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Application by Simon Ekanda [2024] PGSC 133; SC2666 (4 December 2024)

SC2666


PAPUA NEW GUINEA
[IN THE SUPREME COURTOF JUSTICE]


SCCA 4 OF 2023 (IECMS)


APPLICATION PURSUANT TO CONSTITUTION
SECTION 18(1)


APPLICATION BY SIMON EKANDA
First Applicant


AND:
HELA TUGUBA LABANDA INCORPORATED
Second Applicant


AND
HON. PILA NININGI MP, ATTORNEY GENERAL OF PAPUA NEW GUINEA
Intervener


Waigani: Salika CJ, Gavara Nanu J, David J, Hartshorn J and Murray J.
2024: 29th August & 4th December


CONSTITUTIONAL LAW – Application – Constitution; ss.18 (1), 53, 212B (as amended)- Hydrocarbons and natural resources under customary land – Ownership - Customary landowners – Whether Constitution; s. 53 vests ownership of hydrocarbons and natural resources in customary landowners - Constitution; s.212B (as amended) and Oil & Gas Act, 1998; s.6 vest ownership of hydrocarbons and natural resources in the State – Whether Constitution; s.212B (as amended) and Oil and Gas Act, 1998; s.6 in breach of Constitution s. 53 - Standing of the Applicants.


Facts


The First Applicant is from the Hela Province. He says his tribe owns the customary land in which Hides, Angore, and Juha Gas Projects PDLS 1, 7, 8 and 9 are situated.


The Second Applicant is an Association incorporated under the Association Incorporation Act, 1966. The First Applicant and his fellow tribesmen and women are members of the Second Applicant. The Second Applicant represents its members in negotiations and formal agreements relating to benefit sharing and equity participation in natural resources including hydrocarbons and raw minerals on and in their customary land. Thus, the Second Applicant was formed to pursue ownership and equity rights of its members and participated in the PNG-LNG Agreement in 2008 and the Umbrella Benefit Sharing Agreement in 2009.


The Applicants say they are aggrieved by s. 212B of the Constitution (as amended) and s. 6 of the Oil and Gas Act, 1998, which vest ownership of hydrocarbons and other natural resources (mineral resources), in their natural state, such as the above-mentioned Gas Projects in the State.


The Applicants claim s. 212B of the Constitution (as amended) and s. 6 of Oil and Gas Act, 1998 which vest ownership of natural and mineral resources in the State, are in breach of s. 53 of the Constitution, which the Applicants claim protects their ownership right of the resources that are found on and in their customary land, such as the hydrocarbons and other the mineral resources.


Held


  1. Per Salika CJ: The First Applicant should have invoked the processes under the Land Dispute Settlement Act, 1966 and invoked the Local Land Court or the Provincial Land Court having jurisdiction over areas where the above gas projects are situated and have him declared an owner of the land where the above-mentioned gas projects are situated before filing this Application. His failure to prove that he is an owner of the land where the gas projects are situated before filing this Application is fatal to the Application. The First Applicant cannot have standing to make Application without first proving that he is an owner of the land where the abovementioned gas projects are situated.
  2. Per Gavara-Nanu J – Application is against the clear Constitutional and legislative declarations and intent that mineral resources, including hydrocarbons are owned by the State.
  3. Per Gavara-Nanu J – Section 53 of the Constitution cannot be invoked by the Applicants to seek relief which are contrary to the clear Constitutional declarations in the National Goals and Directive Principles.
  4. Per Gavara-Nanu J – Section 53 of the Constitution can only be invoked to protect the ownership rights over properties which are compulsorily acquired under the Lands Acquisition Act, 1974. Thus, the Applicants cannot rely upon s.53 of the Constitution as their jurisdictional basis for the relief they are seeking.
  5. Per Gavara-Nanu J – The issues raised in the Application have already been judicially determined by this Court in other cases between the same parties viz; landowners (privies) and The State. Thus, the issues are res judicata and issue estoppel lies against the Applicants from raising the same issue. Application in that regard is an abuse of process.
  6. Per David J and Murray J – Hydrocarbons are migratory by their scientific nature; thus they are national resources with value extending beyond individual areas of land and landownership. Thus, it is more appropriate that the State owns the resources and regulates the exploration and extraction of hydrocarbons to manage environmental impact and economic benefits.
  7. Per Gavara-Nanu J, David J and Murray J – If the Application was successful, there would be a lot of in-fighting between landowners and serious issues will arise regarding right of control over the natural and mineral resource. Under the current system, the landowners participate in benefit sharing and equity participation. The system works for the benefit of all, thus there is no need to change the status quo.
  8. Per Hartshorn J – The Applicants raise issues regarding ownership rights and or interests of traditional landowners over oil and gas resources situated in their customary land. The Applicants seek declaratory orders that they own hydrocarbons situated on, at or below customary land and the ownership thereof. Under ss. 3 (1) and 26 of the Land Disputes Settlement Act, 1975, the Local Land Court has jurisdiction over the areas where the gas projects are situated and has the jurisdiction over disputes over interests in land which the Applicants claim. The Supreme Court therefore lacks jurisdiction to hear and entertain this Application. The Application is therefore either hypothetical, frivolous or vexatious and this Application should be refused.
  9. By the Court: Application should be refused.

Cases Cited:


Papua New Guinean Cases
Application by Edward Mike Jondi in his capacity as General Secretary of PNG Party (2016) SC1561
Application by Hon. Douglas Tomuriesa (2024) SC2594
Application by Hon. Douglas Tomuriesa MP (2024) SC2610
Application of Justice Foundation for Porgera Limited (2002) SC2257
Avia Aihi v. The State [1981] PNGLR 81
Donigi v The State [1991] PNGLR 376
Justice Sir Bernard Sakora (2020) SC1980
Kuman v. Digicel (PNG) Ltd (2019) SC1851
Leo Maniwa v. Aron Malijiwi (2013) N5687
Louis Siu v. Wasima Land Group Incorporated (2011) SC1107
Minister for Lands v. Frame [1980] PNGLR 433
Namah v Kua [2014] PNGLR 422
Namah & Geno v O’Neil (2015) SC1617
Namah v Pato [2014] PNGLR 150
Peter Donigi v. Base Resources Ltd [1992] PNGLR 110
Philo Aufa v. Richard Pii (2018) N750
PNG Aviation Services Ltd v. Geobb Karri (2009) SC1002
Png Ready Mixed Concrete Pty Ltd v. The State [1981] PNGLR 396
Reference by Fly River Provincial Executive (2007) SC917
Reference No 2 of 2018 – Reference by The Ombudsman Commission pursuant to Constitution s. 19 (1) of the Constitution – Re: The Public Money Management Regulation Act, 2017 (2020) SC1944
Re: Petition of M T Somare [1981] PNGLR 265
Takori v. Yagari (2008) SC905
Talibe Hegele v. Tony Kila (2012) SC1180
Tzen Plantations Ltd v. Open Bay Timbers Ltd (2014) SC1380
Wilson v. Kuburam [2016] PGSC 7; SC1489


Overseas Cases
Carl-Zeiss Stiftung v. Rayner and Keeler Ltd and Others (1966) 2 All ER 536


Counsel:
J. Wohuinangu and K. Bun, for the Applicants
N. Pilamb, for the Intervener, the Attorney General


4th December 2024


  1. SALIKA CJ: The applicant seeks this Court’s interpretation and application of s. 53 and s. 212B (1) along with s. 6 of the Oil and Gas Act 1998. The applicants raise Constitutional issues over ownership rights and interests of traditional landowners over oil and gas resources situated on their traditional or customary land.
  2. The applicants contend the amendment in s. 212 B (1) of the Constitution and s. 6 of the Oil and Gas Act 1998, which vest exclusive ownership of all minerals and hydrocarbons in PNG on the State are in breach of the applicants right to ownership of property or interest in the Oil and Gas given them by s. 53 of the Constitution.
  3. They therefore seek a declaration that Section 221 (B) (1) of the Constitution and s. 6 (1) of the Oil and Gas Act 1998 are unconstitutional and invalid.
  4. This application was filed on 6 July 2023 and the only intervener in the application is the Hon. Pila Niningi, the Attorney-General of PNG.

DO THE APPLICANTS HAVE STANDING?


  1. Order 4 Rule 17 (b) of the Supreme Court (Miscellaneous Amendment) Rules 2022 provide that the Registrar shall set down an application under s. 18 (1) for substantive hearing only after the Court has declared that the applicant has standing to make the application. Thus, the application.
  2. There are two applicants in this application:
    1. Simon Ekanda claims he has standing in that:
      • He is a natural person;
      • He is a citizen of PNG;
      • He has a genuine interest in the subject matter in that the interpretation of the Constitution he is seeking would affect his proprietary rights and interests in the hydrocarbons situated on his traditional lands owned by him and the Tuguba Tribe.
      • He is from the Nokoli village situated at the foot of Mt Gigira where the oil well head of the gas is located.
      • He is the President of the Hela Tuguba Labanda Incorporated.
    2. Hela Tuguba Labanda Incorporated.

