokfyiak of Kayangabip Village has been identified and is included in the SMLIS and the Ministerial Determination on beneficiaries. Consequently the argument is, he cannot be aggrieved and therefore he has no cause and thus no locus standi. In support of this argument, learned counsel for the developer refers to a number of National Court decisions and the Supreme Court decision in Sekesu Sisapi Land Group (Inc) v Turama Forest Industries Ltd.[54]
94. The second ground is that, Mr. Bernard who is also suing in a representative capacity has failed to meet the requirements of the law. The requirement is for him to seek and secure the consent and approval of those he purports to represent and proceed with such authority. In support, counsel cited the decisions of the Supreme Court in Simon Mali v. The State,[55]Tigam Malewo v. Keith Faulkner[56]and Pepi Kimas v.Boera Development Corporation Ltd.[57]
95. Against the second plaintiff, the argument is this. It is an entity which is incapable of owning land. It follows therefore that, it lacks the necessary locus standi to bring this proceeding and claim the reliefs sought in this proceeding. I am happy to uphold this argument as against the Association for two reasons. First, the submission is in line with my earlier discussions on who is a landowner. According to that discussion, the second plaintiff does not qualify. Secondly, there is nothing in the Originating Summons or any of the affidavits thus far filed for the plaintiffs that addresses and discloses the Associations interest in land that are to be taken up by the Project. In the circumstances, I agree that the Association has not demonstrated in any manner or form that it is a landowner which is affected by the purported SMLIS. Accordingly, I order that the Association be removed as second plaintiff and as a party in this proceeding.
96. This leaves me to deal with the arguments against Alex Bernard. I turn first to consider the law on point by reference to the cases especially the Supreme Court decisions cited by the Developer’s counsel. In the Pepi Kimas v. Boera Development Corporation Ltd, (supra) an affidavit was filed disclosing the respondent’s interest and hence standing in the case. The Court found that was in order and dismissed an appeal against a decision in favour of locus standi. In Simon Mali v. The State (supra) the Court was dealing with an appeal against a decision of the National Court. The National Court decision set aside a purported consent order because on the face of the record, there was no consent of the parties and the trial Judge had not in fact made the consent orders at the first place. The lack of naming and getting the consent of persons purportedly represented by the appellant was mentioned in that context but not for a dismissal of the proceedings. In Tigam Malewo v. Keith Faulkner, (supra) the appellant issued proceedings without meeting the requirements for representative action. They then sought to get around that by trying to rely on affidavits meeting the relevant requirements of the law but not yet filed and or leave to introduce and use them not sought and obtained. In the circumstances, the National Court found that the relevant requirements were not met. That formed part of the reasons for the Court eventually deciding to dismiss the proceeding. On appeal the Supreme Court said of the requirement “If that requirement is not met, leave must be granted by the court to file and serve the affidavits in court.” The Court then went on to observe and ruled as follows:
“Mr Narokobi wanted to file two affidavits but did not make his intentions clear until after the respondents had completed their submissions. Her Honour ruled that Rule 12(2) was not complied with and that the appellants failed to apply for leave to file and serve the affidavits in court. We consider that her Honour correctly refused to consider the affidavits.”
97. Another case on point but, not referred to by any of the lawyers, is the decision of the Supreme Court in Philip Takori v. Simon Yagari.[58] There, the appellant’s proceedings were dismissed on a number of grounds. One of the grounds was the requirements relevant to representative action. On appeal the Supreme Court of which, I was a part, dealt with the issue in the following way:
“34. .. with the issue of representative action, we agree that, there is authority for requiring the capacity in which a person is suing in a representative action to be properly pleaded. We also agree that, there is authority for the requirement that, a plaintiff must endorse his or her writ. ..
35. Where such pleadings are missing, they do not however, spell an end in themselves at the first instances. As with pleadings generally, there is an obligation in a defendant to any proceedings having such problems to point them out to the plaintiff and give him or her, the opportunity to take the corrective measures. Where a plaintiff is so requested and he or she fails to take the appropriate steps that attracts unto himself or herself an application by the defendant ... for appropriate orders to compel the plaintiff to correct the defects and failing that, appropriate consequential orders. The National Court often hears a lot of applications and readily grants orders aimed at correcting the kinds of deficiencies we speak of or orders compelling a plaintiff to take the corrective measures. These kinds of orders are made with a view to doing justice on the substantive merits of the case at less costs and delay to the parties. Hence, the practice of the National Court that we are well aware of is, often one of slow to finally shutting out a party except in the clearest of cases, and or where there is deliberate and inexcusable failure to comply with Court orders or the Rules of the Court, only as a last resort and only if no measure of amendments will do.”
