N6643
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.602 OF 2016

BETWEEN
PNG RESOURCES CORPORATION LTD
Plaintiff

AND

MR PHILIP SAMA, MANAGING DIRECTOR, MINERAL RESOURCE AUTHORITY
First Defendant

AND

STANLEY NEKITEL as REGISTRAR OF TENEMENT
Second Defendant

AND

MINERAL RESOURCE AUTHORITY
Third Defendant

AND

THE INDEPENDENT STATE OF APPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J
2017: 9th& 13th February
JUDICIAL REVIEW – Leave sought to review rectification of Register of Tenements – Change of date of lodgement of application for exploration licence by Registrar of Tenements – Direction given by Managing Director - Whether actions of Registrar and Managing Director reviewable – No substantive decision made on grant of exploration licence – Appeal process available – Leave refused – Mining Act – Sections 30 and 125

Cases cited:
Kekedo v. Burns Philip (PNG) Pty Ltd [1988-89] PNGLR 122

Counsel:
Ms.A.Kimbu,for Plaintiff
Mr.E. Geita, for Fourth Defendant

RULING

13th February, 2017

1.	MAKAIL J: The Plaintiff is one of five applicants for an exploration licence over a portion of land located at Mt Kare after the previous licence holder Summit Development Limited’s (“Summit”) exploration licence expired and was not renewed by the Minister for Mining (“Minister”) on 14th December 2015.  The others are Summit, GMG Global Mining Group Limited (“GMG”), New Britain Lime and Cement Limited and ACM Contract Mining (PNG) Limited.  

2.	It seeks leave to apply for judicial review of the First Defendant’s rectification of the Register of Tenements under Order 16 of the National Court Rules. This is what it alleged the First Defendant did: on 14th March 2016 the First Defendant changed the date of lodgement of the application of GMG from 18th December 2015 to 14th January 2016 following a direction from the Second Defendant.  The rectification was done pursuant to Section 125 of the Mining Act.

3.	Section 125 states:
	“125.	Rectification of the Register.
(1)	Where the Registrar or another person discovers that there has been—
(a)	an omission of an entry from the Register or the rejection of an instrument presented for registration; or
(b)	an entry made in the Register without sufficient cause; or
(c)	an entry wrongly existing in the Register; or
(d)	an error or defect in an entry in the Register,

the Registrar or that other person may make an application to the Managing Director for rectification of the Register.

(2)	On receipt of an application under Subsection (1), the Managing Director may—
(a)	make an investigation into the matter; and
(b)	direct the Registrar to rectify the Register in any matter which the Managing Director considers requires rectification.

(3)	A person may appeal to the National Court against a direction or decision or to seek a decision by the Managing Director under Subsection (2), and the National Court may make such order as it considers necessary to settle the matter.

(4)	The Registrar shall give effect to an order of the National Court under Subsection (3).” (Underlining is mine).

4.	The dispute and centre of controversy as the Plaintiff contended is that, it was an attempt by the Defendants to circumvent Section 30 of the Mining Act.  According to the Plaintiff, this section provides a “moratorium” of 30 days after a licence has expired before an application for an exploration licence can be made to the Registrar of Tenements. It is this moratorium that the Plaintiff alleged the Defendants and GMG breached.

5.	 When the exploration licence of Summit expired on 14th December 2015 the 30 days moratorium ran from that date until 14th January 2016.  Instead of waiting for the moratorium to end, the First Defendant accepted and registered GMG’s application on 18th December 2015.  That was four days after Summit’s exploration licence had expired and importantly, well inside the moratorium period.

6.	Subsequently, the First Defendant changed the date of 18th December 2015 to 14th January 2016 at the direction of the Second Defendant to bring the date of the application outside the moratorium period of 30 days.  Consequently, GMG’s application is before the Mining Advisory Board for consideration.

7.	However, the real issue is whether the actions of the First and Second Defendants are reviewable.  Section 125 (3) (supra) is quite clear on this issue and how the dispute can be resolved.  It is by way of an appeal to the National Court.  But it would seem that the question of mode of proceedings was not given enough consideration before the Plaintiff commenced these proceedings.

8.	It was brought up by the Court when the Plaintiff relied on Section 125 to show where the First and Second Defendants erred in performing their statutory duty.  Nonetheless, the Plaintiff strongly argued that it is open to the Court to find that the word “appeal” includes “review” and that it has used a correct mode of proceedings to invoke the Court’s jurisdiction under Order 16 of the National Court Rules to seek judicial review, and that it has made out a prima facie case for grant of leave to review the actions of the First and Second Defendants.

9.	I am not persuaded by the Plaintiff’s argument.  If that is the intention of the Legislators, they would have made that clear in this provision by using the word “review” instead of an “appeal” like in the case of a review from a decision of the Minister for Foreign Affairs and Immigration to the National Court under Section 19 of the Migration Act. Then compare that case with Section 38 of the Land Titles Commission Act where an appeal lies to the National Court from a decision of the Land Titles Commission whether, after a review to the Chief Commissioner or otherwise.

10.	And there is a reason for that.  If one looks at the scheme of the Mining Act, the preamble makes it quite clear that it is to regulate the law to minerals and mining, and for related purposes.

11.	The acceptance and registration of an application for an exploration licence by the Registrar, its assessment by the Mining Advisory Board and recommendation to the Minister to grant an exploration licence to the successful applicant forms part of the whole decision-making process by which a decision is made by the Minister to grant an exploration licence: Sections 20, 24, 98, 101 and 103 of the Mining Act.

12.	In my view, this process must not unnecessarily be interfered with or stopped by the Court unless a decision by way of a grant is made by the Minister. It is for this reason that I am of the view that, unless a grant of an exploration licence is made by the Minster, there is no substantive decision by which the Court can review.  

13.	It is also for this reason that, there is an appeal process by which an aggrieved party may seek to challenge the actions of the Registrar and Managing Director in this instance, changing of the lodgement date of the application of GMG by the First Defendant. 

14.	Finally, judicial review is not available if there is another remedy available to an aggrieved party.  Kekedo v. Burns Philip (PNG) Pty Ltd [1988-89] PNGLR 122.In this instance, although strictly there is no administrative or statutory remedy available to the Plaintiff, I am of the view that it has recourse by way of an appeal to the National Court.  The appeal process must be exhausted first.  As to form and procedure of appeal, I find none in the Mining Act. Assistance may be sought from Order 18 of the National Court Rules to commence it.

15.	I conclude that the actions of the First and Second Defendants are not reviewable and that an appeal is the correct mode of proceedings.

16.	Leave is accordingly, refused.  Costs shall follow the event.
Ruling and orders accordingly,
________________________________________________
Greg Manda Lawyers: 	Lawyers for Plaintiff
Solicitor-General:		Lawyers for Fourth Defendant