The Second Applicant:


  1. The applicants both argue they have standing while the Intervener argues both applicants have no standing.

APPLICANTS SUBMISSIONS


  1. The applicants rely on the following affidavits:
    1. The affidavit of Simon Ekanda sworn 21 June 2024, filed 6th July 2024 (Court doc # 2).
    2. The affidavit of Ngule Mina sworn 26 June 2024, filed 6th July 2024 (Court doc # 4).
    1. The affidavit of Marago Pate sworn 22 June 2024, filed 6th July 2024 (Court doc # 5).
    1. The affidavit of Simon Ekanda sworn 21 June 2024, filed 22nd June 2024 (Court doc # 21).
    2. Affidavit of Kepsy Pulye sworn 21 February 2024, filed 22 February 2024 (Court doc # 22).
    3. Affidavit of Marago Pate sworn 21st February 2024, filed 22nd February 2024 (Court doc # 23).

PRINCIPLES


  1. The First Applicant submits that case precedents by the Supreme Court Re: Petition of M T Somare (1981) PNGLR 265 and Others since that case such as Namah & Geno v O’Neil (2015) SC1617, Namah v Pato (2014) PNGLR 150, Namah v Kua (2014) PNGLR 422, Justice Sir Bernard Sakora (2020) SC1980 and Application by Hon. Douglas Tomuriesa (2024) SC 2594 all establish that the applicant must:
  2. Mr Ekanda submitted that the class of persons granted declarations on standing include political leaders and public officials in leadership positions in PNG such as politicians, constitutional office holders including a former Judicial officer.
  3. However, he submitted that a private citizen who holds no political or constitutional office past or present is yet to be granted a declaration on standing although attempts have been made in the past. He cited the cases of Application by Edward Mike Jondi in his capacity as General Secretary of PNG Party (2016) SC1561 and Application of Justice Foundation for Porgera Limited (2002) SC2257. In those two matters, the application for granting of standing were refused.
  4. Mr Ekanda relies on the affidavit evidence which has been referred to already and based on the evidence he argues the following:
    1. The first applicant says he is a natural person and a citizen of Papua New Guinea. He avails from the Yugu Clan of the Hela Tuguba Tribe which traditionally own and occupy all the land situated in the Koroba-Kopiago District. Tari-Pori District, and Komo-Hulia District of the Hela Province. He belongs to several villages from his father’s side, his paternal grandmother’s side and his mother’s side. The Hela Tuguba Tribe own and occupy the traditional lands that accommodate the Hides 1 Gas Project – PDL 1 situated in the Komo Hulia District. Hides Gas Project – PDL 7 situated in the Koroba-Kopiago District and the Angore Gas Project – PDL 8 and Juha Gas Project – PDL 9 both situated in the Tari-Pori District. He says is a traditional landowner of the lands on which these gas projects are situated and has genuine interest in preserving and protecting the traditional right of ownership of the oil and gas resources, their exploitation and derivation of benefits from the development of those resources.
    2. He says he has a genuine interest in the interpretation and application of the constitutional provisions referred to, as such interpretation and application affects his property, interest or right in the hydrocarbons situated on traditional lands owned by him and the Hela Tuguba tribe of which he is one of its leaders. The first applicant says he comes from Nokoli village situated at the foot of Mount Gigira on which the wellhead of the natural gas that supplies gas to the Hides Gas Projects for the PNG LNG Project is situated. He claims the well head is situated on land belonging to the Hela Tuguba tribe. He belongs to the Tuguba Yugu clan, one of thirty (30) clans of the Hela Tuguba tribe. He is an owner of the land and the natural gas that is situated on that land. As a leader of the Hela Tuguba tribe, he has and continues to represent the Tuguba Tribe in various platforms that address issues pertaining to traditional land and land-based resource ownership. He is the President of the Hela Tuguba Labanda Incorporated, the second applicant herein.
    1. The first applicant says he is aggrieved by decisions made by the Government (hereinafter referred to as “the State”) to enact two (2) laws, namely, s. 6 (1) of the Oil and Gas Act 1998 and s. 212B (1) of the Constitution, compulsorily and arbitrarily expropriated their ownership of hydrocarbons situated on their customary lands and vested exclusive ownership on the State, as it did all hydrocarbons situated all land throughout Papua New Guinea including customary land. Both laws were enacted without prior consultation with and the consent of the Simon Ekanda and members of the Hela Tuguba tribe that owned the land and the natural gas situated herein.
  5. The Second Applicant is a corporate citizen incorporated under the Association Incorporation Act 1966. Its membership comprises of Chiefs representing the various clans of the Hela Tuguba Tribe and people of the said tribe. The Association is said to be the mouthpiece to assert the peoples or members property rights including ownership rights over all the land including natural resources such as hydrocarbon and minerals found on their land. The Association was formed to pursue ownership and equity rights and participation in the PNG-LNG Agreement of 2008 and the Umbrella Benefit Sharing Agreement of 2009 and other benefit sharing agreement in relation to developments on their land. The Second Applicant holds the same grievances as the first applicant.
  6. The applicants’ claims are for breach of their traditional rights to exclusive ownership of all hydrocarbons on their traditional lands on which Hides 1 Gas Project (PDL 1) Hides 4 Gas Project (PDL 7, Angore Gas Project PDL 8) and Juha Gas Project (PDL 9) are all situated. They argue that their respective property rights are recognized and protected by s. 53 of the Constitution. The Second Applicant further argues that its rights as a corporate citizen is recognized by s. 34 (b) of the Constitution to own property or interests in the property over the oil and gas.
  7. The Intervener objects to the application. He submitted through his lawyer that the first applicant does not identify the subject property affected in that he does not:
    1. It does not apply to the property affected.
    2. It does not identify the type of hydrocarbon said to be on First Applicant’s purported land.
    1. It does not identify the “traditional lands” being affected.
    1. It does not identify how the First Applicant’s interest has been affected and or the various instance(s) which they have been affected.
  8. He further submitted that the first applicant does not identify the Incorporated Land Group under which the customary lands are owned.
  9. He went on to submit that the first applicant did not property demonstrate his authority to commence proceedings on behalf of the purported landowners.
  10. In relation to the Second Applicant, the Intervener submitted the same.

THE LAW


  1. The Supreme Court in the Application by Edward Mike Jondi as General Secretary of PNG Party (2016) SC1561 held among others that an official of a political party must show that he or she is acting with the approval or endorsement of the political party and that it is not an open license to any ordinary citizen.
  2. Mr Ekanda’s case is different. He is coming to Court in his own right as a landowner from whose land oil and gas are being extracted from. He needs no approval or endorsement from any one or body to come to Court.
  3. In relation to the standing of the Second Applicant, it is an Incorporated Association, registered under the Associations Incorporation Act 1966. The First Applicant not only signed as the First Applicant, he also signed the application as the public officer and has the common seal of the Association imprinted on the application.
  4. There however, is no resolution authorising Mr Simon Ekanda from the Board of the Association to institute the proceedings. In an application under s.19 of the Constitution, there is a requirement that references under s. 19 by provincial executives must be authorized by a provincial assembly resolution. See SC Ref. No. 3 of 2006: Reference by Fly River Provincial Executive (2007) SC917 and Application of Justice Foundation of Porgera Limited (2002) SC2257.
  5. It appears Mr Ekanda is not only taking out a Supreme Court Reference under his own name which must be viewed, in my view, separately from him coming to Court on behalf of the Association, but also on behalf of members of his tribe and association. I cannot see any signed authority from the others of such authority.
  6. I am of the opinion that Mr Ekanda has sufficiently established that:
  7. However, there is one element of his claim which he has not properly established and that is:

He has not established he is a landowner or the landowner of the subject land in these proceedings. The subject land referred to by the applicant in his application is customary land. The relevant statute that determines ownership of customary land is the Land Dispute Settlement Act (LDSA). There is a process under the LDSA to resolve disputes relating to ownership of traditional land in PNG. If Mr Simon Ekanda is claiming to be the owner of the subject traditional land, he needs to show this Court that he has been declared by the Local Land Court or a Provincial Land Court to be the owner of the subject land. With respect, he cannot just assert ownership of the subject land without the land being awarded to him by the Local Land Court or a Provincial Land Court in a proceeding commenced under the LDSA.


  1. In this instance, he has not shown with evidence that he is the owner of the subject traditional land. In the absence of such declarations by the relevant courts, he has failed to establish that fact.
  2. The end result is he has no standing on that basis.
  3. In relation to the Second Applicant, I will refuse standing firstly on the ground that there is no resolution of meeting for the Association giving him authority to take this matter to Court and, secondly, land ownership is through an incorporated land group which the second applicant is not an Incorporated Land Group.
  4. GAVARA-NANU J: I have read the draft judgments of the Chief Justice and other members of the Court and note that they have all concluded that the Application should be refused. Having considered the matter, I have also concluded that the Application should be refused. I would nonetheless like to add some observations of my own.
    1. Introduction.
  5. The background facts to this Application have been sufficiently summarized by the Chief Justice, and my other three colleagues, therefore there is no need for me to repeat them.
  6. My conclusion is primarily based on my view that it is against the clear Constitutional declarations that ownership of mineral resources, which is the subject of this Application, found under the customary land is vested in the State. Hence my view that the Application is frivolous and vexatious and an abuse of process. As it will be shown later in my judgment, this conclusion has also led me to conclude that s. 53 of the Constitution is not the appropriate and relevant jurisdictional basis for Applicants’ claims.