98. The import of these and other cases on point are clear. Only persons who have an interest in the subject matter of a complaint
have standing. In cases of a representative action, each of the persons on whose behalf an action is brought, must be named and
their consent and approval sought and secured. Where this requirement is not met, the plaintiffs should be given an opportunity
to remedy that first before the ultimate act of dismissing their proceedings. This accords well with the principle that the Courts
should be slow to driving a plaintiff out from having his day in Court except only in the clearest of cases for instance where there
is no disclosure of a cause of action known to law.[59]So if in a case like the present, a person claiming to sue in a representative capacity fails to name those he claims to represent
and has not filed the required affidavit evidence from those he claims to represent consenting to and approving the action on their
behalf, the plaintiff should be first given an opportunity to remedy the situation. If such opportunity is given and is not made
use of, only then should the proceedings be dismissed.
99. In this case, the nature of the complaint concerns the mandatory requirements of s. 47 of the OGA, which is a condition precedent to any development forum, a development or project agreement and a grant of a PDL or indeed any of
the other licenses. It is thus, important to consider the Developer’s arguments against Mr. Bernard’s standing by looking
at what should be in a SMLIS and the Courts findings against the SMLIS in this case. The Developer’s argument should also be
considered in the light of all of the evidence properly before the Court. When that is done, it becomes obvious that the Developer’s
submissions fails to appreciate the seriousness of what Mr. Bernard is saying.
100. Subject to any further evidence, but for now on the facts presently before the Court, I am satisfied that Mr. Bernard has the necessary locus standi. Three reasons support this view. First, Mr. Bernard is a leader in the well head 2 area who has been a “staunch advocator” for his people. James Donald’s evidence speaks in these terms. This part of his evidence has not been challenged in any way. This means, Mr. Bernard is accepted as someone who has the right on behalf of himself and his people to bring these proceedings to point out the flaws in the SMLIS. It was incumbent on the Developer through those who carried out the SMLIS studies to provide a complete list of the members of the various clans they have identified with their duly recognized or appointed leaders and demonstrate how Mr. Bernard is not a member and leader of his people and not qualified or does not have the authority to sue as he has. Unlike any other defendant in other cases where they do not have any information about the persons suing and claiming to represent other customary landowners, the Developer here through the SMLIS should have the relevant information or evidence. If SMLIS study team did what they were required to do, the relevant and necessary evidence should already be with them to produce in Court. But the Developer failed to do that.
101. It is a well-accepted principle of law that all information that may affect the grant or not of an interim injunction and its continuity must be disclosed. I referred to that principle in the case cited by counsel for the Developer. That was in the case of Golobadana No 35 Ltd v. Bank of South Pacific Ltd,[60]where I said the duty to disclose all relevant and necessary information that might affect the grant of an interlocutory injunction, “is a requirement that must be met in equity given that the grant or not of an interlocutory injunction is an exercise of the Court’s power or discretion in equity.” Usually this requirement is directed at a party seeking an interim injunction ex parte.[61] In my view however this rule equally applies to all parties who are either arguing for a grant or not of an interim injunction and or its continuity or not to disclose all information within their knowledge and more so those within their possession and or control. This principle applies against the Developer in the case before me.
102. Secondly, I note that contrary to the developer’s arguments, Mr. Bernard is not claiming he and his clan have been left out by the SMLIS, their reports and ultimately the Ministerial Determination and hence a challenge on these aspects. Instead, his claim is centered on a failure of the Developer to carry out proper SMLIS for the purposes and fulfillment of the requirements of s. 47 and the other relevant and applicable provisions of the OGA. Hence, this proceeding is not restricted to the question of which clan or persons were not included in the studies and the reports based on them and the Ministerial Determination. Rather, it is a question on the whole integrity, in terms of the accuracy, completeness and or the sufficiency of the SMLIS and the reports based on such studies. The arguments of the Developer centered on the lack of any challenge of the Ministerial Determination is therefore irrelevant. What is relevant is what should be covered by a full-scale SMLIS and a report based on that, its completeness and its integrity. As noted, a full-scale SMLISs and reports based on such reports could be considered complete with integrity if all of the aspects listed in paragraph 80above were covered and verified and approved in the way described in paragraphs12 and 84 (last part in both paragraphs) of this judgment. The plaintiffs claim questions the integrity of the field studies and the final SMLIS reports. This is critical because of the requirements amongst others of the provisions of s. 48 and 49 which remains to be met by the developer.
