N6586
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
	
OS (JR) NO 694 OF 2013

NATHAN KOTI, FOR AND ON BEHALF OF DUMUNA AKIKI CLAN OF DAMAENDE VILLAGE, NAHU RAWA LLG, 
RAI COAST DISTRICT, MADANG PROVINCE
First Applicant

SAWEN MOLI, FOR AND ON BEHALF OF GAMBAI CLAN 
OF RAMU VILLAGE, RAI COAST DISTRICT, MADANG PROVINCE
Second Applicant

SIMON T MACKERELL, FOR AND ON BEHALF OF OIMOKU DUMUNA TRIBE, OF GOVIRO VILLAGE, NAHU RAWA LLG, 
RAI COAST DISTRICT, MADANG PROVINCE
Third Applicant

OPUSIE AMESOHAFA, FOR AND ON BEHALF OF KOGULARI CLAN, HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE
Fourth Applicant

DAVID T ITANO, FOR AND ON BEHALF OF RANOFI CLAN, 
HENGANOFI DISTRICT, EASTERN HIGHLANDS PROVINCE
Fifth Applicant

V

HIS WORSHIP DAVID SUSAME, 
PROVINCIAL LAND COURT MAGISTRATE
First Respondent

NABURA MORRISA, FOR AND ON BEHALF OF BUMBU, BOPIRUMPUN, MUSUSAM & SANKIANG VILLAGES, (MARI GROUP), USINO-BUNDI DISTRICT, MADANG PROVINCE
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

	BRUCE YAKU, FOR AND ON BEHALF OF 	
SANGAN SAMBIYAL CLAN, OF MUSUAM, 
USINO-BUNDI DISTRICT, MADANG PROVINCE
	Fourth Respondent	

Madang: Cannings J
        2016: 10 December, 
2017:  10 January 

JUDGMENTS AND ORDERS – judicial review of proceedings of Provincial Land Court– appropriate orders to make after upholding judicial review – alternative dispute resolution – whether National  Court can give effect to mediated agreement in absence of agreement of all parties.

A successful application for judicial review of a decision of a Provincial Land Court resulted in the question of what further orders should be made to determine the proceedings being referred to mediation. The mediation was almost entirely successful in that all but one of the parties (the first applicant) agreed on how the judicial review proceedings and underlying disputes should be resolved. The first applicant applied for orders that the mediation be terminated and that the question of final orders to be made in the judicial review proceedings be set down for further hearing. The Court refused to make those orders and instead sought an opinion from the mediator as to the preferred course of action. The mediator responded that in his opinion the first applicant did not truly represent the people he was claiming to represent, and therefore the mediation had been concluded and should be given effect. The Court invited all parties to the judicial review to make submissions on the mediator’s opinion and the future course of the proceedings. The first applicant submitted that the mediator’s opinion should be rejected, the mediation should be terminated and the judicial review proceedings should proceed to finality. All other parties submitted that the mediator’s opinion should be endorsed and the mediated agreement should be given effect without further hearing. 

Held:

(1)	Though the conventional approach of the National Court in judicial review proceedings, upon finding legal error in the decision that has been reviewed, is to quash the decision and/or remit the decision for reconsideration and not to stand in the shoes of the original decision-maker or otherwise make a decision on the merits, the Court should in exceptional circumstances feel free to depart from convention and exercise the power available to it under Section 155(4) of the Constitution, to make such “such other orders as are necessary to do justice in the circumstances of a particular case”, even if that means making a decision on its merits and even where questions of customary land ownership are involved. 

(2)	There were exceptional circumstances in the present case as the disputes underlying the judicial review proceedings had continued on a course of mediation and litigation for a period in excess of 20 years, and the mediated agreement represented a consensus of all but one of the parties to the judicial review proceedings.

(3)	It was necessary to do justice in the circumstances of this particular case to order, without further hearing, that the mediated agreement be given effect as an order of the National Court and that the judicial review proceedings be determined accordingly. 

