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Tomu for and on behalf of Luhalipu Clan of Samberigi, Southern Highlands Province and Jimmy Kebotiki Kinobu for and on behalf of Imawe Kewa Clan of Kaiama No 2 Village, Kikori, Gulf Province v The Independent State of Papua New Guinea, Winton Sale [1996] PNGLR 101 (19 April 1996)

PNG Law Reports 1996

[1996] PNGLR 101 - Soso Tomu for and on behalf of Luhalipu Clan of Samberigi, Southern Highlands Province and Jimmy Kebotiki Kinobu for and on behalf of Imawe Kewa Clan of Kaiama No 2 Village, Kikori, Gulf Province v The Independent State of Papua New Guinea, Winton Sale

[1996] PNGLR 101

N1422

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SOSO TOMU FOR AND ON BEHALF OF LUHALIPU CLAN OF SAMBERIGI, SOUTHERN HIGHLANDS PROVINCE; AND

JIMMY KEBOTIKI KINOBU FOR AND ON BEHALF OF IMAWE KEWA CLAN OF KAIAMA NO 2 VILLAGE, KIKORI, GULF PROVINCE

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA;

WINTON SALE FOR AND ON BEHALF OF MUKAUL KIPAN LAND GROUP (INC.) & OTHERS;

PETER MORO FOR AND ON BEHALF OF MAKEWA LAND GROUP (INC.) OF SIAWITI VILLAGE;

CYRIL SAKIRU FOR AND ON BEHALF OF MUSONERI LAND GROUP (INC.) OF SIAWITI VILLAGE;

PAUL TIMA FOR AND ON BEHALF OF WAFI LAND GROUP (INC.) OF SIAWITI VILLAGE;

CHEVRON NIUGINI PTY LTD;

LESLIE OPE FOR AND ON BEHALF OF IMAWA BOGASI CLAN OF SOUTHERN HIGHLANDS PROVINCE; AND

OBED POSOU FOR AND ON BEHALF OF BEPULSU GOBE CLAN OF SOUTHERN HIGHLANDS PROVINCE

Waigani

Sheehan J

11 April 1996

19 April 1996

CONSTITUTIONAL LAW - Originating summons - Applications for declarations as to ownership of Oil and Minerals in Papua New Guinea - Challenge to validity of ss 5 of Mining and Petroleum Acts - Defendants applications to strike out plaintiffs’ claims on grounds of lack of jurisdiction, lack of standing in the plaintiffs and for want of cause of action.

Facts

The plaintiffs are customary land owners whose land with others is located within the Gobe Development Project area. To ascertain the rightful land owners in the Gobe Development Project Area a Lands Title Commission was established.

After receiving submissions from relevant customary land owners and the plaintiffs, the Lands Title Commission rejected the plaintiffs claim that they were owners of customary land located within the Gobe Development Project area. The plaintiffs are seeking a review of the decision of the Lands Title Commission.

In this review they are seeking certain declarations that the provisions of the Mining Act and the Petroleum Act vesting ownership of minerals and oil in the State contravenes s 53 of the Constitution.

Held

1.       Applications which require the interpretation of constitutional provisions are outside the jurisdiction of the National Court.

2.       An application for relief does not constitute a form of action and therefore cannot fall under the category of actions brought under s 57 of the Constitution. Lowa v Akipe [1992] PNGLR 399 followed.

3.       A plaintiff whose right to customary ownership of land has been rejected by the Lands Title Commission has no locus standi in proceedings where he is seeking declarations of proprietary ownership in the same land in the National Court.

Cases Cited

Papua New Guinea case cited

Lowa v Akipe [1992] PNGLR 399.

Counsel

S Soi, for the plaintiffs.

J Kawi, for the State.

D Hauka, for 2nd, 3rd, 4th and 5th defendants.

E Anderson and M Uari, for the 6th defendants.

P Pena, for defendants 7th and 8th.

19 April 1996

SHEEHAN J: The plaintiffs claiming as customary land owners, assert that the rights to all oil and or minerals occurring on or under their customary land belong to them alone. Their Counsel has told the Court that the plaintiffs have

“come to this Court to decide on a very important issue, namely to decide ownership of the resources that are located beneath their customary land, in particular, they have come to this Court to ask the Court to decide whether or not the Government of Papua New Guinea or the customary land owners own the oil that is located beneath this customary land. Timing is ripe and the issues that they have raised for this Court to decide.”