103. Third and finally, as already noted, Mr. Bernard’s evidence touching on what the SMLIS study team did or failed to do is seriously contested by the affidavit of Dr. Hitchcock sworn and filed for the developer on 18th December 2015. This means there is a serious issue on the facts which can only be resolved by trial.[62]That means the issue of who has standing and who does not can only be determined when all of evidence is in Court. This should include the evidence the Developer should by now have in the form of the SMLIS reports and the primary evidence from the report as well as any additional evidence the Landowners might subsequently produce.
(2) Irreparable damage
104. Next, the Developer claims damages is an adequate remedy and not an injunction for the Landowners. In other words, there is
no irreparable damage warranting the injunction. Hence, the argument is, the injunction should be lifted. A number of National Court
decisions, including my decision in Golobadana No. 35 Ltd v. Bank of South Pacific Ltd, (supra) is cited to support its argument. I accept the principle as correct but not its application to this case.
105. The Developer’s argument with respect, fails to acknowledge the fact that a petroleum development has the potential unless proper measures are taken of upsetting and damaging for good the traditional landowners’ way of life, environment, culture and tradition and matters of traditional value and importance to them. These can be beyond any value and repair. Amongst others, there will be roads and bridges and introduction into the people’s traditional setting foreign elements including, humans and dangerous substances. For example, unless the developer plans to seal all of its roads, dust produced by moving heavy and light vehicles will be introduced into the air on a daily basis and thereby contaminate the quality of air for the people from one of pristine and natural to contaminated dusty air. Further, such development even comes with possible irreparable damage of upsetting the people’s traditional social structure and leadership. Cash suddenly becomes very important and not necessarily the people’s relationships and values through a keeping of their cultures and traditions from time immemorial. This is now a fact of life in major project developments in the country including, the PNG LNG Project, the Developer of which is also connected or very much involved with the P’nyang LNG Project. The situation is worsened, when no proper SMLIS are carried out in the way discussed in the foregoing with appropriate detailed, practical and sustainable plans in place to either avoid or minimize the possible harm and damage. The absences of any such study and plan highlights the fact that, the kind of harm and damage a petroleum development license can bring about is more of a possibility than not. No order for damages can ever fix any such harm, disruption or damage.
106. Given the possible irreparable harm and damage highlighted above, it is critically important that there be careful and detailed SMLIS. Then based on such studies, the people who stand to be affected be informed of all implications. They should then be given the opportunity to consider the impact of what is to come and be allowed to play a meaningful part in the Developer devising and arriving at an appropriate strategy to minimize or avoid any possible harm or damage to them. It is not fair and certainly not right that the people should be ill prepared, kept in the dark and be expected or forced to accept any so called development imposed upon them, their environment, culture and tradition and as peoples. They have a universal and constitutionally guaranteed right to life[63] and not something short of that in the name of development.
107. The damage the developer stands to suffer is only lost income or funds already (not proven as yet) or yet to be spent. This can easily be recovered by a commercialization of the gas or oil reserves, tax exemptions and write offs and so on. Between the two kinds of damages discussed, the damage the Developer stands to suffer is reparable while the kind of harm and damage the people stand to suffer is irreparable and no order for damages can ever fix it. When this is properly considered, an injunction is called for.
108. In Telikom PNG Limited v. ICCC & Digicel (PNG) Limited,[64] I noted that, competition in the telecommunication industry represented invaluable again to the people in the country. Comparing that to the possible financial losses to Telikom due to competition in the industry was reparable. In the circumstances, I held that an injunction on the application of Telikom which would have the effect of eliminating competition and promoting monopoly was not warranted. Although the decision went to the Supreme Court by way of an appeal,[65] this point was not the subject of the appeal. The injunction in the present case serves the purposes of causing the Developer and the State to properly and correctly identify the traditional landowners as a matter of fact and law, work with them to meet all legal and social responsibility requirements imposed on the Developer and the State to ensure there is minimum or no harm or damage is brought upon the people, their environment, their traditional way of life culture and matters of importance and value to the people.