Cases cited

The following cases are cited in the judgment:

Chan v Ombudsman Commission [1998] PNGLR 171
Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Koti v Susame (2015) N5860

DETERMINATION OF ORDERS

This was a determination of the appropriate orders to be made, after a successful application for judicial review.

Counsel:

G Pipike, for the first Applicant
S Moli, the second Applicant, in person
S T Mackerell, the third Applicant, in person
O Amesohafa, the fourth Applicant, in person
D T Itano, the fifth Applicant, in person
B Tabai, for the second Respondent
B Yaku, the fourth Respondent, in person

10th January, 2017

1.   CANNINGS J:  This is a determination of the question of what further orders should be made in these judicial review proceedings. The question has arisen in the following circumstances.

HISTORY

2.   On 13 February 2015 I upheld an application by Nathan Koti (the first applicant) and four others for judicial review of a decision of the Madang Provincial Land Court, constituted by his Worship Mr David Susame, dated 16 August 2013, concerning ownership of customary land forming part of the Ramu Sugar estate, in the Ramu Valley of Madang Province (Koti v Susame (2015) N5860).

3.    The Provincial Land Court’s decision was to dismiss appeals by the various clans and tribes represented by the five applicants, Nathan Koti, Sawen Moli, Simon T Mackerell, Opusie Amesohafa and David T Itano, against a decision of the Local Land Court, constituted by Local Land Court Magistrate his Worship, Mr Ignatius Kurei, and Land Mediators, Mr Anis Animor and Mr David Harry, dated 30 March 2007. The Local Land Court decision was in favour of the second respondent, Nabura Morissa, and various villages he represents, the Mari Group, and the fourth respondent, Bruce Yaku, and the group he represents, the Sangan Sambiyal Clan.

4.    I upheld the applicants’ argument that the Provincial Land Court’s decision to dismiss the appeal against the Local Land Court’s decision was unreasonable. The Provincial Land Court had not adequately considered compelling evidence that the decision of the Local Land Court that was formally recorded did not reflect the fact that the two Land Mediators, Mr Animor and Mr Harry, made decisions contrary to the formally recorded decision.

OPTIONS 
5.   I quashed the Provincial Land Court’s decision and then addressed the question of what other orders should be made.  I considered various options, including:

(a)	remitting the matter to the Provincial Land Court for a rehearing of the appeal against the decision of the Local Land Court of 30 March 2007;

(b)	remitting the matter to a freshly constituted Local Land Court;

(c)	confirming what the applicants claim to be the majority decision of the Local Land Court.

6.   I did not, however, favour any of them, for the following reasons:

(a)	remitting the matter to the Provincial Land Court would lead to a third appeal against the decision of the Local Land Court, and this should be avoided;

(b)	remitting the matter to a freshly constituted Local Land Court would lead to a third Local Land Court hearing and this should also be avoided;

(c)	confirming what was alleged to be the majority decision of the Local Land Court was problematic as the decisions of the two Land Mediators, though contrary to the Chairman’s decision, were not expressed in the same terms, and the circumstances in which the judgment of 30 March 2007 was handed down were so unsatisfactory that it was unsafe to base any final decision on what actually transpired.

7.    I considered referring the matter to the Chief Commissioner of the Land Titles Commission, so that a special Land Titles Commission might be set up under the Land Titles Commission Act. However, I decided that before going down that path, National Court-annexed mediation should be tried. I referred the question of what further orders should be made to determine the proceedings, to mediation.  

MEDIATION

8.    Justice Kandakasi was appointed as mediator and conducted an extensive mediation at Ramu from May to September 2016. It was almost entirely successful in that all but one of the disputing parties (the first applicant) agreed on how the judicial review proceedings and the disputes underlying those proceedings should be resolved. A 27-page “mediated agreement” dated 11 September 2016 was signed by the disputing parties and other persons acknowledged by the parties as having a legitimate interest in the matter: representatives of other landowner clans and Ramu Agri Industries Ltd (the owner and operator of the Ramu Sugar estate).