B. The Issues

  1. The issue immediately before the Court is whether the Applicants have standing to bring this Application; the Application itself is primarily based on s. 53 of the Constitution. The Applicants, who are customary landowners, argue that s.53 vests ownership of hydrocarbons and other mineral resources, such as gold, copper, nickel and so on (“the mineral resources” hereon) that are under their customary land in them. It is therefore proper that I consider the issue of Applicants’ standing to bring this Application together with the issue of whether s.53 vests ownership of the mineral resources found under their customary land in them.
  2. The issues relating to s.53 need to be considered together with ss. 54 of the Constitution since s. 53 is by its own terms subject to s. 54. The Court must also consider s. 212B of the Constitution and s. 6 of the Oil and Gas Act, 1998, which the Applicants also argue offend against s. 53. These provisions are reproduced below in full, for Court’s consideration. Section 53 provides as follows: -

53. Protection from unjust deprivation of property.

(1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—
(a) the property is required for—
(i) a public purpose; or
(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and
(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.
(2) Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected.
(3) For the purposes of Subsection (2), compensation shall not be deemed not to be just and on just terms solely by reason of a fair provision for deferred payment, payment by instalments or compensation otherwise than in cash.
(4) In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to—
(a) the forfeiture; or
(b) the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession),
of any right or interest in property.
(5) Nothing in the preceding provisions of this section prevents—
(a) the taking of possession of property, or the acquisition of an interest in or right over property, that is authorized by any other provision of this Constitution; or
(b) any taking of possession or acquisition—
(i) in consequence of an offence or attempted offence against, or a breach or attempted breach of, or other failure to comply with a law; or
(ii) in satisfaction of a debt or civil obligation; or
(iii) subject to Subsection (6), where the property is or may be required as evidence in proceedings or possible proceedings before a court or tribunal,
in accordance with a law that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind; or
(c) any taking of possession or acquisition that was an incident of the grant or acceptance of, or of any interest in or right over, that property or any other property by the holder or any of his predecessors in title; or
(d) any taking of possession or acquisition that is in accordance with custom; or
(e) any taking of possession or acquisition of ownerless or abandoned property (other than customary land); or
(f) any restriction on the use of or on dealing with property or any interest in or right over any property that is reasonably necessary for the preservation of the environment or of the national cultural inheritance.
(6) Subsection (5)(b)(iii) does not authorize the retention of any property after the end of the period for which its retention is reasonably required for the purpose referred to in that paragraph.
(7) Nothing in the preceding provisions of this section applies to or in relation to the property of any person who is not a citizen and the power to compulsorily take possession of, or to acquire an interest in, or right over, the property of any such person shall be as provided for by an Act of the Parliament. (My emphasis).

34. Section 54 provides as follows: -

54. Special provision in relation to certain lands.

Nothing in Section 37 (protection of the law) or 53 (protection from unjust deprivation of property) invalidates a law that is reasonably justifiable in a democratic society that has a proper regard for human rights and that provides—
(a) for the recognition of the claimed title of Papua New Guinea to land where—
(i) there is a genuine dispute as to whether the land was acquired validly or at all from the customary owners before Independence Day; and
(ii) if the land were acquired compulsorily the acquisition would comply with Section 53(1) (protection from unjust deprivation of property); or
(b) for the settlement by extra-judicial means of disputes as to the ownership of customary land that appear not to be capable of being reasonably settled in practice by judicial means; or
(c) for the prohibition or regulation of the holding of certain interests in, or in relation to, some or all land by non-citizens.(My emphasis).

  1. The Applicants claim they are aggrieved by s. 212B of the Constitution which provides that the ownership of “hydrocarbons and minerals” in their natural sate found under the (customary) land is vested in the State.
  2. Section 212B was enacted by Constitutional Amendment No. 44 -– Papua New Guinea’s Ownership of Hydrocarbons and Minerals and the Consolidation and Commercialisation of Papua New Guinea’s Business, Law 2016. The section provides as follows: -

(1) Hydrocarbons and minerals in their natural state are, and always have been, the property of Papua New Guinea.

(2) An Organic Law may make further provision in respect of Papua New Guinea’s interests in hydrocarbons and minerals, including the development of, disposal of, and dealing with the consolidation and commercialisation of those interests. (My emphasis).

37. The Applicants also challenge the Constitutional validity of s. 6 of Oil and Gas Act, 1998.

38. Section 6 of Oil and Gas Act provides as follows: -

  1. PETROLEUM THE PROPERTY OF THE STATE.

(1) Subject to this Act, but notwithstanding anything contained in any other law or in any grant, instrument of title or other document, all petroleum and helium at or below the surface of any land is and shall be deemed at all times to have been, the property of the State.

(2) Nothing in Subsection (1) shall be construed as an additional acquisition of property in relation to Section 53 of the Constitution beyond that which prevailed under the former Act and all previous Acts.

(3) Petroleum and helium shall not be removed from the land from which it has been obtained, or disposed of in any manner, except -

(a) subject to Subsection (4), by a tenement holder, for the purpose of sampling or analysis; or
(b) by a tenement holder in accordance with the terms of his tenement or a written agreement with the State; or
(c) as otherwise permitted by this Act.

(4) A licensee shall not take or send out of the country any samples of petroleum or helium without the written consent of the Director. (My emphasis).

39. The requirements of ss. 53 and 212B of the Constitution (as amended) and s. 6 of the Oil and Gas Act are pivotal, thus they require proper interpretation. To do this, it is proper to turn to the Constitutional Planning Committee Report (“the CPC Report” hereon) which pursuant to s. 24 of the Constitution is an aid to interpreting Constitutional provisions, especially in view of the types of relief sought by the Applicants.

C. The CPC Report

40. At page 2/1 of the CPC Report, the Constitutional Planning Committee (“the CPC” hereon) asked the question – What kind of society Papua New Guinea wanted, and in giving relevance to the “Eight Improvement Aims” formulated by the government, the CPC said the following: -

What kind of society do we want?

The relevance of the Eight Improvement Aims

Over the last two years, there has been much discussion about the kind of society that our people want. There was a wide-ranging debate on the socio-economic aspects of this topic in the House of Assembly last year resulting in the adoption by unanimous decision of certain fundamental guidelines for national improvement known as the "Eight Aims". These are:

(i) a rapid increase in the proportion of the economy under the control of Papua New Guinean individuals and groups, and in the proportion of personal and property income that goes to Papua New Guinea;

(ii) more equal distribution of economic benefits, including movement toward equalisation of incomes among people and toward equalisation of services among different areas of the country;

(iii) decentralisation of economic activity, planning and government spending, with emphasis on agricultural development, village industry, better internal trade and more spending channelled to local and area bodies;

(iv) an emphasis on small-scale artisan, service and business activity, relying where possible on typically Papua New Guinean forms of economic activity;


(v) a more self-reliant economy, less dependent for its needs on imported goods and services and better able to meet the needs of its people through local production;

(vi) an increasing capacity for meeting government spending needs from locally raised revenue;

(vii) a rapid increase in the active and equal participation of women in all forms of economic and social activity;

(viii) government control and involvement in those sectors of the economy where control is necessary to achieve the desired kind of development.

There are several basic principles which lie behind these aims. These have been summed up in the ideas of Equality, Self-Reliance and Rural Development. The Government has clearly stated its commitment to these aims in developing the country's human and natural resources to bring about improvement in the lives of our people, and there is general consensus on these principles all over the country.

In evolving the National Goals and Directive Principles of Policy which we propose should be incorporated in the Constitution, we have taken full account of the Eight Aims. The Goals and Directive Principles we recommend are broader and more comprehensive than the Aims in that they provide for the full development of our people, whereas the Aims emphasize the economic aspects of our society. The Goals and Principles are generally consistent with the Aims but are more specifically aimed at achieving a free and just society in Papua New Guinea.

We did not determine these national goals in a matter of days or weeks. We have distilled them after a great deal of thought and discussion over the twenty-two months during which our Committee has been at work. During that time, as we have mentioned in our Introduction, we held well over one hundred public meetings in all parts of the country, and we received thousands of submissions, verbally and in writing, many of which were concerned either directly or indirectly, with the type of society we should seek to build for ourselves.

We believe that these goals, and the principles which should guide the government and our people in order to achieve them, express the needs and aspirations of our people in meaningful terms, and that they are stated in such a manner that people will readily understand and remember them. The particular form in which they have been cast - spelling out the goals first, and then stating the goals and the principles - is intended to assist our people to fully understand and appreciate them.

We consider that they should be given the widest possible publicity at all levels of government; in towns and villages; in schools and tertiary institutions; in churches and other organizations so that our people will become fully aware of them, discuss them and obtain a clear sense of the direction in which our country is heading. It should give each man and woman a clear appreciation of the need for him or her to participate fully in the building of our new nation - a nation which is firmly based on equality and social justice. (My emphasis).

