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Barrick (Niugini) Ltd v Mt Bee Akom HTL Association Inc [2022] PGNC 515; N10055 (5 December 2022)

N10055

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 56 OF 2019 (COMM)

BETWEEN:

BARRICK (NIUGINI) LIMITED
Plaintiff

V

MT BEE AKOM HTL ASSOCIATION INCORPORATED
First Defendant

AND

HARI HARALU, PATRICK PAWA, TIMOTHY HEWE BALOBE, PASTOR GERSHON EKARI & their agents, supporters, relatives, and family members
Second Defendants

Waigani: Anis J
2022: 1^st & 5^th December

DECLARATORY RELIEF – declaratory relief – declaration premised on assertion of legal rights or interests in 2 mining leases – Special Mining Lease and Special Mining Easement issued under the Mining Act 1992 – preliminary consideration – whether asserted rights continue to exist under the leases as alleged – whether material facts have changed - whether there was fundamental flaw in the material facts - whether burden of proof should shift to the defendants – whether plaintiff has provided sufficient evidence to maintain its claim against the defendants to disprove – whether pleaded primary relief attainable – consideration - decision

Cases cited:
Barrick (Niugini) Ltd v Nekitel (2020) N8409
Barrick (Niugini) Ltd v Nekitel (2020) N8791
Brian Josiah v Stephen Raphael (2018) SC1665
Soa Gabi & The State v. Kusap Nate and Ors (2006) N4020

Counsel:

W Mininga, for the Plaintiff
A Token, for the Defendants

DECISION

5^th December, 2022

1. ANIS J: The trial for this matter proceeded without cross-examination of witnesses on 7 November 2022. All the evidence were tendered by consent of the parties. Presentation of closing arguments was adjourned to 1:30pm on 1 December 2022. I heard closing arguments from both counsel before I reserved my ruling to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The originating summons was filed on 5 February 2019 (OS). At that time, the plaintiff was the registered holder of 2 mining tenements or leases, namely, Special Mining Lease No. 1 (SML1) and Special Mining Easement No. 1 (SME1). SML1 and SME1 (the 2 tenements) were issued to the plaintiff on 12 May 1989 and 18 February 1991, respectively, under the Mining Act 1992 (Mining Act).

4. At the material time, the plaintiff was the Manager of the Porgera Joint Venture which operated the Porgera Gold Mine. I referred to the plaintiff’s role in past tense for the reasons as I will state herein.

COMMON GROUND

5. At the commencement of closing arguments, I referred counsel to the pleaded relief in the OS. For clarity, I set them out herein:

1. A declaration that as the holder of Porgera Special Mining Lease No.1 (SML) and Special Mining Easement No. 1 (SME), the Plaintiff is entitled under section 83(d) and 84 of the Mining Act 1992, to exclusive occupancy of the land subject of SME for construction and operation of Power Transmission Lines (PTL) and Power Transmission Towers (PTT) in respect of which the SME was granted.
   
2. A permanent injunction restraining the Defendants, their associates, agents, servants, supporters or relatives from trespassing onto the area subject of the SME upon which the PTT are located from Hides Gas Project, Hela Province to Porgera Mine Site, Enga Province or from damaging any of its facilities, equipment and properties.
   
3. A permanent injunction restraining the Defendants, their agents, servants, relatives, and family members from interfering with the Plaintiff’s operations of the PTL and PTT in the area, the subject of the SME.
   
4. A permanent injunction restraining the Defendants and their agents, supporters, and relatives from destroying or attempting to destroy the Plaintiff’s properties or interfering with its operations subject of the SME.
   
5. A permanent injunction restraining the Defendants and their agents, servants and relatives from intimidating or assaulting or otherwise interfering with servants, or agents of the Plaintiff carrying operations and undertaking works on land, the subject of the SME.

......

(Underlining mine)

6. I then raised a preliminary point with counsel for the plaintiff. I asked counsel whether the plaintiff was still the registered tenement holder of SML1. I also posed the same question to counsel for the defendant. I informed both counsel that I required assistance from them as officers of the Court, to assist me better understand the situation on the ground or in regard to the status quo of SML1 and of the plaintiff’s current interest in the Porgera Gold Mine. Both counsel made submissions in that regard.

7. In summary, the parties concede that the plaintiff’s SML1 expired on 15 August 2019. They also concede that the plaintiff had since applied for an extension of SML1 over the Porgera Gold Mine area. The parties say that this company Kumul Mineral Holdings Ltd (KMHL) also applied for a special mining lease over the same area. The parties submit that the State rejected the plaintiff’s application. The parties acknowledge that the plaintiff then commenced a judicial review proceeding (first JR) in the National Court to challenge the decision of the State in rejecting the plaintiff’s application for extension of its expired SML1. The parties concede that whilst the first JR was pending, the State issued a special mining lease (SML2) to KMHL on 25 August 2020. The parties further concede that the plaintiff has also filed another judicial review proceeding (second JR) against the State, that is, challenging its decision to issue SML2 to KMHL. At this juncture, the parties concede that the proceedings are pending. The parties also concede or understand that the plaintiff and the stake holders including the State are presently negotiating a possible settlement outcome.

8. The above are the material facts which give clarity to the status of the 2 tenements. And the plaintiff, by this proceeding, is asserting its rights or interest over the 2 tenements, to seek permanent injunctive orders against the defendants for their alleged actions.

