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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 422 OF 2019
BETWEEN:
BARRICK (NIUGINI) LIMITED
Plaintiff
AND:
MINERAL RESOURCES ENGA LTD
First Defendant
AND
MINERAL RESOURCES AUTHORITY
Second Defendant
AND
STANLEY NEKITEL in his capacity
as the Registrar of Tenements
Third Defendant
AND
THE INDEPENDENT STATE OF PNG
Fourth Defendant
Waigani: Thompson J
2019: 26 July & 2 August
PRACTICE AND PROCEDURE - Application to dismiss proceedings – Declaratory relief - principles - whether or not opposing views amount to a controversy - whether or not issue is real or hypothetical - interpretation of Mining Act 1992 - effect of savings provisions
Cases Cited:
Papua New Guinea Cases
Amos Ere v NHC and Anor (2016) N 6515
Dangnenga Resources Development Ltd v Vanimo Jaya Ltd (2018) N 7134
Dent v Kavali (1981) PNGLR 48
Garo v the Police [1985] PNGLR 320
Ipatas v Enga Provincial Government (1997) PNGLR 101
Matu Mining Pty Ltd v Moaina (1995) PGNC 48
Phillip Takori and others v Simon Yagari and others (2007) SC 905.
Placer Dome (PNG) Ltd v Yako (2011) PGNC 304
Pokia v Yallon (2015) SC 1662
Overseas Cases
Bass v Permanent Trustee Co. Ltd [1999] HCA 9; (1999) 198 CLR 334
Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 12 CLR 297
Royal College of Nursing (UK) v Department of Health and Social Security [1980] UKHL 10; (1981) AC 800
The Russian Commercial And Industrial Bank v British Bank For Foreign Trade Ltd (J 921) 2 AC 438
Counsel
Mr. M M Varitimos QC with Mr. D. Wood, for the Plaintiff
Mr. J A. Griffin QC with Mr. G. Geroro and Mr. L. Gavara - Nanu Jnr, for First
Defendant
Mr. D. Hill with Ms. 1. Guba, for the Second - Fourth Defendants
INTERLOCUTORY APPLICATION
2nd August, 2019
1. THOMPSON J: On 21 June 2019 the Plaintiff issued this Originating Summons, seeking Declarations that the Special Mining Lease held by the Porgera Joint Venture ("the SML") will continue in force and that the PJV can continue to use and mine the land, beyond the expiry of the SML on 16 August 2019 and until the determination of its application for an extension of the SML, which had been lodged with the second to fourth Defendants on 29 June 2017.
2. On 28 June 2019 the first Defendant filed an application pursuant to the
relevant National Court Rules, to dismiss the proceedings for being frivolous,
vexatious, failing to disclose a cause of action, and an abuse of process.
3. The principles applicable to such applications are well established, and along
with the case authorities, are set out by the Supreme Court in Phillip Takori and
others v Simon Yagari and others (2007) SC 905. They are:
(a) a claim may be frivolous if it is so obviously untenable that it cannot possibly succeed if it goes to trial;
(b) a claim may be vexatious if it amounts to a sham, or cannot succeed and amounts to harassment of the other party;
(c) a claim may fail to disclose a reasonable cause of action if it does not involve a right given by law or does not disclose all the facts necessary to establish the legal elements of the claim.
(a) the court's discretion must be exercised sparingly, and only where the
claim is obviously and almost incontestably bad so that the court can say at once that the claim is insufficient, even if proved,
to entitle the Plaintiff to the relief sought;
(b) the claim must be so bad or vague that it cannot be cured by further and better particulars or by amendment.
(a) there must exist a controversy between the parties
(b) the proceedings must involve a right
(c) the Plaintiff must have a proper interest in obtaining the relief
(d) the controversy must be subject to the court's jurisdiction
(e) the defendant must have a proper interest in opposing the relief
(f) the issue must be real, not merely hypothetical, or one where its
resolution would be of no practical utility.