41. At page 2/18 of the CPC Report, the CPC among others, said this in respect of “Papua New Guinea Equity”: -

Papua New Guinean Equity

We recommend that the equity of the Government and of citizens should be maximized in the case of all large-scale enterprises for the exploitation of natural resources; that this equity should normally be as great as possible and should constitute at least a majority shareholding. This proposed provision is in line with the resolution passed by the House of Assembly in November, 1972 in relation to mining enterprises. We believe it should be extended to all enterprises for the exploitation of natural resources, as similar considerations apply to these other industries. (My emphasis).

42. In commenting on “Protection from Deprivation of Property”, which is relevant to s. 53 of the Constitution, the CPC in referring to some developing countries which had problems with the development of their mineral resources, the CPC Report at pp 5/1/14 and 5/1/15, recommended among others, the following: -


...Apart from the limitation of its scope to Papua New Guinean citizens, the provision we recommended is somewhat similar to the equivalent section of the Ordinance. However, there are two other significant differences between the respective provisions. The first is that instead of using the phrase “on just terms” in respect of the power to deprive a person of his property (which is identical to that used in section 51 (xxxxi) of the Australian Constitution) we have preferred to use the phrase “in accordance with principles of justice”. This latter phrase we propose should be interpreted so as to give full weight to the National Goals and Directive Principles in the Constitution, to the national interest (and in particular to that expression of that interest by Parliament) as well as to the interests of the person deprived of his property. The effect of this recommendation should be that the courts will not simply follow the precedents from Australia in assessing whether or not laws providing for the payment of compensation for the acquired property are valid, but will give weight to the interests of the people of the country as a whole, and in particular, to parliament’s interpretation of those interests, as well as to the interests of the individuals concerned. (My emphasis).


43. The CPC Report in recommending the implementation of Goals and Principles at p.2/15 said among others, this: -


IMPLEMENTATION OF THE GOALS AND PRINCIPLES


1. All activities of the State and its institutions should be based on the directive principles and directed towards achieving the National Goals set out in this chapter.


2. The goals and principles as a guide in judicial interpretation


(1) All courts and other adjudicatory tribunals shall be guided in the exercise of their functions by the National Goals and Directive Principles.


(2) Except to the extent provided for in this recommendation, the National Goals and Directive Principles shall not be directly justiciable. However, these goals and principles should not be regarded by any court, other adjudicatory tribunal or institution of government as being of less weight than other directly justiciable provisions. (My emphasis).

D. The Constitutional framework

44. The Preamble of the Constitution is in my view the relevant starting point and it is determinative; it states and declares among others, the following: -

By authority of our inherent right as ancient, free and independent peoples.


WE, THE PEOPLE, do now establish this sovereign nation and declare ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea.

AND WE ASSERT, by virtue of that authority

· that all power belongs to the people—acting through their duly elected representatives;
· that respect for the dignity of the individual and community interdependence are basic principles of our society;
· that we guard with our lives our national identity, integrity and self-respect;
· that we reject violence and seek consensus as a means of solving our common problems;
· that our national wealth, won by honest, hard work be equitably shared by all

WE DO NOW THEREFORE DECLARE
that we, having resolved to enact a Constitution for the Independent State of Papua New Guinea
AND ACTING through our Constituent Assembly on 15 August 1975

HEREBY ESTABLISH, ADOPT and GIVE TO OURSELVES this Constitution to come into effect on Independence Day, that is 16 September 1975.

IN SO DOING WE, THE PEOPLE OF PAPUA NEW GUINEA, SET BEFORE OURSELVES THESE NATIONAL GOALS AND DIRECTIVE PRINCIPLES THAT UNDERLIE OUR CONSTITUTION: —

National Goals and Directive Principles

WE HEREBY PROCLAIM the following aims as our National Goals, and direct all persons and bodies, corporate and unincorporate, to be guided by these our declared Directives in pursuing and achieving our aims: -


2. Equality and Participation.

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR—

(1) an equal opportunity for every citizen to take part in the political, economic, social, religious and cultural life of the country; and
(2) the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity; and
(3) every effort to be made to achieve an equitable distribution of incomes and other benefits of development among individuals and throughout the various parts of the country; and
(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfilment of his or her real needs and aspirations; and
(5) equal participation by women citizens in all political, economic, social and religious activities; and
(6) the maximization of the number of citizens participating in every aspect of development; and
(7) active steps to be taken to facilitate the organization and legal recognition of all groups engaging in development activities; and
(8) means to be provided to ensure that any citizen can exercise his personal creativity and enterprise in pursuit of fulfilment that is consistent with the common good, and for no citizen to be deprived of this opportunity because of the predominant position of another; and
(9) every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community; and
(10) all persons and governmental bodies of Papua New Guinea to ensure that, as far as possible, political and official bodies are so composed as to be broadly representative of citizens from the various areas of the country; and
(11) all persons and governmental bodies to endeavour to achieve universal literacy in Pisin, Hiri Motu or English, and in "tok ples" or "ita eda tano gado"; and
(12) recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality. (My emphasis).

45. Section 4 provides as follows: -

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 and on the land or seabed, in the sea, under the land, and in the air, 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. (My emphasis).

  1. Section 22 is relevant; it provides as follows:

22. Enforcement of the Constitution.

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine. (My emphasis).

47. Section 25 is under PART III – BASIC PRINCIPLES OF GOVERNMENT, it relevantly provides as follows: -

PART III — BASIC PRINCIPLES OF GOVERNMENT.
Division 1— National Goals and Directive Principles.

25. Implementation of the National Goals and Directive Principles.

(1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.
(2) Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.
(3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.
(4) Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate. (My emphasis).

E. Reasons for decision

48. The recommendation by the CPC in its Report that the National Goals and Directive Principles should not be directly justiciable was incorporated in s. 25 (1) of the Constitution. Notably, Sub-section (2), permits the governmental bodies to apply and give effect to the National Goals and Directive Principles in exercising their respective powers. Under Sub-section (3) there is in my view a duty placed on a body or bodies exercising power, be it legislative, judicial, executive, administrative or other kind; to enforce and give effect to the intention of the Parliament or the Constitution in ways that will give effect to the National Goals and Directive Principles, ant not to derogate them. Thus, there is a mandatory requirement on such bodies, including the Courts to understand, apply and or exercise their powers in such ways to enforce the National Goals and Directive Principles. For myself, that requirement is plenary and determinative, and it puts an end to the matter. Thus, in the case of the Court, when exercising its judicial power, it is prohibited by the Constitution under s. 25 (1) from interpreting s. 53 in a way that will result in the derogation of the National Goals and Directive Principles. To me, that is what the Applicants are attempting to do in this Application, viz; invoke s. 53 to ask the Court to declare that mineral resources under their customary land are owned by them. The Court’s exercise of its power in that way will inevitably result in the derogation of the National Goals and Directive Principles this is evident from the terms of the Application, which in essence challenge the validity of the National Goals and Directive Principles. That is why s. 25 (1) declares the National Goals and Directive Principles to be non-justiciable from such challenges, unless the purpose for asking the Court to exercise its power in such a challenge fall within the exceptions under Sub-section (3), which is to enforce the National Goals and Directive Principles. The Court is therefore prohibited in this case by s. 25 (1) from making determinations on the validity of National Goals and Directive Principles, as they are rendered non-justiciable by the types of relief the Applicants are seeking. See, Application by Hon. Douglas Tomuriesa MP (2024) SC2610. It can also be deduced from this that the intention of the Constitution is that s. 53 should be read and applied subject to the National Goals and Directive Principles. It is the duty of the Court to apply and enforce the intentions of the Constitution and protect the Constitution and its processes from being abused.

49. Section 212B of the Constitution (as amended) and s. 6 of the Oil and Gas Act, in my view simply resonate and enforce the requirements of the National Goals and Directive Principles. It is axiomatic that these laws simply reflect the wishes and aspirations of the people of Papua New Guinea, including the landowners as expressed in the CPC Report, and embodied in the Constitution.

50. Having regard to the CPC Report, the wish and the desire of the people of Papua New Guinea is that the mineral resources found under the customary land should be collectively owned by the people through the government, viz; the State so that the government could have control over those resources to ensure that every Papua New Guinean benefited fairly and equally from them. In this regard, the resource owners are not left without fair compensation and adequate benefits, they are given the opportunity to be compensated through equity participation as stated clearly in the National Goals and Directive Principles.

51. It is impossible for Papua New Guineans, including landowners to benefit from the mineral resources under their customary land if they had control over them, because in the first place they would not know their existence and second, even if they knew their existence they would not have the capacity to extract them. It will also be very difficult for exploration experts such as geologists and international corporations to carry out tests and conduct surveys where minerals are deposited and for the extractive industries such as mining companies to mine and develop the resources. Even if mining and exploration tenements and licenses were controlled, managed and administered by the government, one can imagine problems arising with constant landowner demands, if landowners were in control. Developers will be discouraged from participating in any form of resource development activities such as mining and other forms of extractive enterprises and large-scale commercial ventures in the country.