The claims that the plaintiffs have put forward have arisen because of a projected development of “land known generally as the Gobe Main and the South East Gobe Oil project in the land region of the Gulf and Southern Highland Province”. (The Gobe Development project area).

As a precursor to the project, a Lands Title Commission was appointed to identify the customary land owners in the project area, and who would likely be affected by the development.

The plaintiffs duly made application before the Land Title Commission, but their claims to customary ownership of land within the project area were declined. The plaintiffs have therefore sought review of that determination pursuant to s 34 of the Land Titles Commission Act.

In the interim they have brought these proceedings to protect their interest in the land, seeking declarations that statutory provisions in the Mining and Petroleum Act reserving rights to minerals and oil to the State are invalid and in breach of their Constitutional Rights guaranteed by s 53 of the Constitution.

The specific declarations and the injunctions sought to uphold these claims are as follows:

1.       A declaration that s 5 of the Mining Act 1992 is valid in relation to gold and minerals found in, on or under land owned by the defendants.

2.       A declaration that s 5 of the Mining Act 1992 is so far as it purports to apply to gold and minerals found on or under customary land owned by the plaintiffs is contrary to s 53 of the Constitution and therefore unconstitutional.

3.       A declaration that s 68 of the said Mining Act 1992 does not comply with s 53 of the Constitution in that the purposes specified therein are private in nature as opposed to public as required by the said s 53 of the Constitution.

4.       A declaration that s 5 of the Petroleum Act Ch No 198 is valid in relation to helium and petroleum found in, on or under land owned by the defendant.

5.       A declaration that s 5 of the Petroleum Act Ch No 198 in so far as it purports to apply to helium and petroleum found in, on or under customary land owned by the plaintiff is contrary to s 53 of the Constitution and therefore unconstitutional.

6.       A declaration that s 83 of the said Petroleum Act does not comply with s 53 of the Constitution in that the purposes specified therein are private in nature opposed to public as required by the said s 3 of the Constitution.

7.       A declaration that all royalties payable under the Mining and the Petroleum Acts in respect to gold and minerals or petroleum and helium found in, on or under and taken from any customary land owned by the plaintiffs, are the property of the plaintiffs and the members of their clans to be distributed according to custom and not the property of the defendant, such as would enable the defendant to deal with the said royalties in any manner it sees fit.

8.       An injunction restraining the defendant from issuing a Licence to any designated developer or potential developer to develop the oil located beneath the plaintiffs customary land until this matter is finally determined by the Courts.

9.       An injunction restraining the defendant and the developer not to use or apply the benefits of compensation due to the disputing parties until the determination of the appeal and the substantive hearing of this motion.

These claims are made of the Independent State of Papua New Guinea, the sole defendant at the time of the lodging of these proceedings on 4 March 1996. Thus the defendant referred to in the summons is the State alone, notwithstanding that there are now seven (7) other defendants. They comprise six (6) other clans having land owner status in the Gobe Development project area by virtue of the Land Title Commission’s determination, (Defendants 2, 3, 4, 5, 7 & 8) and Chevron Niugini Pty Limited (Defendant 6) the operator and representative of the Licensees of the development and exploration rights over the land in the project area which are subject to the plaintiff’s claims.

The defendants now have three motions before the Court to strike out the plaintiffs claims citing procedural and substantive grounds. The 1st and 6th defendants in separate motions contend that, the plaintiffs’ summons discloses no cause of action arguable in law. Defendants 2, 3, 4, 5 also move to strike out asserting that the plaintiff have no standing to seek the relief applied for, and in any case this Court has no jurisdiction to determine the issues raised in the manner adopted by the plaintiffs. Counsel for defendants 7 and 8 made submissions in support of these motions.

It is appropriate that the motion of the 2, 3, 4, and 5 defendants raising procedural and jurisdictional challenges be considered first. It is first in time and in any case, challenge to jurisdiction must be the first issue determined in any Court enquiry.

In fact the contention of these defendants regarding jurisdiction can also be categorised as procedural. It is not so much an assertion that the national Court has no jurisdictional capacity to consider such matters as are now raised so much as a submission that the manner in which the proceedings have been commenced precludes the National Court from entertaining them. The Supreme Court has exclusive jurisdiction as to the interpretation or application of provisions of the Constitution, but with the proviso that the National Court has a concurrent jurisdiction in enforcing constitutional rights. In this case the plaintiffs have failed to invoke the National Courts powers and jurisdiction to enforce constitutional rights. There is no claim made for enforcement of constitutional Rights, there is merely the assertion of invalidity and inconsistency of statutory provisions with s 53.