9. If the Plaintiffs interpretation is correct, the Porgera mine will continue
operating until the determination of its extension application. If the first Defendant's interpretation is correct, the Porgera mine
will close down and all Porgera mining
operations will cease, on 16 August 2019.
10. This issue is not merely academic, it is real and it has significant
consequences. It is not merely a matter on which the parties simply have a
difference of views, as submitted by the first Defendant, and it is not merely a matter on which the parties may reasonably continue
to hold differing views. It is
necessary for one view or the other to be found to be correct, because of the
significant consequences which flow from accepting one view or the other.
11. The dispute must be resolved, and its resolution will be of practical utility.
The first Defendant denies the existence of the rights claimed by the Plaintiff, and
therefore necessarily opposes the relief sought by the Plaintiff pursuant to those
rights. As participants in the PJV which is the holder of the SML, the Plaintiff has
a proper interest in obtaining the declaratory relief relating to the SML, and the first
Defendant has an interest in opposing that relief.
12. The Plaintiff has shown that this court has the power to grant declarations
under the common law and the Constitution, which is recognized in the National
Court Rules, and so has shown that the dispute is subject to the court's jurisdiction.
13. The dispute is based on actual facts which have already occurred, namely,
the issue of the SML, the pending expiry of the SML, the lodgment of an
application for an extension, and the first Defendants' objection to the grant of an
extension. The issue is therefore not hypothetical, and its result would have
significant practical utility in relation to the continuation of mining operations.
The proceedings therefore disclose all the elements of a claim for declaratory
relief.
14. Some of the matters set out in paras 2 (a) - (g) of the first Defendant's Motion,
are more relevant to the defence of the substantive proceedings. For example,
whether or not the PJV Management Committee was required to authorize the
lodgment of the extension application or the legal proceedings is a matter for
determination at the hearing. It is not relevant to the issue of whether or not the
Originating Summons is frivolous, vexatious or discloses a cause of action.
15. In relation to the principles relevant to the Motion to dismiss, the first
Defendant has failed to satisfy the requirements, in that:
(a) the claim for Declarations is based on the application of the Mining Act 1992 to the facts which have actually occurred, and is clearly not obviously untenable or doomed to failure;
(b) the claim for Declarations is not a sham and does not amount to
harassment of the Defendants. On the contrary, as the first Defendant has submitted, it may even benefit the first Defendant.
(c) the claim involves a right given by law, namely, the Mining Act 1992, and discloses all the facts necessary to establish the elements of a claim for the declaratory relief.
(d) the claim for Declarations is not incontestably bad, and this Court cannot say that even if it is proved at a hearing, it is insufficient to entitle the Plaintiff to the relief sought. On the contrary, if the claim is proved at a hearing, it will entitle the Plaintiff to the relief sought.
(e) The first Defendant has not identified any way in which the claim is vague or insufficiently particularized.
17. In relation to being an abuse of process, this appear to have been based on
para 2 (f) of the Motion, which was abandoned by the first Defendant. In any event,
the first Defendant is not a party to the other proceedings referred to, which involved different causes of action and issues, none
of the Plaintiffs in those proceedings are parties in these proceedings, which were dismissed for being an abuse of process, and
so there cannot be a multiplicity of proceedings.
18. For these reasons, the first Defendant's interlocutory application to dismiss the
proceedings, is refused. The first Defendant is to pay the costs of the Plaintiff and
the second to fourth Defendants.
19. Following the hearing of the Motion to dismiss, the matter proceeded to the
substantive hearing of the Originating Summons.
Background
20. On 21 June 2019 Barrick (Niugini) Limited issued this Originating
Summons against Mineral Resources Enga Ltd and the several State authorities
concerned with the renewal of the Porgera Special Mining Lease No. l(P)-"the
SML".