52. The Application will obviously have far-reaching consequences and effects if the Applicants are successful in this Application, as it would mean all the customary landowners throughout the country will have control over the mineral resources found under their customary land. In my view that will have catastrophic consequences for Papua New Guinea’s economy and the people. That said, any grant of such rights to the landowners would be against the clear Constitutional declarations that raw minerals in their natural state found under the customary land are owned by the State. For that reason, I also do not believe s. 53 grants ownership rights over mineral resources found under customary land to the customary landowners, including the Applicants.

53. I have no doubt that these issues were first and foremost in the minds of the framers of the Constitution, when they suggested in the CPC Report after having wide consultation with the people of Papua New Guinea that the people through their government viz; the State should collectively own the mineral resources found under their customary land.

54. In my view, what is required is for the government of the day to fairly compensate the landowners by giving them fair and equitable benefits which are commensurate to the value of resources extracted from their customary land. This was indeed recommended by the CPC in its Report (p.2/18), which had been embodied in the Constitution under the National Goals and Directive Principles. The system under the existing constitutional and legislative framework in my view already ensures and provides for sufficient and equitable distribution of the benefits from the mineral resources extracted from customary land to all Papua New Guineans, thus it is in my view in the interest of the public that the status quo remains.

55. In my opinion, the constitutional and legislative framework discussed above renders this Application frivolous and vexatious and an abuse of process. Thus, even if the Applicants satisfied the criteria for standing as stated by this Court in Re Petition of MT Somare [1981] PNGLR 265, to bring this Application, regard must also be had to the principles this Court adopted in Takori v. Yagari [2008] SC905, when considering ‘frivolous and vexatious’ and ‘abuse of process’. The principles are cited below. Thus, having regard to these principles. I am of the firm view that it would be untenable for this Application to succeed, even if it was allowed to proceed to substantive hearing, simply on the basis that the Applicants have standing. If it is very clear at this stage that the Applicants cannot succeed in their substantive Application, then there is no reason or purpose in allowing the Application to proceed to substantive hearing. In Takori v. Yagari, this Court in stressing these principles said: -

“Our judicial system should never permit a plaintiff or a defendant to be ''driven from the judgment seat'' in a summary way, ''without a Court having considered his right to be heard.'' A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside.

At the same time however, the law, such as the Rules under consideration, provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.


The object of these rules are (sic.) therefore ''to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable.'' In other words ''the object of the rule was to get rid of frivolous actions.''


A claim may be frivolous if it can be characterized as so obviously untenable that, it cannot possibly succeed or that, the claim or defence is bound to fail, if it proceeds to trial.


A claim or defence may be vexatious, if the case amounts to a sham or one which, cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim”. (My underlining).


56. The Court made these observations in Takori, when considering Order 12 Rule 40 (1) of the National Court Rules. In this case, the power of the Court to decide whether the Application itself is frivolous and vexatious and an abuse of process at this early stage of the proceeding derives from the unlimited well of its inherent power, exercised under s. 18 (1) of the Constitution with its supervisory and original jurisdiction to interpret, apply and enforce the relevant Constitutional provisions. See, Avia Aihi v. The State [1981] PNGLR 81, per Kearny DCJ.


57. The exercise of Court’s power to declare the Application frivolous and vexatious and abuse of process at this stage derives from its duty to protect its processes from being abused, which includes using processes of the Court in an improper and or incorrect ways, resulting in the opposing parties being forced to defend the actions. See, Takori v. Yugari (supra) and Wilson v. Kuburam [2016] PGSC 7; SC1489. In the latter case, the Court when discussing abuse of process held that although the issue was not relied on by the respondent in seeking dismissal of the applicant’s application for leave to review, the issue was raised in court and argued fully by the parties, thus the Court in the exercise of its inherent power held that it could decide the issue to protect its processes from being abused. Similarly, in this case, the Court has the inherent power to decide on its own initiative whether the Application is frivolous and vexatious and an abuse of process, and after thorough consideration of the issues raised, I have for the reasons already given concluded that the Application is frivolous and vexatious and an abuse of process.


58. The conclusion I have reached leads me to raise one other issue which is relevant to the issues before the Court which I have also discussed in my judgment. It appears to me that the Applicants are essentially challenging the validity of s. 212B of the Constitution (as amended) and s. 6 of the Oil and Gas Act, which vest the ownership of mineral resources in the State. However, as I alluded to earlier in my judgment, these two laws simply resonate and give effect to the National Goals and Directive Principles, as such, they cannot be challenged in any way, for to do so would result in the derogation of the National Goals and Directive Principles. Section 53 is in my view intended to protect the rights and interests of property owners whose properties, including land, are compulsorily acquired under the Lands and Acquisition Act, 1974 (as amended). In my view, the properties in this regard are unlike the mineral resources, those which are on the land and visible, which can be taken away or “stripped” from the owner through compulsory acquisition viz; land, rivers, traditional hunting grounds, customary landmarks, forests, etc. See, Leo Maniwa v. Aron Malijiwi (2013) N5687 and Minister for Lands v. Frame [1980] PNGLR 433, in the latter case, this Court held that s. 53 of the Constitution applied to protect rights and interests of the property owner whose property was compulsorily acquired under the Lands Acquisition Act, 1974 (as amended). The case arose out of the compulsory acquisition of the property, viz; a coffee plantation owned by Frame. The issues before the court were whether Frame was entitled to “just compensation” under s. 53 (2) of the Constitution and if so, what was “just compensation” for him. Section 53 was considered and applied to give effect to the National Goals and Directive Principles. In his decision, Kapi J (as he then was) who was a member of the bench said: -


“Section 53 of the Constitution deals with compulsory acquisition and compensation. On compensation, s. 53 (2) provides that:

...just compensation must be made on just terms...giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of the interest by Parliament, as well as to the person affected”.

...The Constitution adopted two pre-independent laws, which also apply to noncitizen’s, being the Land Act, 1962 and Lnds Acquisition Act, 1974. In this case, we are concerned with the Lands Acquisition Act.

...Section 53 of the Constitution was clearly made discriminatory. The Constitutional framers gave consideration to the Lands Acquisition Bill. Their understanding of it was that it did not provide for “just terms”. Section 53 was put in to protect citizens. This is independent protection; it in no way changed the meaning of the Act as far as measure of compensation is concerned”. (My underlining).


59. Although Kapi J gave a dissenting judgment, the other two members of the bench agreed with him that the National Goals and Directive Principles had to be given full weight when considering whether Frame was entitled to claim compensation for his property, and if so, what was the “just compensation” for him under s. 53 (2) of the Constitution. All three members of the bench agreed on the relevance of s. 53 of the Constitution and its application to the Lands Acquisition Act. As it can be noted from the excerpts of his judgment, the point Kapi J differed from the other two members of the bench was Frame being a non-citizen could not claim certain form of compensation for his property which only the citizens could, under the Lands Acquisition Act. The other two members of the bench disagreed with Kapi J and held that Frame was entitled to be compensated in the same way as the citizens. See also, png Ready Mixed Concrete Pty Ltd v. PNG [1981] PNGLR 396.


60. The other case in point is Peter Donigi v. Base Resources Ltd [1992] PNGLR 110. In that case, this Court referred to and cited the observations made by Miles J in png Ready Mixed Concrete Pty Ltd v. The State (supra), where Miles J said among others, the following: -


“...On the other hand the powers exercisable under legislation such as the Land Acquisition Act, 1974 (to which the Constitutional Committee referred) do have the effect of stripping the landowner of the land to which he is entitled, and of substituting that right to land with a right to compensation. Thus it is that s. 53 (2) provides for just compensation to be made by the appropriating authority. It is quite inappropriate to consider the applicant company as being in any way an ‘authority’ (My underlining)..


61. The Court in Peter Donigi v. Base Resources Ltd (supra) went on to say among others, the following: -


“...There are three main components to s. 53.


(1) It deals with compulsory acquisition of property in accordance with an Organic Law or an Act of Parliament.
(2) Such acquisition must comply with s. 53 (a) and (b).
(3) Just compensation must be made on just terms by the expropriating authority.

As to the first matter, Mr Justice Miles in png Ready Mixed Concrete Pty Ltd v. The State [1981] PNGLR 396 at 409 said:


“The key word is ‘compulsorily’ which I think implies the exercise of some power conferred by statute on the State or instrumentality of the State”. (My underlining).


62. Section 53 of the Constitution was also considered by a 5-member bench of this Court in Ref No.2 of 2018 - Reference by The Ombudsman Commission pursuant to Constitution 19 (1) of the Constitution – Re The Public Money Management Regulation Act, 2017 (2020) SC1944. The Ombudsman Commission in that Reference challenged the constitutional validity of Public Money Management Regulation Act, 2017, which was to regulate handling and management of public funds received by public or statutory bodies. A question posed in the Reference for the Court’s opinion was whether public bodies which were authorized by law to own, manage and dispose of properties and maintain accounts for public funds received, had interests in the funds and whether the interests in such public funds and properties were protected by s. 53 of the Constitution. The Court in finding the Public Money Management Regulation Act, 2017 unconstitutional said among others, that because the Act provided for compulsory acquisition of property other than on just terms, the Act was contrary to s. 53 of the Constitution, and for that reason alone, the Act was inconsistent with the Constitution and was invalid and ineffective in its entirety.