(3) Balance of convenience
109. Another argument against the continuity of the interim injunction the Developer brings is based on the principle of “balance of convenience”. The Developer argues that the balance of convenience does not favour a continuity of the interim restraining orders. For the law on point counsel for the Developer refers to my decision in the Golobadanacase and the decision of Kapi DCJ (as he then was) in Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seamen’s Union.[66]These cases stand for the trite law that in considering whether or not to grant or allow for a continuity of an interim injunction, the Court must consider if the balance of convenience weighs in favour or against the grant or continuity of an interim injunction. The question of balance of convenience is often determined by reference to whether an applicant in an interim injunction or its continuity will succeed in his substantive claim and he will be adequately compensated by an order for damages if he fails in his application for an interim injunction. Then finally, if after weighing the factors for and against the grant of an interim injunction, all things are equal, the Court should endeavor to arrive at a decision that will help maintain the status quo.
110. I have already come to the conclusion that, there is an arguable case against the defendants. I have also concluded that there is likelihood of irreparable harm or damages or that damages will not be an adequate remedy for the landowners. The status quo is, apart from the explorations and SMLIS carried out on the land, the subject of the application for PDL by the Developer, there is no evidence speaking against everything on the subject land remains undisturbed. Similar there is no evidence of any serious or other impact brought upon the land. The NEC has decided against a grant of the application for PDL by the Developer and suggested a number of options for negotiation with the Developer. A failure by the Developer to meet certain minimum statutory requirements led to that decision. To this reasoning I add the failures to meet the requirements of s.47 and 49 of the OGA as well as the fact that the State team to negotiate this Project with the Developer is not ready. What all these mean clearly is that, the Project is not yet ready to progress to a development forum and development. That is the status quo. The interim injunction does not upset that status quo.
111. The developer tries to get around that by arguing that it stands to suffer more compared to the plaintiffs. In support of that argument, it argues that, the Project is of national economic importance. Given that importance, it says it has already incurred costs over K20 million in preparations for a development forum. Also, it says an agreement with the State to install, commission and start-up the State’s power plant at the PNG LNG Project plant site pursuant to an agreement with the State to address the countries power needs will be jeopardized. Further, it goes back to its argument that Mr. Bernard’s clan has been identified and has been included in the Ministerial Determination by reason of which his clan will be able to participate in a development forum. Furthermore, it goes on to say the Kiunga Local-level Government will be able to participate at a development forum.
112. Save only for the argument concerning the agreement with the State to generate power, I have already covered these arguments or points. Additionally, I make this point. There is no law that says, the more important an economic activity is, the lesser the need to comply with requirements of the law. If that were the case, there would be chaos. Instead, the law requires all persons, developers and State servants and agents alike to ensure all projects of whatever size, shape, form and importance meet the requirements of the law. Any costs however large or small incurred without due compliance of the requirements of the law cannot be an impediment to the dispensation of justice. The first most critical question in any judicial consideration is what is the relevant law and whether the requirements of the law have been met before anything else. The requirements of the law in this case as discussed in detail above is mandatory and indispensable. I remind myself again that, apart from the Minister for DPE, the State has made a decision not to grant the developers application for a PDL because certain relevant minimum statutory requirements have not been met by the Developer.
(4) Undertaking as to damages
113. This leads me to the second last matter raised by the Developer which concerns the requirement for an applicant for interim injunction to give an undertaking as to damages. The Developer’s argument is that the Landowners should have provided evidence of their means to support their filing or giving an undertaking as to damages. The argument here is analogous to the often failed argument that impecunious litigants should give security for costs before they could take any further step in their proceeding. The reasoning behind this is very simple. The people must be able to access their Courts and seek and secure appropriate remedies for any actual or possible breach of their rights and or interests without being required to provide, clearly something they cannot. The Supreme Court decision in Application by David Lambu v. Peter Ipatas and Edward Konu (The Provincial Returning Officer) and The Electoral Commission (No 3)[67]in the following terms is clearly on point.