21. The Plaintiff seeks declarations that it and the first Defendant are permitted to
operate the mine and use the land the subject of the SML beyond its expiry on 16
August 2019 and until the determination of its application for an extension of the
SML.
22. The facts as set out in the Affidavit material, are not in dispute. The SML
was issued in May 1989 pursuant to the 1977 Mining Act Chapter 195 ("the
repealed Act") in accordance with the terms of a Mining Development Contract
entered into with the State in April 1989. The SML provides that it is held for 30
years with the right to renewal as provided in the Mining Development Contract
and the Act. Neither the SML nor the Mining Development Contract contained
any procedures for applying for renewal. The repealed Act contained in S75, a
right for the SML to be renewed, but did not set out the procedure for applying for
renewal. The repealed Act provided for Wardens and a Mining Advisory Board to
deal with matters relating to claims and to the administration of the Act. It
appeared that all matters including applications for renewal were made by lodging
applications with the Wardens Office, with no prescribed forms or procedures.
23. This 1977 Act was wholly repealed and replaced by the Mining Act 1992
("the Act"), which sets out the law relating to all mining and minerals in PNG.
The Act is much more comprehensive, and provides detailed procedures and forms
for the grant of, and application for extension of, an SML. It also contains,
relevantly, a new provision in S112 whereby an SML will continue in force until
the determination of an application for an extension made before expiry of the
SML.
24. On 29 June 2017 the Plaintiff made an application for extension of the SML
under S36 of the Act, which was over 2 years before the expiry of the SML. The
application is pending determination. The Plaintiff has been proceeding on the
basis that the application was validly lodged under S36 of the Act, and that
pursuant to S112, the SML will continue in force until the determination of the
application.
25. The Plaintiff and first Defendant, as the parties to the Porgera Joint Venture
Agreement, have taken opposing views as to whether or not the SML should be
extended, and if so, on what terms. As part of its opposition, the first Defendant has
"taken strong objection" to the SML being extended, has asserted that the
application for an extension has not been validly lodged, and that the SML will not
continue in force after its expiry on 16 August 2019, because the Act does not
apply to the SML. Since 2018, the first Defendant has repeatedly raised this issue
with the second to fourth Defendants and requested them to give their opinion on the correctness of its objections.
26. The third Defendant has deposed in his Affidavit that the extension application
was made under the Act, examined by him, and on being satisfied that it was in
order, was duly registered on 29 June 2017. The application was subsequently
processed under the Act, including the conduct of hearings and receipt of
objections. In response to the first Defendant's requests for an opinion on the
conflicting views, he said that the Mining Advisory Council had made a
recommendation to the Minister in 2018, who had sought legal advice from the
Office of the State Solicitor.
27. On learning of the first Defendant's objections and assertions, the Plaintiff
requested the first Defendant to support the continuing operation of the SML by
giving an assurance that the application for an extension had been properly lodged
under the Act and that the SML would continue in force until the determination of
the application, but the first Defendant refused. The Plaintiff then issued these
proceedings seeking Declarations as of right.
28. The second to fourth Defendants are affected by the relief sought, they do not contest the validity of the Plaintiff s application for an extension under the Act, and do not oppose the relief sought.
Issues
29. The first Defendant opposed the Originating Summons, first by making an
application to dismiss the proceedings, and then by opposing the substantive
hearing. The grounds for its opposition are:
(a) there is no controversy between the parties
(b) the Plaintiff has no right to relief, because that relief is only available under the Act, whereas the SML is governed by the repealed Act.
(c) the Plaintiff is only seeking an advisory opinion
(d) the Plaintiff did not follow the prescribed procedures of going through the Management Committee set up by the Joint Venture Agreement, before making the application for an extension or issuing these proceedings.
( e) All affected parties have not been joined
(f) The Plaintiff has not proceeded expeditiously and has failed to
provide documents to the first Defendant.