63. In that Reference, I was a member of the bench and in my decision, I referred to Leo Maniwa v. Aron Malijiwi (supra), which was my own decision. The case was brought on by landowners in the East Sepik Province whose customary land was compulsorily acquired by the government for Special Agricultural and Business Leases (SABL) purposes. The lease was for 99 years which was granted to a foreign owned logging company. The lease holder, while purportedly executing the lease caused extensive damage to the environment and customary land owned by the plaintiffs which included rivers, forests, customary landmarks and so on. In my decision in the above Reference, I said among others, the following: -


“In Leo Maniwa v. Aron Malijiwi (2013) N5687 the Court, after discussing the National Goals and Directive Principles held that a Special Agricultural and Business Lease (SABL) issued by the State to a logging company for 99 years over a customary land breaches s. 53 of the Constitution because the SABL not only deprived the customary landowners of their ownership of the land but it also deprived them of their other rights and interests in the land that went with their ownership rights. For example, right to fish, hunt and other traditional rights relating to the usage of their land”.


64. Notably, a quick survey of all the cases in which s. 53 was applied and enforced had one common denominator, viz; they all concerned compulsory acquisition of property rights and interests in properties that were on the ground, tangibly visible which could be compulsorily acquired. In those cases, it was proper to declare the acquisition unlawful under s. 53 of the Constitution. See also, Tzen Plantations Ltd v. Open Bay Timbers Ltd (2014) SC1380; PNG Aviation Services Ltd v. Geob Karri (2009) SC 1002 and Philo Aufa v. Richard Pii (2018) N750.

65. Thus, it is crystal clear that issues relating to the application of s. 53 of the Constitution regarding ownership of mineral resources under the customarily owned land have already been exhaustively considered and determined by the courts. Therefore, the Applicants are in essence re-agitate the same issues, which the courts have already considered and dealt with. The parties in this case are same, viz; customary landowners who are privies to the landowners who raised the same issue in the previous cases referred to above and the State. The result is the issues are res judicata for which issue estoppel must lie against the Applicants from raising the same issues. The Application in this regard is also a clear abuse of process. See, Wilson v. Kubaram (supra).

66. In Carl-Zeiss Shtiftung v. Rayner and Keeler Ltd and Others (1966) 2 All ER 536 at 656, Lord Guest in commenting on the doctrine of res judicata and issue estoppel relevantly said: -

“The requirements of issue estoppel still remain (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final, and (iii) that the parties to the judicial decision were the same persons as the parties to the proceedings in which the estoppel is raised or their privies”.

...doctrine is still referred to as “res judicata” it is perhaps more accurately described as “issue estoppel” to take into account the widening of the doctrine in recent years to include decisions other than those of courts of record”. (My underlining).

67. These are added reasons I find that s.53 of the Constitution is irrelevant for the Applicants to rely on for the relief they are seeking.


F. Conclusion


68. For these reasons, it is my duty to refuse the Application, which I now do.

69. The Applicants will pay the Intervener’s costs of and incidental to this Application, which are to be taxed, if not otherwise agreed

70. Orders accordingly.

71. DAVID J & MURRAY J: Their Honours, Chief Justice Salika, Justice Gavara-Nanu and Justice Hartshorn have produced separate drafts of their respective decisions which we have had the benefit of perusing. With respect, we concur with the opinions expressed by their Honours and accordingly, would also deny the Applicants’ request for a declaration of standing, for the reasons outlined in their Honours’ judgments, as well as the additional reasons detailed in our judgment.


  1. We adopt the background and applicable law as outlined and adequately covered in the Chief Justice’s judgment to which we add only a few additional comments.
  2. The primary issue before the Court is whether the Applicants have standing.
  3. In this jurisdiction, it is settled law that the question of an applicant's standing under s 18(1) of the Constitution is within the Supreme Court's discretion, guided by the “Somare Rules” established in Re Petition of MT Somare [1981] PNGLR 265.
  4. In summary, the Somare Rules stipulate that, an applicant will have standing if he or she satisfies all four tests or requirements. Those tests or requirements are:
(a) the applicant must have a sufficient interest in the matter;

(b) the application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues;

(c) the applicant must not be a mere busybody meddling in other people’s affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay;

(d) the fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing.
  1. The applicants have submitted that they have satisfied all four tests and accordingly, this Court must declare that they have standing so they can proceed to seek the declarations contained in their application.
  2. The Attorney-General, as the sole intervener, opposed the request, arguing that the applicant lacks sufficient interest in the matter, raises no significant constitutional issues, and is merely a busybody bringing trivial, vexatious, and irrelevant concerns before the Court.
  3. We will first assess whether the applicants meet the test of sufficient interest. If they do, we will proceed to consider the remaining three (3) tests. However, if they lack sufficient interest, we will conclude that the applicants do not have standing, and that will be the end of the matter.

Do the applicants have sufficient interest?


  1. The applicants will have sufficient interest, if they are able to demonstrate at least one of the following:

(a). That they have interests or rights that are directly affected by the subject
matter of the application or
(b). That they are citizens who have a genuine concern for the subject matter or
(c). That they are holders of a public office, the functions of which relate to the
subject matter.


  1. The applicants, represented by Mr. Wohuinangu, argue they have sufficient interest in the matter despite holding no political or public leadership roles. They claim direct rights and interests as citizens concerned with the State’s exclusive ownership of hydrocarbons located on their land in Hela Province. The first applicant, a PNG citizen from the Yugu clan of the Hela Tuguba tribe, has ties to the customary land where the PNG LNG Gas Project operates across four licensed areas – namely: Hides 1, (PDL 1 in Komo-Hulia District); Hides 4 (PDL 7 in Koroba-Kopiago District); Angore (PDL 8 in Tari-Pori District) and Juha, (PDL 9 also in Tari-Pori District). The second applicant, a corporate entity comprised of traditional chiefs from the Tuguba tribe, claims to represent landowners and aims to pursue ownership of the hydrocarbons in their land which extends along the PNG LNG Gas Project footprint area.
  2. It is Mr. Wohuinangu’s further submission that, the applicants’ interests, the subject of the application lie in the natural, unextracted, untouched hydrocarbons, that is in their land. That is to say, all the hydrocarbons that remains in situ in their traditional land. It is argued that, as landowners of the land that has hydrocarbons in its natural or untouched or unextracted state, they have traditional rights to own that and also rights to direct equity participation but those rights are affected by the application of Section 6 (Petroleum the Property of the State) of the Oil & Gas Act 1998 (the Act) and Section 212 B (1) (Papua New Guinea’s Ownership of Hydrocarbons and Minerals) of the Constitution, in that, the said provisions of the Act and the Constitution vests exclusive ownership of the hydrocarbons that is still in its natural, untouched, unextracted state on their customary land to the State. They are aggrieved that they were not consulted nor were their consent obtained for the enactment of Section 6 of the Act and Section 212 B (1) of the Constitution which took their right of ownership over hydrocarbons in their land and gave it to the State. They are also aggrieved that their demands for their direct equity participation were denied, hence the need for their request for standing to be granted so they can bring their grievances through the application.
  3. In opposing the request, the intervener submits the applicants have not demonstrated that they have sufficient interest. In support of this submission, counsel for the intervener, Mr. Pilamb, raised the following arguments:

With respect to the first applicant, he argued that:


(1) they have not identified his direct interest that is said to be affected. In other words, he argued that:
(2) They have not identified the Incorporated Land Group (ILG) under which the said customary lands are owned as it is settled law that customary ownership is only evidenced through a registered ILG and

(3) They have not properly demonstrated the first applicant’s authority to commence proceedings on behalf of the purported landowners.
  1. As for the second applicant, Mr. Pilamb argued that they have failed to demonstrate at all its direct interest in the matter and how those interests are directly affected.