“... we bear in mind the principle that in a cause of action in the National Court, insolvency or poverty of the plaintiff is no ground for requiring security for costs .... The impecuniosity of a litigant ought not be used as a reason to penalise the litigant from having access to the courts”
114. No local authority is cited in support of what the developer is urging against the plaintiffs. Reliance is placed on the following passage from Hodgson CJ in Donnelly v. Amalgamated Television Services Pty Ltd:[68]
“On the balance of convenience, the fact that the applicant’s undertaking as to damages is probably of little or no value is a powerful discretionary factor against the grant of an interlocutory injunction.”
115. Counsel did not assist with submissions in terms of the context in which this comments or observations were made. The observation may be relevant and appropriate in the Australian context. How is that relevant and applicable to the circumstances of PNG? No reason is advance to venture out of our jurisdiction and how the case cited meets the requirements under Sch 2.3 of the Constitution, and in particular the circumstances and needs of the country. Most of PNG’s citizens are impecunious or cannot afford large legal costs and stand up for their rights on account of their impecuniosity and ignorance. Many of their rights and interests have been trampled over. Only in a few cases, a few people have come to the Court against the financial and other might of foreign business and other interests especially in the resources extraction sector. In those few cases, injunctions have been granted without going beyond ensuring only that an undertaking as to damages is given. The same has been the case in all other cases in which injunctions have been granted. In these circumstances, I am not prepared to venture out of the usual requirement, which is for a person applying for an interim injunction to give an undertaking as to damages. There is usually no requirement for the applicant to produce evidence disclosing his means to support his undertaking.
116. If despite my above position the additional requirement advocated by the Developer was applicable, it requires evidence addressing that requirement. Going by the well accepted principle of he who alleges must prove it, the duty was on the Developer to produce evidence to support its contention. That, it has also failed to do. Consequently, for this reason this argument must also fail.
(5) Interest of Justice
117. The final matter I now turn to is the question of “interest of justice” raised by the Developer. The Developer points out and I accept that the Court must consider all of the arguments and matters before it and arrive at a decision that best serves the interest of justice and to ensure it is not miscarried. I believe, in considering the arguments for and against both sides of the arguments and arriving at my decision per the foregoing, I have exercised much care and caution to ensure I have allowed myself to be guided by both the relevant facts and the law, given the substantial but differing interests at stake here to avoid in so far as is possible irreparable harm or damage to either of the parties. At the end, the balance has tipped in favour of the plaintiffs who stand to suffer irreparable damage or harm unless all of the mandatory requirements of the law as elaborated above are met.
118. Having regard to all of the foregoing reasons, my decision and orders are as follows:
________________________________------------------------___________________
Kolo& Associates Lawyers: Lawyers for the Plaintiffs
Mawa Lawyers: Lawyers for the 1stDefendant
Solicitor General: Lawyers for the 2nd, 3rd and 4thDefendants
Allens Lawyers: Lawyers for the 5thDefendant
[1] The developer of the P’nyang LNG Project, in Kiunga, Western Province.I understand this company is a subsidiary of Esso Highlands,
the developer of the first of the LNG Project.
[2]Unless otherwise indicated or the context suggests, all reference to statutory provisions will be of the Oil and Gas Act 1998
[3]Dr.digim’Rina was engaged at the request of the Developer.
[4]Central Provincial Government v NCDC (2013) N5262
[5] Two of the common modes of commencement of proceedings in the National Court - See O.4 r.1 of the National Court Rules
[6]An exception to this might be in the area of election petitions despite the relevant Organic Law excluding the technical rules of
pleading and evidence. The leading case there is Mune v. Anderson Agiru&Ors (1998) SC590, as recently endorsed by the decision in John Kekeno v Philip Undialu (2015) SC1428.
[7](2007) SC1321.
[8][1986] PNGLR 203.
[9](s. 23).
[10](ss. 56 and 57).
[11](ss. 39 and 40).
[12]See s.25 and subsection (3) in particular.
[13]http://www.firewall
logistics.com/services/social-mapping/.
[14]Social License to Operate: How to Get It, and How to Keep It Brian F. Yates and Celesa L. Horvath found at
http://www.nbr.org/downloads/pdfs/eta/PES_2013_summitpaper_Yates_Horvath.pdf.
[15]http://socialicense.com/definition.html. For an outline of the essential elements see https://www.sbc.org.nz/__data/assets/pdf_file/0005/99437/Social-Licence-to-Operate-Paper.pdf.