DISAGREEMENT

9.   The first applicant confirmed his disagreement with the mediated agreement by applying, by notice of motion, for orders that the mediation be terminated and that the question of final orders to be made in the judicial review proceedings return to Court for hearing. 

10.    I refused the application and sought an opinion from the mediator as to:

(i)	whether there is a realistic prospect of the mediation being concluded within a reasonable period through the parties reaching agreement on all of the issues present in the dispute for the purposes of Rule 59(a) of the ADR Rules, or 
(ii)	whether it would better serve the interests of justice for the mediation to be terminated forthwith under Rule 59(b) of the ADR Rules, or
(iii)	whether some other course of action should be taken by the Mediator and/or the Court to progress these proceedings to determination.

11.   The mediator responded in the following terms:

This matter was referred for resolution by mediation by order of the Court made on 13 February 2015. The mediation took place on 19 August 2015, 12-15 May 2016, 8-13 July 2016 and 9-12 September 2016 and an agreement was finally reached and signed off by all parties except for Nathan Koti [the first applicant]. This was not surprising. It was clear from the very beginning that Mr Koti did not truly represent the wishes of the Dumuna Akiki clan or tribe he was claiming to represent. The people openly and publicly stated and made this clear throughout the mediation process up to when the agreement was finally reached. It was also clearly stated that although Mr Koti is part of the Dumuna Akiki clan or tribe, he and his immediate family or sub-grouping do not own any land in the Ramu Valley. His immediate interest is in the Rai Coast area towards the coast. Given this, it was not surprising that Mr Koti refused to sign the agreement.

Having regard to what is stated above, I answer each of the questions as follows:

1.	The court ordered mediation resulted in an agreement by the real landowners and there is nothing further required except only to give effect to the agreement.

2.	As the mediation concluded with the final agreement of the real landowners, all that needs to be done is filing a mediator’s certificate confirming this position.

3.	In accordance with the real landowners and most of the parties agreement which could start with a filing of a discontinuance of the proceedings.

I invited all parties to the judicial review proceedings to make submissions on the mediator’s opinion and the future course of the proceedings. 

SUBMISSIONS 

12.    Mr Pipike, for the first applicant, Mr Koti, submitted that the mediator’s opinion should be rejected, the mediation should be terminated and the judicial review proceedings should proceed to finality in the normal way after hearing submissions on what final order the Court should make. Mr Pipike submitted that the mediation had miscarried as unnecessary people (those who are not parties to the judicial review) had been allowed to participate and this had led the parties, and the mediator, to lose focus on what should have been the subject of the mediation: determination of ownership of customary land. Instead, the subject of the mediation became benefit sharing. The mediated agreement has become a benefit sharing agreement, when it should have been an agreement about customary land ownership. In any event, the Court cannot sanction the purported agreement as it is not an agreement. Mr Koti exercised his right not to sign it and he cannot be forced by the Court to agree to something he does not agree to. Mr Koti and his clan representatives have been the parties asserting land ownership for the last 20 years and he still wants to assert those claims. The problem is that other parties have jumped on the bandwagon and want royalties to which they have no moral or legal right. The mediation should be declared as having failed and terminated and the matter should be brought back to Court. Alternatively, the Court could just enforce what is really the majority decision of the Local Land Court of 30 March 2007: the disputed land belongs to Mr Koti’s clan.

13.    All other parties submitted that the mediator’s opinion should be endorsed and the mediated agreement should be given effect and the judicial review proceedings concluded without further ado. 

CONSIDERATION

14.   I acknowledge the validity of the points made by Mr Pipike, on behalf of Mr Koti. The mediation followed an unconventional course in that people who were not parties to the court proceedings were allowed to participate in the mediation, to the extent that they became parties to the mediated agreement. However, it appears that this was done for very good reasons. Mediation of the underlying disputes over customary ownership of the subject land started in the mid-1990s. Litigation has continued in multiple proceedings before the Local Land Court, the Provincial Land Court and the National Court since 2002. Justice Kandakasi evidently saw the opportunity to get this long-running controversy resolved finally, by consulting and engaging in discussion with people who, though technically not parties to the judicial review proceedings, had a legitimate interest in the real controversies and disputes underlying the proceedings. It seems that Mr Koti was the only party to the judicial review proceedings who disagreed with that unconventional approach.