The only other way in which the issues the plaintiffs wish to raise, might be the subject of examination by the National Court is where they arise in the course of proceedings legitimately commenced within the jurisdiction of the National Court. In such a case the National Court would be empowered to examine those in terms of s 18(2) of the Constitution and if necessary refer any question to the Supreme Court. This has not occurred. No cause of action is disclosed before this Court and in any case such claims as are made are without the plaintiffs having the standing or right to bring them.

It is submitted that the plaintiffs’ obviously have no standing to claim the declaratory relief in respect of State land as they have done in paragraphs 1 and 4 of the originating summons. Nor do they have standing in respect of the customary land within the project area. At this stage at least, notwithstanding the plaintiffs application for review under s 34 of the Land Title Commission Act, they have in fact no customary rights of ownership in that land. None of their claims therefore, are based on any actual property rights of the plaintiffs that are affected in any way.

By this motion it was also submitted that in any case the commencing of proceedings by originating summons is entirely inappropriate. Order 4 r 3 of the National Court Rules provide that this mode of originating process should only be used where there is little or no dispute on facts. Here the essential facts remain in dispute not the least being the ownership of the customary land and indeed just which land the plaintiffs claim title to. Again there is no factual evidence regarding the acts which are alleged to amount to compulsory acquisition by the State.

The plaintiffs have acknowledged that the declarations sought by them involve the issue of whether or not the land owners do have any legal or constitutional rights to minerals and or petroleum beneath customary land. Counsel for the plaintiffs said:

“this honourable Court has a duty to protect and uphold the Constitutional Right which has been infringed. Provision of the Constitution is found at s 53 - unjust deprivation of property. The provision of legislations which are inconsistent and violates s 5 of the Constitution are: s 7 of the Mining Act ch 195 and s 5 of the Petroleum Act ch 198.

He went on to urge that the time for these issues to be determined is now, because of the ongoing development of mineral and oil resources in Papua New Guinea”.

On the issue of locus standi plaintiffs’ Counsel submitted that:

“in considering whether or not Locus Standi should be granted to the plaintiffs to claim the declarations sought in the originating summons, this Honourable Court should give due weight to the issues raise in the statement of the plaintiff (and their witnesses) which are (about issues) of equal importance to the nation, the government, the investors and the land owners ... as evidence of the fact that the plaintiffs are not mere busybodies but do have a real interest in identifying, protecting and promoting the legal and Constitutional interests of the plaintiffs and in particular the customary land owners throughout Papua New Guinea”.

Counsel for the plaintiff denied there was need to commence proceedings by way of enforcement of Constitutional Rights under s 57 contending that, the plaintiffs needed to establish their rights first.

The plaintiffs acknowledged that they are asking this Court to interpret the Constitution and Mining Act and Petroleum Act, like the defendants the plaintiffs say these issues are ready for determination. Once the court has decided the facts, and these can be and are established by the affidavits of the plaintiffs and their witnesses; then questions of interpretation that may arise could be referred to the Supreme Court.

The 1st and 6th defendants while supporting submissions of the other defendants pointed out that this is the fourth occasion on which the issue of the ownership of oil and minerals in Papua New Guinea has come before the National Court. All those previous claims have been dismissed for largely procedural reasons. Counsel for 1st and 6th defendants nonetheless supported the plaintiffs’ contention that the claims for declarations should be heard in these proceedings.

It was submitted that, even though the submissions of procedural error and lack of standing are obviously valid, the Court should nonetheless consider the substantive issues raised by the plaintiffs as well, because there is no basis of argument or merit in the plaintiffs claims and it is timely that the Court should so state. Essentially they contended it is appropriate that there should be a once and for all decision by the Courts.

They said that, to enable the plaintiffs’ issues to be argued, and determined, for the sake of that argument it might be acknowledged that a possibility of a residual of right to claim customary ownership remained in the plaintiffs by virtue of their applications to the Land Title Commission for review. Therefore, the Court should consider the plaintiffs’ claims so that the futility of them could clearly be seen and meanwhile proceedings dismissed.

The first question that must be answered is whether this Court does have the jurisdiction to hear claims for interpretation and an application of Constitutional laws. The plain answer is that, no, it does not.

The Supreme Court made that plain in Lowa v Akipe [1992] PNGLR 399. That decision was from rulings made in the National Court in regard to certain applications for declarations that are all but identical to those sought in these proceedings.