30. In relation to (a), there is sufficient evidence that the first Defendant has an
actual objection to the SML being extended, as set out in its affidavits. As part of
this, the first Defendant has not merely "queried the correctness of the course the
Plaintiff has taken", as submitted by the first Defendant - it has created uncertainty
by disputing the validity of the Plaintiff s course, has put forward its opposing
opinion to the second to fourth Defendants, and has requested those Defendants to act by making a decision on the correct course.
In its letter to the second to fourth Defendants of 4 January 2018, the first Defendant sought their decision on whether the repealed
Act or the Act applied to the extension of the application because "As a project of strategic national importance, the application of the correct
statute has significant implications for the country ". In a formal submission of 6 March 2018
opposing the renewal of the SML, the first Defendant said" .... It is our considered
view that the repealed Act continues to apply.... ".
31. In asking the Plaintiff and others to act by rejecting the Plaintiffs course of
action taken on the basis of its alleged rights, and accept its own proposed course
of action based on the Plaintiff s alleged lack of rights, the first Defendant has
created a controversy between it and the Plaintiff. In its correspondence, the first
Defendant has acknowledged the uncertainty created by its position, and has
requested the second to fourth Defendants to resolve the uncertainty by giving their opinion.
However, an opinion on the applicability of the repealed or current Act given by
the second to fourth Defendants could not resolve the uncertainty, because it would not be binding on the parties.
32. A number of the first Defendant's letters to the Plaintiff included statements
that the Plaintiff had "elected at its own risk" to apply under the current Act, and
that unless the Plaintiff acknowledged that the application had not been validly
made, it was proceeding "at its own risk". The first Defendant's conduct created
uncertainty as to the lawfulness of the Plaintiff s course of conduct, which could
not be resolved by an opinion from the second to fourth Defendants. It was a dispute which was ripe for resolution by the courts.
33. A dispute has arisen between the Plaintiff and the first Defendant, which
amounts to a real, not hypothetical, controversy between the parties. It has real and
significant consequences arising from whichever view is found to prevail,
including the cessation of all mining operations, with the consequent flow-on
effects and losses as set in the Plaintiff s affidavits.
34. In relation to (b), the Plaintiffs lack of a right is said by the first Defendant to
result from the SML being governed by the repealed Act, instead of by the Act. In
my view, this rests on an incorrect interpretation of S 173 (2) of the Act. This
provides, relevantly, that:
"Notwithstanding anything in this Act, a Special Mining Lease issued under the provisions of the repealed Acts .... shall continue in full force and effect as though the repealed Acts had not been repealed"
35. There is no dispute that the SML was issued under the provisions of the
repealed Act, and that it continues in full force and effect, even though the repealed
Act has been repealed.
36. However, the first Defendant submits that this Section goes further, and means
that " ..... the provisions of the repealed Act continue to govern the SML".
37. The Section does not say that at all. It says that the SML, not the repealed
Act, continues in force. If the Section had intended another meaning, it would
have said so. The natural and ordinary meaning of the Section is simply that the
SML remains in effect, and its validity cannot be challenged by the fact that the
Mining Act Chapter 195 has been repealed.
38. This is confirmed by reading the following provisions in SS175, 176 and 177
which refer to mining leases which are not special mining leases, mining areas and
land areas. Section 175 (2) provides relevantly, that:
"a mining lease .... which was in force immediately before the coming into operation of this Act shall remain in force subject to the repealed Acts and as though the repealed Acts had not been repealed, for a period of two years ..... and shall then expire." (emphasis added)
Section 175 (4), S176 (2), S 176 (4), and S177 (2) are in identical terms.
39. The legislature has deliberately distinguished SMLs from other leases, by
expressly providing that, unlike other leases, SMLs do not expire in two years, and
are not subject to the repealed Act.
40. The various approaches to statutory construction are set out in Enforcement
pursuant to Constitution Section 57, Application by Gabriel Dusava (1998) SC 581
and State v Downer Construction (PNG) Ltd (2009) PGSC 51. Regard must be
had to the plain meaning of the text, in light of the context and the purpose of the
Act, so as to ascertain a fair and liberal meaning that reflects Parliament's intended
meaning for the Act.