STATUS QUO

9. The status quo of the plaintiff’s SML1 is that SML1 has expired. Based on Exhibit P1, SML1 was granted on 16 May 1989 for a period of 30 years, which means that it expired on or about 17 May 2019. The plaintiff presently does not have a registered tenement, like a special mining lease, over the Porgera Gold Mine land area. The defendants referred to cases that have been reported to confirm the status quo as described herein, namely, Barrick (Niugini) Ltd v Nekitel (2020) N8409 and Barrick (Niugini) Ltd v Nekitel (2020) N8791. It also adduced evidence under Exhibit D1, to support the undisputed claim that the plaintiff had applied for an extension of SML1 but that its application was refused and is now the subject of a judicial review proceeding.

10. The same would also be assumed or said regarding SME1. Section 81 of the Mining Act states, The term of a mining easement shall be identical to the term of the tenement in relation to which the mining easement was granted and the term of a mining easement may be extended under Section 88. That said, I note that it is possible for an easement to be issued over an existing tenement under the Mining Act (see s 90 of the Mining Act). However, the plaintiff has not assisted in that regard so I can only assume that it does not have a current mining easement over the areas of concern or over KMHL’s SML2.

11. The person who is now issued with a new tenement or SML2 over the Porgera Mine area is KMHL. But as it is, and as stated, there are ongoing legal proceedings and negotiations between the stake holders including the plaintiff.

CAUSE OF ACTION

12. When I turn my attention to the OS, and in particular, to relief one where it reads, A declaration that as the holder of Porgera Special Mining Lease No.1 (SML) and Special Mining Easement No. 1 (SME), I note that the said relief is factually incorrect and wrong. It may have been correctly pleaded at the time when the plaintiff commenced the proceeding. However, the status quo is that the plaintiff no longer holds the 2 tenements, in particular, SML1.

13. As such and in my view, relief 1, which is the primary relief, is unattainable. The plaintiff lost its legal interests or rights over SML1 when it expired in August of 2019. And based on submissions from both counsel, a new tenement or SML2 has been issued to another company which is KMHL. KMHL is not a party to this proceeding. So, when I consider the primary relief, the plaintiff is asserting its rights over the 2 tenements which have expired and no longer exist. I note that under Exhibit P1, the plaintiff attaches copies of its said expired tenements, namely, SML1 and SME1. I note that the evidence was filed whilst the 2 tenements existed.

14. Therefore, because the plaintiff is asking this Court to declare it as the current legitimate or legal proprietor of the 2 tenements when in fact the 2 tenements have expired or ceased to exist, I find the primary relief to be flawed, unattainable, and baseless, and therefore I must reject it. This then leaves me with little choice in regard to the entire proceeding. Consequently, I also find the cause of action to be without merit and baseless. This is not a case where the plaintiff’s application for an extension of its SML1 is pending approval. Rather, its application has been rejected and there is already a new tenement holder over the Porgera Gold Mine area. I also rule that I do not have sufficient information or prima facie evidence (disclosed by the plaintiff) of a valid cause of action that would warrant the burden of proof to shift to the defendants. In other words, the plaintiff has failed to establish its burden of proof, that is, of the purported legal rights that it claims to have (i.e., the 2 tenements) and where it seeks to declare which would have permitted this Court to, after determining these rights in its favour, consider and determine whether the rights have been infringed by the actions or inactions of the defendants, and whether the Court should grant the consequential relief that the plaintiff is seeking.

SUMMARY

15. In summary, this matter shall fail on the preliminary findings by the Court.

REMARKS

16. The plaintiff had attempted to apply to amend the primary relief and also to re-open the trial to adduce evidence, at or during closing submissions. I rejected these, and I would refer to my decision in the transcript of proceeding.

17. The plaintiff raised equity as its alternative argument. However, I note that it was belatedly raised, and as such, I am not minded to go down this path. But regardless, I wish to make 2 remarks. First, I note that the plaintiff filed this proceeding to assert legal rights, namely, its legal interests in the 2 tenements. Mining tenements are issued and are protected under law, namely, the Mining Act and the related legislations including regulations. That was the premise of the plaintiff’s cause of action; to seek orders to protect its legal interest in the 2 tenements. The plaintiff, however, and by this proceeding, did not intend seek to enforce or protect its equitable rights under equity.

18. My second remark is this. I refer to the maxim, equity follows the law. Cases: Sao Gabi & The State v. Kusap Nate and Ors (2006) N4020; Brian Josiah v Stephen Raphael (2018) SC1665. For this matter, there is no legal basis for the primary relief. Further, dismissal of this proceeding will not be a dead end for the plaintiff thus warranting it (i.e., the plaintiff) to turn to equity. As I have stated to counsel for the plaintiff at the hearing, there are other processes which the plaintiff or other interested parties may use to address grievances such as this.

COST

19. An award on cost is discretionary. I will order cost to follow the event. The defendants have asked the Court to award cost at a fixed sum of K4,000 as its costs in relation to the proceeding. I am minded to make an award for that amount. I note that the landowners may have traveled into Port Moresby for their case. Airfares in Papua New Guinea generally can be quite expensive. There had been various Court attendances in the matter by counsel. The taxation process itself may see parties incur additional costs, if I am minded to order taxation of cost. So, with these considerations in mind, the K4,000 estimate that is requested may be an undervalued estimate. However, that is what the defendants are requesting and as stated, I am minded to make an order for the said fixed sum.

ORDERS OF THE COURT:

20. I make the following orders:

1. The proceeding is dismissed.
   
2. The plaintiff to pay the defendants’ cost of the proceeding, which is fixed in sum of K4,000 inclusive of tax.
   
3. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly
________________________________________________________________
Bradshaw: Lawyer for the Plaintiff
Public Solicitor’s office: Lawyer for the Defendants