Consideration


  1. The applicants’ interest is in the hydrocarbons, more specifically, the untouched, unextracted, unprocessed hydrocarbons, that they claim they own as it is in the land they own. As hydrocarbon is a technical matter, it is necessary in our view to appreciate what it is, its nature and more importantly, whether it is capable of being owned by a person or group, something, we expected lawyers to address the court on these aspects as well but that was not the case. So, the immediate question is, what is hydrocarbons?
  2. Under the Oil and Gas Act 1998 and the Oil and Gas Regulations 1999, there is no definition of hydrocarbon. The closest the Regulation gets to providing a definition can be found in the definition of “gas”. Gas is defined in the Regulations to mean any natural gas, either hydrocarbon or other, or any mixture thereof. By this reference, hydrocarbons are therefore a gas or any mixture thereof.
  3. Whilst that is the definition provided in our legislation, the Society of Petroleum Engineers (SPE), in their online publication PetroWiki,[1] in defining hydrocarbon, attributes, hydrocarbons with the following characteristics. Firstly, they are chemical compounds consisting wholly of carbon and hydrogen. That is, they are composed of many different components or molecules of carbon and hydrogen atoms. Secondly, it is also defined to mean that “heavier” hydrocarbon would have a greater tendency to exist as a liquid rather than a gas, and hydrocarbon also includes oil.
  4. In our limited research on the topic, we found that, another characteristic of hydrocarbon is that, as they can exist as either oil or gas they move within the earth’s subsurface and can continue to migrate until they encounter a trap—a geological structure that prevents further movement. Once trapped, they typically remain in place, accumulating over time to form oil and gas reservoirs. However, if the trap is disturbed or breached (due to tectonic activity, erosion, or other geological processes), the hydrocarbon can resume migration, potentially moving to a new trap or reaching the surface as a seep. So, while hydrocarbon can continue to migrate, they generally remain in situ once securely trapped.[2]
  5. It is also necessary in our view to understand the migratory nature of hydrocarbon and the claims to individual ownership of it before we proceed to consider the applicants’ arguments.
  6. The argument that hydrocarbon on one’s land belong solely to the landowner, despite the migratory nature of it,[3] is problematic for the following reasons:
    1. Migratory Nature of Hydrocarbon: As stated above hydrocarbon are not static; they often migrate through underground reservoirs and can move across property boundaries. This also means across licence boundaries. This migratory nature means that hydrocarbon in one area might originate from or flow into areas that are under different ownership[4]. As such, ownership of hydrocarbon is generally considered a matter of state or national law rather than individual property rights.
    2. Legal Framework and State Ownership: Like many other jurisdictions, PNG laws explicitly state that hydrocarbon belong to the State, not to individual landowners. This reflects the view that hydrocarbon are a national resource with value extending beyond individual land ownership. Thus, the law states that all hydrocarbons belong to the State, and for this reason, the legal framework should override individual claims of ownership. [See the Constitution and National Goals and Directive Principles, Goal No. 2 and 4, and Section 6 Oil and Gas Act 1998].
    3. Economic and Environmental Regulation: It is by design, that the State regulates the exploration and extraction of hydrocarbons to manage environmental impact and economic benefits. Allowing individual landowners to claim ownership could potentially lead to conflicts, inefficiencies in benefit sharing, and challenges in resource management.
    4. Compensation and Royalties: Landowners receive compensation or royalties for the extraction of hydrocarbons from their land, rather than claiming ownership of the hydrocarbons themselves. This compensatory mechanism recognizes landowners' rights without transferring ownership of the resource, there is no need to change the status quo. [See National Goals and Directive Principles Goal No. 4, and Oil and Gas Act 1998 ss 169-176 - Compensation and Royalties, Landowner and Local Community Benefits and ss. 167-168 Royalty and Revenue Distribution.]
  7. After reviewing the nature of hydrocarbon and their ownership, we now assess the applicants' claim. The applicants argue that as landowners of areas covered by petroleum licences PDL 1, PDL 7, PDL 8, and PDL 9, they also own the hydrocarbon beneath their land. However, they contend that they cannot exercise ownership rights over their traditional land as the State has been vested with exclusive ownership of all hydrocarbons by operation of Section 6(1) of the Oil and Gas Act 1998 and Section 212 B (1) of the Constitution.
  8. That is the subject matter which the applicants claim has directly affected their right as landowners to own all the hydrocarbon, the property or interest beneath their land. More specifically, the property they are interested in and seek to protect by bringing this application is only in relation to the hydrocarbon that they say is in its natural, untouched, unextracted and unprocessed state. They are not interested in the hydrocarbon that is in an extracted, processed and developed state.
  9. That raises the question, how do they know what hydrocarbon is untouched, unextracted and unprocessed and what is not? The answer to that will crystallize or ascertain their claim and enable the Court to determine whether they have a real and existing interest that they have a right over and that, that interest or right is affected by the subject matter and thereby vesting sufficient interest, and consequently standing. So, the next question is, is the hydrocarbon there (in the applicants’ land) or not?
  10. It is not an issue, that on the four (4) PDL areas, there are hydrocarbon extraction, storage, shipping and marketing activities being undertaken by the licensees by virtue of the Petroleum Development Licences they hold. The applicants are not concerned about those hydrocarbons, they are concerned about what is in its natural, untouched, unextracted and unprocessed state.
  11. Our reading of the material about hydrocarbon states that it must be discovered first and proved to exist in a certain location or locations[5]. Discovering hydrocarbon involves a combination of various technical tests or techniques. The technical tests or techniques prescribed in the Act and Regulations are: Geological and seismic surveys, geochemical analysis, exploratory drilling and well logging. Through those technical tests, one can ascertain the presence of hydrocarbon. In this case, it is not disputed that those techniques or tests were applied in various areas in the Hela Province resulting in the grant of 4 PDL areas which further resulted in the extraction of hydrocarbon and the derivation of benefits to landowners which we hear of to date.
  12. However, from their own submissions, that is not the hydrocarbon that the applicants are interested in. What has prompted their application, as they have argued in Court is what they term, untouched, unextracted, unprocessed HC which they claim they own and have exclusive right over because of their claim that they own all the land on which the 4 PDLs were issued over. They claim those rights have been directly affected by the enactment of Section 6 of the Act and Section 212B of the Constitution.
  13. The difficulty with that claim is that, how do they know there are untouched, unextracted or unprocessed hydrocarbon beneath the 4 PDL areas which they claim they own. How do they distinguish between the hydrocarbon that is the subject of extraction, processing and marketing agreements between the holders of the 4 PDLs and the hydrocarbon which they claim to own, which is untouched, unextracted, unprocessed. These PDLs which have gone through the process starting with exploration to discovery of hydrocarbon reserves to what is now at extraction and the processing stage. To ascertain what they are claiming, they must in our view conduct similar technical tests which involves a combination of geological, geophysical, and geochemical techniques and from which reports must be produced in evidence.
  14. We are of the view that only through those reports can the volume of hydrocarbon on their land (if any) and whether they are untouched, unextracted or unprocessed can be ascertained so as to demonstrate that their claim is not speculative as in the case of Donigi v The State (1991) PNGLR 376.
  15. Based on the foregoing, we now ask the question: have the applicants established personal interests or rights that have been directly affected by the subject matter?
  16. We have considered the arguments by the applicants at length, and note that, firstly, with respect to the first applicant, in order for him to establish he has a real interest or right that are directly affected by the subject matter, and that his interest lies beyond being a mere enquiry, the applicant must, in our view:

1. Identify the specific location by reference to specific customary land and volume of hydrocarbon which is the interest or property which he claims is untouched, unextracted, or unprocessed, which he further claims lie beneath the land he claims to own. This needs to be done by producing technical reports establishing and verifying the presence and volume of the untouched, unextracted or unprocessed hydrocarbon, the areas which they are present, and identifying and establishing the presence of all hydrocarbons remaining in situ on those traditional lands.


2. Demonstrate, the extent of his claim of landownership. This can be a Village Court or Local Land Court Order, identifying the land, setting out the land boundaries, and the interests it entails and


3. Identify the specific areas within PDL1, PDL 7, PDL 8 or PDL 9 which his traditional land lies.


  1. In summary, while the landowners claim that hydrocarbon on their land belong to them might be emotionally or economically compelling, it is generally not feasible given the migratory nature of hydrocarbons and the legal frameworks that typically assign ownership to the State as the process of extraction and marketing of hydrocarbon is highly technical and complex. If the applicant asserts that he has a right to develop and market hydrocarbon, then he must have evidence of proven hydrocarbon reserves that he claims ownership to. Simply, they must identify the hydrocarbon they claim ownership of that is in its natural or untouched or unextracted state, identify where it is located, provide proof of capacity to extract and market and produce all this evidence in support of the application. This include having financial and technical capacity.
  2. After reviewing the six affidavits relied upon by the applicant, we are not persuaded that the material establishes a concrete interest or right in specific volumes of untouched, unextracted hydrocarbons or their precise locations on traditionally owned land. The first applicant has not demonstrated the existence of such hydrocarbon to prove that the two laws directly impact his ownership rights. Without this evidence, the court would be speculating, making further inquiry baseless. See Donigi v The State (supra).
  3. Regarding the first applicant’s status as a citizen with a purported genuine concern for the subject matter, while we acknowledge his citizenship, we do not accept that his concern is genuine. Beyond the argument outlined above, the applicant raises additional issues focused primarily on economic interests, specifically:
    1. Ownership of equity in shareholding ([f], [g], and [h] of the application);
    2. Marketing of hydrocarbons; and
    1. Increased equity participation ([41] of the submission).
  4. The central question that emerges from these issues is whether they represent genuine concerns that justify an application under Section 18 of the Constitution. In our view, they do not. The applicant’s claims, while presented as matters of public interest, appear, prima facie, to be focused on commercial concerns rather than genuine constitutional issues. Specifically, the applicant's arguments center on economic aspects such as ownership of equity, marketing rights, and increased participation in hydrocarbons’ equity—areas that inherently pertain to financial and corporate interests rather than constitutional rights or principles.
  5. The Constitution's purpose in allowing applications under Section 18 is to address fundamental issues of constitutional interpretation and the protection of constitutional rights. However, we are of the view that, the issues raised here are largely tied to economic benefits and commercial considerations that do not engage the kind of public or legal interest required for constitutional scrutiny. As a result, we conclude that the applicant has not demonstrated a genuine constitutional concern in the subject matter.
  6. As to whether the first applicant is a holder of a public office, he is not, hence this criterion is not applicable.
  7. Having determined that the first applicant has failed to demonstrate any personal interests or rights that are directly impacted by the subject matter at hand, we conclude that he has not established sufficient interest in this matter. The requirement of sufficient interest is a critical element in determining whether an applicant has the standing to bring forth an application under section 18 of the Constitution.
  8. Without evidence of a direct and personal stake in the issues being raised, the first applicant's position lacks the necessary foundation for legal standing. This absence of a demonstrable connection to the subject matter means that he cannot be regarded as an aggrieved party deserving of the Court's consideration.
  9. Consequently, it follows that the first applicant has not satisfied the first requirement for standing. In short, this lack of standing is significant, as it precludes the applicant from pursuing further claims or relief through this application. Therefore, we conclude that the application cannot proceed based on his failure to establish the requisite standing in this matter.
  10. Regarding the second applicant, we find it clearly does not have standing. This conclusion is straightforward. The second applicant is an incorporated association under the Associations Incorporation Act 1966 (AI Act). According to this legislation, an “association” includes any society, club, institution, Christian mission, or similar body within the country.
  11. The Act stipulates that an incorporated association is intended for purposes such as providing recreation or amusement, promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes, or other community-related objectives. Additionally, it mandates that any profits or income generated by the association must be used to further its objectives and explicitly prohibits the payment of dividends or similar distributions to its members.
  12. The definition of an association under the AI Act, coupled with its intended purpose, clearly demonstrates that an association incorporated under this Act is not an appropriate entity for addressing issues and interests related to customary land.
  13. Furthermore, the Oil and Gas Act 1998 specifically delineates the types of entities that can engage in matters concerning traditional land ownership and resource management. Within this legislative framework, the Act explicitly recognizes incorporated land groups (ILGs) as the appropriate entities for representing customary land interests. An ILG is defined in section 3 of the Oil and Gas Act as follows: “An ILG has the meaning given in the Land Groups Incorporation Act 1974”. (LGI Act)
  14. In the interpretation provision (section 2) of the LGI Act, “an ILG” means a group that for the time being is recognized under Part III which is titled: RECOGNITION OF CUSTOMARY CORPORATIONS, ETC.
  15. Under s.11 of the LGI Act, an ILG is a corporation, has perpetual succession, has capacity to sue and be sued and has ability to acquire, hold and dispose of property.
  16. Section 13 of the LGI Act vests powers in incorporated land groups. It provides:

13. POWERS OF INCORPORATED LAND GROUPS.

(1) The powers of an incorporated land group–

(a) relate only to land and its use and management, and to associated matters; and
.........

(2) Subject to Subsections (1) and (3), an incorporated land group may–

(a) acquire, hold and dispose of customary land and rights in or in respect of customary land, in the manner (if any) and to the extent (if any) allowed by custom;...... .


  1. And under s. 169 (2) (b) and s.169A of the LGI Act, incorporated land groups that are determined by the Minister can receive equity and royalty benefits on behalf of the grantees of the benefits.
  2. Clearly, the provisions of the LGI Act, establishes a distinct legal identity for groups representing landowners and provides them with the capacity to make claims and engage in negotiations related to land and resource use.
  3. Consequently, the lack of recognition for associations under the Oil and Gas Act 1998 underscores their inapplicability for representing customary land issues. For any claims regarding customary land interests to be valid and actionable, they must be brought by entities that are recognized under the relevant legislation, such as ILGs. This distinction is crucial for ensuring that the interests of traditional landowners are adequately represented and protected within the legal framework governing land and resource management.

Conclusion


  1. In conclusion, our analysis indicates that the first of the four considerations outlined in the Somare Rules does not favor the applicants, nor does it support the exercise of discretion in their favor. This finding is significant because the Somare Rules clearly stipulate that an applicant seeking a declaration of standing must satisfy all four requirements. Therefore, if one of these requirements is not met, the request for a declaration of standing must be denied outright.
  2. Given that we have found against the applicants on this initial consideration, it becomes unnecessary to examine the remaining factors. The strict adherence to the criteria set forth in the Somare Rules ensures that only those applicants who meet all stipulated requirements are granted standing to pursue their claims. In this case, the failure to satisfy the first requirement effectively precludes any further consideration of the applicants' standing.
  3. As a result, based on our findings regarding this initial requirement, we must conclude that the applicants’ request for a declaration of standing cannot be granted and must be refused. This outcome underscores the importance of meeting all procedural prerequisites when seeking judicial consideration, reaffirming the integrity of the legal standards established by the Somare Rules.
  4. We propose the following orders on behalf of the Court:

1. The applicants request for a declaration as to their standing is refused.

2. These proceedings are dismissed.

3. The applicants shall pay the intervener’s costs of the proceedings on a party- party basis to be taxed if not agreed.


  1. HARTSHORN J: I have had the opportunity of reading the draft judgments of the other members of this Court. I agree that the applicants’ request for a declaration of standing should be refused. This judgment sets out my own reasoning.
  2. One of the factors for consideration on an application for a declaration as to standing is whether the substantive application raises significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues: Namah v. Pato [2014] PNGLR 169 at [3].

125. It is submitted on behalf of the applicants that they raise issues with regard to the ownership, right or interest of traditional landowners over oil and gas resources situated in their customary or traditional land. Specifically, the applicants seek declaratory relief in respect of amongst others, hydrocarbons situated on, at or below customary land and the ownership thereof.


126. The applicants, as evidenced by this proceeding, take issue with and dispute the ownership of the hydrocarbons situated on, at or below their customary land as affected by s. 6(1) Oil and Gas Act 1998 and s. 212B (1) Constitution.


127. The Land Disputes Settlement Act 1975 (LDSA) relevantly provides:


s. 3(1)

(1) Subject to Subsection (2) and to Section 4, this Act applies to disputes as to interests in customary land; ...

(Subsection (2) and Section 4 are not relevant in this instance)


s. 26

Subject to Section 3 and 4 and to this Part, a Local Land Court has jurisdiction over and in relation to –

a) a dispute as to an interest in land where the land in dispute is situated wholly or partly within the province for which the Court is established.


128. In s. 2 LDSA:


“interest” includes any interest in land of whatsoever nature that is recognised by the custom of the people of the area in which the land is located.


“land” means customary land and includes –

.....

(c) things growing on land or in water over land, earths and minerals on or under land; and

(d) an interest in land.


129. The definition of “interest” is sufficiently wide to encompass hydrocarbons and oil and gas reserves; and an interest which is not presently owned by customary landowners, but which is recognized by the custom of the people of the area in which the land is located. This is one of the assertions of the applicants in this instance.


130. In Louis Lucian Siu v. Wasime Land Group Incorporated (2011) SC1107, the Supreme Court (Injia CJ (as he then was), Manuhu and Kawi JJ) said at [19] – [21]:


“19. The Land Dispute Settlement Act itself defines "interests" in section 2 of the as follows: "Any interests in the land of whatsoever nature, that is recognized by the customs of the people of the area in which the land is located."

20. In Mamun Investments v Paul Ponda & Ors [1995] PNGLR 1. The Supreme Court (Kapi DCJ and Injia J as their Honours were then), stated that "sufficient interests" in the context of locus standi or standing "means property interests" or proprietary interests, legal or equitable or even social or political interests".

21. So too in the present appeal, it is our considered opinion and we do hold that the phrase "a dispute as to an interests in Land" as used in Section 26 and other provisions of the Land Dispute Settlement Act means a property interests or proprietary interests or a legal or equitable interests or any financial and monetary interests arising out of one's ownership of such customary lands or over the use of such traditional lands and includes financial benefits and any other benefits derived from the use of such lands.

It also means any monetary or financial benefits arising from or associated with or in connection with the use of or with one's ownership of such a customary land and includes financial payments and benefits paid to land owners.”

(See also:

1. Kuman v. Digicel (PNG) Ltd (2019) SC1851 at [51] which reproduced [21] with approval)

2.Talibe Hegele v. Tony Kila (2012) SC1180 at [15] as to lack of jurisdiction of the Supreme Court).


131. Consequently, the issues raised by the applicants, being a dispute or disputes as to interests in customary land, are not within the jurisdiction of this Court. This proceeding is therefore either hypothetical, trivial or frivolous. The applicants have not raised a significant constitutional or other issue that is not hypothetical, trivial or frivolous. As one of the factors required for a successful declaration as to standing has not been satisfied, this application for a declaration that the applicants have standing should be refused.


  1. The Orders of the Court are as follows: -

1. The Application is refused.

  1. The Applicants shall pay the Intervener’s costs of and incidental to this Application, which are to be taxed if not otherwise agreed.

________________________________________________________________
SLM Legal Practice: Lawyers for the Applicants
Mel and Henry Lawyers: Lawyers for the Respondent

[1] https://petrowiki.spe.org/Glossary:Hydrocarbon
[2] University of New South Wales. School of Petroleum Engineering. (2009). Short courses for the oil and gas industry: Introduction to the oil and gas industry.
[3] University of New South Wales. School of Petroleum Engineering. (2009). Short courses for the oil and gas industry: Introduction to the oil and gas industry.
[4] UNSW (supra)
[5] University of New South Wales. School of Petroleum Engineering. (2009). Short courses for the oil and gas industry: Introduction to the oil and gas industry

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