41. There is nothing in the context of S173(2), or the purpose of the Act as set
out in the preamble and in Hansard, or in the Interpretation Act or in the
Constitution, which would require the implied insertion of extra words in S173 (2)
so that it would read" .... an SML issued under the provisions of the repealed Act
shall continue in full force and effect subject to the repealed Act, and as though
the repealed Act had not been repealed."
42. The plain and ordinary meaning of S173 (2) has been considered and
confirmed by the Court in cases such as Matu Mining Pty Ltd v Moaina (1995)
PGNC 48 where the Court said:
" But the saving of the SML by virtue of Section 173 does not mean that the Lease continues to run on its own under the old Act alone. By Section 173, rights created under the old Act are preserved, but preserved by the new Act, which from the moment of its gazettal governs all mining in PNG".
43. In Placer Dome (PNG) Ltd v Yako (2011) PGNC 304, the court was
considering the actual same SML as in this current case. The court found that "S 173 (2) of the Mining Act 1992 permits a special mining lease granted under the
repealed legislation to continue in full force and effect as though the repealed
legislation had not been repealed" and went on to grant Declarations that" ..... The Plaintiff is entitled under the provisions of the Mining Act 1992 to exclusive
occupancy for mining ". The Court accepted that the effect of S173 (2) was
merely to preserve the validity of the SML, and not that the SML was governed by
the repealed Act. The court accepted that the SML was governed by the Act, not
by the repealed Act, and therefore granted Declarations under the Act to enforce
the Plaintiff's rights.
44. This interpretation is further reinforced by considering the consequences of
the first Defendant's proposed interpretation. Despite the fact that the repealed Act
has been completely abolished and therefore to be "treated as having never
existed" (see the Interpretation Act, and Garo v the Police [1985] PNGLR 320) and
that the abolished positions of the Wardens Office, Mining Advisory Board etc,
have not existed for 27 years, the procedures by which the Plaintiff can exercise its
rights under the SML including the right to apply for renewal, are submitted to be
somehow still governed by the repealed Act. The first Defendant has submitted that
the Plaintiff is only entitled to apply for a renewal under the provisions of the
repealed Act. The first Defendant has not shown how this could be possible, when
there is no longer a Wardens Office or Mining Advisory Board to receive and
administer an application, and all the provisions of the repealed Act ceased to have
effect 27 years ago.
45. On this point the first Defendant has not shown that there is any difference
between an extension and a renewal. This is consistent with the provisions of the
original Mining Development Contract which refers in clause 18.2 (c) to the SML
"being issued a renewal or extension".
46. Section 2 of the Act defines an SML as an SML granted under S33 of the Act, and defines a tenement to include an SML granted or deemed to be granted under the Act. The first Defendant has submitted that the SML was not an SML within the meaning of S36 of the Act, because this SML was granted under the repealed Act, not under the Act.
47. However, S 182 of the Act says that a reference in any Act, instrument or
document to the repealed Act shall be construed as a reference to the Act. The
SML and the Mining Development Contract are instruments and documents. The
SML refers to the SML being granted "by virtue of the powers conferred on me by
the Mining Act Chapter 195 .... " and" .... upon and subject to the provisions of the Act ... ". Pursuant to S 182, these references to the repealed Act shall be construed
as a reference to the Mining Act 1992, so that the SML has been granted "by virtue
of the powers conferred on me by the Mining Act 1992" and "upon and subject to
the provisions of the Mining Act 1992 .... ". The SML is therefore an SML granted
or deemed to be granted under the Act, and is an SML under S36 of the Act
48. The words "Notwithstanding anything in this Act" at the start of S173 (2) do
not add anything to the first Defendant's interpretation, because those words relate
only to the words which follow - namely, that an SML issued under the repealed
Act continues in full force and effect. The sole effect of the introductory words is
that if there is anything in the Act which might say that an SML issued under the
repealed Act does not remain in force, it is overruled by the words
"Notwithstanding anything ". Those introductory words do not preserve the
repealed Act, which has no operation or effect.