The Supreme Court said (p 419) that the trial Judge (Salika, J.):

“rightly held that he had no jurisdiction as a National Court Judge to make a declaration that ss 7 and 200 of the Mining Act (ch 195) were unconstitutional as being contrary to s 53 of the Constitution. In agreeing to this we also emphasise that if plaintiff had gone to the National Court pursuant to s 57 of the Constitution for enforcement of their rights to property under s 53 of the Constitution, the National Court would have had clear jurisdiction to entertain the matters and (if thought fit) make the declarations sought by the respondent”.

That decision went on to reiterate that s 18 of the Constitution reserves the exclusive jurisdiction for the interpretation and application of such matters to the Supreme Court. It also pointed out that no action can be founded on s 18(2). That subsection only provides for a situation where a question of interpretation or application of a Constitutional Law arises in the ordinary course of litigation properly commenced before the National Court, which require referral.

As stated in Lowa v Akipe:

“but this latter aspect of s 18 does not arise here. In their case the respondents did not apply to the National Court for enforcement of their property rights guaranteed by s 53 of the Constitution. They merely took action in the National Court and sought various orders including a declaration that s 7 and 200 of the Mining Act were unconstitutional. By taking this course the respondent failed to invoke the wide powers of the National Court conferred by s 57(3) of the Constitution”.

The plaintiffs acknowledged that their claims before this Court require the interpretation or application of the provisions of the Constitution. That is outside the jurisdiction of the National Court.

An application even with the consent of both the plaintiff and defendants that the National Court should determine these issues, does not and cannot confer a jurisdiction on the National Court which it does not have.

Nor can the Court conclude from the plaintiffs claim as pleaded that, there is a s 57 of the Constitution action, to be implied. There are no causes of action pleaded, only claims for relief and as was confirmed in Lowa v Akipe, claims for relief do not constitute a form of action.

Neither do the affidavits filed in support state any clear cause of action. The assertion of ownership of customary rights in land is balanced by the decision of the Land Titles Commission (at least as to the project area) that they do not hold such land outside the project area. This lack of precision certainly lends weight to the argument that these proceedings would more appropriately have been commenced by writ.

If lack of jurisdiction were not enough, it must also be recognised that the plaintiffs do not have standing to bring the claims for the declaratory relief sought. In particular they have no standing to seek declarations 1 and 4 that the mineral and oil rights in State land validly belong to the State. As regards land in the Gobe development project area, notwithstanding their application for review, it is the present decision of the Land Titles Commission that, they have no rights in the customary land of that area. Under such circumstances it is not open to the plaintiffs to found this application on a claim of customary land ownership in respect of that land. The issue of lawful title has been determined and they are excluded - at least at this time. While the review may alter that situation, they are precluded from claiming lawful existing rights until the present title is changed in their favour.

Claims that as customary land owners (of land outside the project area) and as citizens, the issues they raise are of national importance, does not establish their locus standi either. Certainly not in regard to the State land and not in this Court either. Because they do not seek enforcement of Constitutional rights under s 57 in this Court, they are required to bring such issues before the only Court of original jurisdiction for interpretation and application of Constitutional provisions. That is the Supreme Court.

The reasons advanced as to standing and present ownership of customary rights in the project area also preclude the injunctive relief sought by the plaintiffs. Essentially they fail to disclose an arguable case and certainly the balance of convenience does not lie in halting the procedures for development commenced with the establishment of customary land owners by Land Titles Commission.

I see no possibility of the plaintiffs proceedings being successfully amended either. Accordingly the motion of defendants 2, 3, 4, and 5 to strike out these proceedings must therefore succeed essentially, for the reason that this Court has no jurisdiction to hear the plaintiffs claim for declaratory relief. The plaintiffs have chosen to bring their claims to the National Court framed in a manner expressly ruled invalid by the Supreme Court some 5 years ago. The plaintiffs have also failed to disclose any cause of action in their pleadings filed in this Court or any arguable case for the injunctive relief sought pending the review before the Land Titles Commission.

The plaintiffs claims for declaratory and injunctive relief is therefore, dismissed.

Lawyer for the plaintiff: Soi & Co Lawyers.

Lawyer for the State: Solicitor General.

Lawyer for the 2nd, 3rd, 4th and 5th defendants: Habuka Lawyers.

Lawyer for the 6th defendant: Arthur Allens Robinson.

Lawyer for the 8th defendant: Peter Pena Lawyers.