[16] Sections, 44 (freedom from arbitrary search and entry), 48 (right to freedom of employment), 49 (the right to privacy) and 51 (right
to freedom of information)
[17](2015) N6174.
[18]Part III, Div. 2, Sections 21-31 OGA.
[19]Appointed under s. 11 and is the chairman of the PAB.
[20] Established under s.13 of the OGA.
[21]Section 21 OGA
[22]Section 23(4)OGA
[23]Section 25OGA
[24]Section 29 OGA
[25] Section 37 OGA
[26]Section 31 (2) OGA. Section 34 provides for the declaration of a location following the discovery of Petroleum.
[27]Sections 38 and 39 OGA.
[28] See s.42OGA.
[29]Imposed by ss. 46(a)(iii) and 47(2) OGA.
[30]Section 53(1) OGA. Under s. 53(3), a person other than a holder of a PPL or PRL may also apply for a PDL.
[31]Section 54(1)(c) OGA.
[32]Section 54(2)(b)
[33]Chapter 19.
[34][1978] PNGLR 295.
[35][1981] PNGLR 265.
[36](Chapter 147) consolidated to No 29 of 2009.
[37] This and the rest of this discussions based on s.1 of the Act.
[38]Application for recognition must include list of members and their relevant customary land – see s. 5(2) of the Act.
[39]Section 5(5) of the Act.
[40] Reading s. 5(3) and (5) of the Act together.
[41]Section 5B of the Act.
[42]Section 5B (1) and (2) of the Act.
[43]Hargy Oil Palm Ltd v.Ewasse Landowners Association Inc (2013) N5441; Odata v. Ambusa Copra Oil Mill and National Provident Fund Board (2001) N2106.
[44]Section 11 of the Act.
[45] Unless otherwise indicated the discussion in this paragraph is based on the work of Marat Rashitovich Safiullin1, PolinaOlegovna
Ermolaeva1, Oleg PetrovichYermolaev&RenatNailevichSelivanov, Current Perspectives on Social Mapping of Urban Territories, Asian Social Science, Vol. 11, No. 6; 2015 ISSN 1911-2017 E-ISSN 1911-2025, published by Canadian Center of Science and Education.
[46]www.fauna–flora.org/wp-content /uploads/Social-Mapping.pdf.
[47] Mklein818, The missing elements: social mapping and social analysisJanuary 14, 2016: Found at https://changingtheterms.com/2016/01/14/the-missing-elements-social-mapping-and-social-analysis; See also Iowa State University Extension and Outreachhttp://www.extension.iastate.edu/ilf/sites/www.extension.iastate.edu/files/ilf/WatershedAssessmentToolkit_DSocial-mapping.pdf.
[48]Ibid note 45.
[49]Section 7 of the Lands Act 1998.
[50] Sections 10 (3) and (4) and 13 (1) of the Act.
[51]Section 9 (1) of the Act.
[52]Lee & Song Timber (PNG) Co Ltd v. Nathanael Burua (2003) N2404; Aloysius Eviaisa v. Sir MekereMorauta (2001) N2144; Sir Julius Chan v. The Ombudsman Commission (1998) N1738; Rage Augerea v. The Bank South Pacific Ltd (2007) SC869; Harry Tovon&Ors v. The State & Anor (2016) N6240 (for latest judgment on point).
[53] Per Andrew J in Robinson v. National Airlines Commission [1983] PNGLR 478 at p.482; See also Mas International Ltd v. David Sode (2008) SC944.
[54](2008) SC976.
[55](2002) SC690.
[56](2009) SC960.
[57](2012) SC1172.
[58](2008) SC905.
[59] See Kerry Lero trading as Hulu Hara Investments Ltd v. Philip Stagg (2006) N395, later approved in Philip Takori v Simon Yagari (2008) SC905 and Michael Kuman v.Digicel (PNG) Ltd (2013) SC1232
[60](2002) N2309.
[61] See for example the decisions in, SiotiBauf and LavoiNodai v. Poliamba Pty Ltd [1990] PNGLR 278 and Eastern Highlands Provincial Government v. AitaIvarato [1998] PNGLR 268.
[62]See the cases cited in note 51.
[63]Section 35 of the Constitution.
[64](2007) N3144.
[65]Telikom PNG Ltd v. ICCC (2008) SC906
[66](1982) N393.
[67](1999) SC601.
[68] (1998) 45 NSWLR 570 at 575.
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