49. Section 173 (2) does not provide that the repealed Act remains in force, and
therefore does not mean that the repealed Act continues to apply to existing SMLs.
It simply preserves the existence of the SMLs.
50. The right to apply for an extension or renewal contained in the SML issued
under the repealed Act, continues in force, but the procedure or mechanism for
enforcing that right is governed by the Act. Rights under old statutes are presumed
to survive repeal, unless specified otherwise, but procedural aspects do not. The
" ... general rule that statutes are not to be given retrospective operation does not
apply to statutes that are concerned with matters of procedure (compared with
substantive rights)" - see Pearce and Geddes - Statutory Interpretation in Australia (1st ed, 2011).
51. The provisions of the Act do not change the Plaintiff s right to apply for an
extension (given in the SML and preserved by S173(2).) The Act changes the
procedures by which the Plaintiff can apply for an extension, and Parliament has
clearly intended the provisions of the Act to apply, by repealing all the provisions
of the old Act.
52. In relation to (c), the 1 st Defendant submits that the Plaintiff cannot obtain
"the comfort of an assurance from the court that it is acting lawfully" if it continues
mining, and objects that no consequential relief is sought.
53. As has been confirmed in cases such as Dent v Kavali (1981) PNGLR 48,
Pokia v Yallon (2015) SC 1662 and Dengnenga Resources Development Ltd v
Vanimo Jaya Ltd (2018) N 7108, it is settled that S155 (4) of the Constitution is
available for the enforcement of primary rights in the absence of legislation, and
the court has an inherent power to make such orders as are necessary including
declaratory orders to enforce and protect such rights. In the absence of any
statutory or other requirement to plead consequential relief, its' non-pleading is not
a bar to seeking declaratory orders. As the Australian High Court said in
Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 12 CLR 297, "The
jurisdiction to make declaratory orders without consequential relief, is a large and
most useful jurisdiction".
54. The Plaintiff is not seeking a mere advisory Opinion. "The difference
between an advisory opinion and a declaratory judgment is the fact that an
advisory opinion is not based on a concrete situation and does not amount to a
binding decision raising a res judicata between parties .... Where a dispute is
divorced from the facts, it is considered hypothetical .... " (see Bass v Permanent
Trustee Co. Ltd [1999] HCA 9; (1999) 198 CLR 334). This is in accordance with the English
common law position, settled in Russian Commercial and Industrial Bank v British
Bank for Foreign Trade Ltd (supra), the case relied on in PNG to set out the
principles on declaratory relief, where the court said:
" . . . .. it has been accepted practice in cases in the commercial list to, hear and determine claims for a declaration of right, when a real and not a fictitious or academic question is involved .... in order that (the parties) may know what business course to take without having to run the risk of acting and finding themselves liable for damages".
That is the same position here.
55. Declarations have been granted to establish the lawfulness of a proposed
termination of pregnancy in breach of the Abortion Act (Royal College of Nursing
(UK) v Department of Health and Social Security [1980] UKHL 10; (1981) AC 800), the lawfulness
of an election result (Ipatas v Enga Provincial Government (1997) PNGLR 101)
and the extent of rights granted by a mining exploration license (Matu Mining,
supra)
56. The case authorities are clear that declarations can be sought, particularly as
to the lawfulness of future conduct, as long as the issue is not merely academic.
The issue of the correctness of the Plaintiff s application for an extension and the
lawfulness of its future conduct in continuing mining, is not merely hypothetical or
academic. The dispute here is not divorced from the facts. On the contrary, it is
based on concrete facts which have already occurred, and which will result in the
parties knowing which course they should take without having to run the risk of
operating unlawfully.