15.    Mr Pipike has argued that the mediated agreement is not, strictly speaking, an agreement as Mr Koti refused to sign it. Yes, that is correct, but does it follow that he cannot be bound by it? Especially if the Court elevates its status beyond an agreement binding those who did sign it, to the status of a court order? That is what all parties, bar one, want to happen, and I am hard pressed to find a good reason to defeat such an apparently legitimate expectation. 

16.    Mr Pipike’s point about the mediated agreement being a benefit sharing agreement, is another good one. But what is wrong with the parties agreeing now on benefits sharing? Doesn’t that reflect the reality underlying the disputes about customary land ownership? The parties want to prove customary ownership of land so that they can receive royalties, the amounts of which are directly connected to customary land ownership. Labelling the mediated agreement as a benefit sharing agreement does not force the conclusion that the agreement should be disregarded.

HESITATION

17.    I am therefore inclined to the view that the best thing to do is endorse the mediated agreement as an order of the National Court. I have come to that view, not without hesitation. I remind myself of two significant features of this case. 

18.  First, these are judicial review proceedings. The National Court has reviewed the decision of the Provincial Land Court and found legal error in it. The conventional approach of the Court in judicial review proceedings, upon finding legal error in the decision that has been reviewed, is to quash the decision and/or remit the decision for reconsideration. Not stand in the shoes of the original decision-maker or otherwise make a decision on the merits The purpose of a judicial review is to review the decision-making process, not the merits of the decision (Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122, Chan v Ombudsman Commission [1998] PNGLR 171). I will be departing from convention if I “descend” into the merits of the subject matter of the decision of the Provincial Land Court. Can I do that? 

19.  Secondly, underlying the judicial review proceedings are questions of ownership of customary land. The National Court has no jurisdiction to determine such questions (The State v Lohia Sisia [1987] PNGLR 102). Will I be acting in excess of jurisdiction if I endorse the mediated agreement?

20.   I answer those questions yes, and no, respectively. I am not bound by law to take the conventional approach to determination of judicial reviews. The Court will not be making a determination of customary land ownership by giving effect to a mediated agreement, which reflects the positions of the vast majority of parties in dispute over ownership of customary land.

JUSTICE 

21.   I am comforted, indeed emboldened, in overcoming those hesitations by the striking authorisation of Section 155(4) of the Constitution, which states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.[Emphasis added.]

22.    I am obliged to depart from the conventional approach to making orders in judicial review and to make a decision that borders on determining questions of ownership of customary land as there are exceptional circumstances in this particular case. The disputes underlying the judicial review proceedings have continued on a course of mediation and litigation for more than 20 years. The mediated agreement represents a consensus of all but one of the parties to the judicial review proceedings and other persons with a legitimate interest in the underlying disputes.

23.    It is necessary to do justice in the circumstances of this particular case to order, without further hearing, that the mediated agreement be given effect as an order of the National Court, and that the judicial review proceedings be determined accordingly. The parties will bear their own costs.

ORDER

(1)	Further to the order of 13 February 2015, and pursuant to Section 155(4) of the Constitution, the mediated agreement dated 11 September 2016, filed in these proceedings on 3 October 2016, shall, notwithstanding that it has not been signed by all parties to these proceedings, as and from 1 February 2017, be regarded for all intents and purposes and given effect as an order of the National Court made in these proceedings for the purpose of determining these proceedings.

(2)	These proceedings shall be deemed to be determined on 1 February 2017.

(3)	Subject to any specific costs order made in the course of the proceedings, the parties shall bear their own costs of the proceedings. 

Judgment accordingly,

_____________________________________________________
GP Lawyers:           Lawyers for the first Applicant
Solicitor-General:   Lawyer for the first & third Respondents		
Tabai Lawyers:      Lawyers for the second Respondent			
Manase Lawyers:   Lawyers for the fourth Respondent