57. In relation to (d), the first Defendant has stated by its counsel that it did not go
so far as to assert that a failure to go through the PJV Management Committee
would make the extension application in-valid. Any issue relating to an alleged
lack of authority to make the extension application is an internal matter for the
Joint Venture Partners, which may entitle the first Defendant to seek a remedy for
breach of contract or fiduciary duty, but which does not affect its relations with
third parties.
58. The Plaintiff has issued these proceedings in its own name, not in the name
of the Porgera Joint Venture, and does not need authority from the first Defendant to do that. There is no reason why the Plaintiff
cannot issue any proceedings it
considers necessary to protect its assets, which include an interest in the PJV.
59. In relation to C e), the first Defendant submits that not all affected parties have
been joined, because the Enga Provincial Government and some unnamed
landowners are not joined. However, the only parties to the SML are the Plaintiff
and the first Defendant. As the first Defendant is an incorporated company, it must be sued in its corporate name, not in the name
of its shareholders. Only the parties to the SML can have a dispute over its terms, and as landowners are not a party to the SML,
they are not party to the dispute, and have no basis on which they could be joined.
60. In relation to (f), the documents show that the Plaintiff has not delayed in
bringing or prosecuting these proceedings since the dispute arose. Contrary to its
submission, the first Defendant knew of the Plaintiff s application and six months
later was asking the second to fourth Defendant's opinion on the correct interpretation of the Act in relation to the application. The Plaintiff attempted to resolve this issue with them, and when unsuccessful, issued these proceedings.
61. As the court has already ruled in an earlier interlocutory application that the
Plaintiff had no obligation to provide the documents requested by the first
Defendant, there cannot be said to have been any failure to provide them.
Conclusion
62. I find that the evidence is sufficient to establish that:
(a) Barrick (Niugini) Limited and Mineral Resources Enga Limited,
collectively the Porgera Joint Venture, are the holders of a Special Mining Lease No. 1 (P) issued under the provisions of the 1977
Mining Act Chapter 195
(b) The 1977 Mining Act Chapter 195 ("the repealed Act") has been
wholly repealed and replaced by the Mining Act 1992 ("the Act")
(c) The said SML included a right to renewal or extension, which was preserved by S 173 (2) of the Act
(d) All matters relating to minerals and mining including applications for renewal or extension of SMLs issued under the repealed Act, are governed by the Act
(e) The Plaintiff s application for an extension of the SML registered on 29 June 2017, has been validly made under S36 of the Act
(f) The Plaintiffs application for an extension of the SML is governed by the provisions of the Act, and it therefore follows that pursuant to S112 of the Act, the SML will continue in force until its determination by the second to fourth Defendant
63. I am satisfied that the Plaintiff has established, and the first Defended has not
refuted, all the elements of the Plaintiff s claim for declaratory relief. I therefore
make the following orders:
(a) A Declaration is granted that Barrick (Niugini) Limited and Mineral Resources Enga Limited, (collectively the Porgera Joint Venture), are lawfully permitted to use the land the subject of the Porgera Special Mining Lease No. I(P), beyond the date of expiry on 16 August 2019, for the purpose of mining and ancillary purposes, until the determination of the SML extension application lodged on or about 29 June 2017 under the Mining Act 1992.
(b) A Declaration is granted that the Porgera Special Mining Lease No. 1 (P) shall continue in force after 16 August 2019 over that part of the land covered by the SML extension application lodged on or about 29 June 2017 under the Mining Act 1992, until the determination of the said application.
(c) The first Defendant is to pay the costs of the Plaintiff and the second to fourth Defendants
(d) The time for entry of the orders is abridged to the time of settlement by the registrar, which shall take place forthwith
___________________________________________________________________
Ashurst PNG: Lawyers for the Plaintiff
Geroro Lawyers: Lawyers for the First Defendant
Allens: Lawyers for Second to Fourth Defendants
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