Donigi v The State

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 07 November 1990
• Citation: [1991] PNGLR 376
• Court: National Court
• Year: 1991
• Judgement Number: N1008

National Court: Brown J

Judgment Delivered: 7 November 1990

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DONIGI

V

THE STATE

Waigani

Brown J

10 October 1991

7 November 1991

PRACTICE AND PROCEDURE — Declaratory relief — When available — As to effect of legislation — Specific problem for determination — No power to declare abstract propositions — Locus standi — Sufficient interest — Joinder of parties — Binding effect on interested parties — Merger of rights

A private citizen, who was a traditional landowner and president of the Law Society of Papua New Guinea, sought declaratory relief as to the constitutionality of particular provisions of the Mining Act (Ch No 195) of the Petroleum Act (Ch No 198) which reserve rights of ownership in gold, minerals or petroleum below the surface of land to the State. The landowner could not show the presence of gold, minerals or petroleum below the surface of customary land owned by him.

The State as defendant sought to strike out the proceedings.

The National Court Rules, O 5, r 8, provides:

"8. Addition of parties

(1) Where a person who is not a party:

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings."

Held

(1) The power of the National Court to grant declaratory relief in respect of legislation:

(a) is dependent on there being a specific problem concerning it which requires the determination of personal or proprietary rights: there is no power to declare hypothetical problems; and

California v San Pablo and Tulare Railroad 149 US 308 at 314 (1893) and Australian Boot Trade Employees' Federation v The Commonwealth (1954) 90 CLR 24 at 50, adopted and applied.

(b) requires all necessary and proper persons whose interests may be affected to be joined as parties.

(Per Brown J) Where persons not within the contemplation of the parties to proceedings are likely to have an interest in the outcome of the proceedings affecting their private or public rights and, where declarations of the nature envisaged by the plaintiff cannot effectively bind such persons, there is no good cause to be achieved in embarking on a consideration of the issues without proper representative orders which cannot be made in this case.

(c) requires the plaintiff to have sufficient interest as a particular member of the public who is suffering or is at risk of suffering direct and substantial damage other than that which is common to the rest of the public.

Rickless v United Artists Corporation [1988] QB 40; [1987] 2 WLR 945, Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 and Boyce v Paddington Borough Council [1903] 1 Ch 109, applied.

(2) In the circumstances, the proceeding should be struck out:

(a) the plaintiff's claim was hypothetical and not founded on property rights actually affected;

(b) the declaration as sought would not bind other interested persons; and

(c) the plaintiff's interests as a citizen, landowner and president of the Law Society were objectively not sufficient to found the particular claim.

Cases Cited

Australian Boot Trade Employees' Federation v Commonwealth (1954) 90 CLR 24, adopted and applied.

Boyce v Paddington Borough Council [1903] 1 Ch 109.

California v San Pablo and Tulare Railroad 149 US 308 (1893).

I G Farbenindustrie A G Agreement, Re [1944] Ch 41; cited SCR No 4 of 1980.

Johnson v Dunbar 114 MYS (2nd) 845 (1952).

Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173.

Petition of M T Somare, Re [1981] PNGLR 265, distinguished.

Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34.

Rickless v United Artists Corporation [1987] 2 WLR 945.

Robinson v Western Australian Museum (1977) 51 ALJR 806.

Notice of Motion

The proceedings came before the court by way of notice of motion by the defendant seeking to have the plaintiff's summons for declaratory relief struck out.

Counsel

The plaintiff in person.

Z Gelu, for the State.

Cur adv vult

7 November 1991

BROWN J: This motion seeks that the plaintiff's proceedings be struck out. The plaintiff's originating summons seeks declarations, including declarations, in relation to the unconstitutional nature of particular sections of the Mining and Petroleum Acts, as they purport to affect ownership in gold, minerals, helium or petroleum found in or under land owned by the plaintiff.

The State says that the plaintiff lacks standing. It has filed an affidavit by the Acting State Solicitor, Mr Zacchary G Gelu, who also says the plaintiff lacks sufficient interest in the proceedings. He says that in these particular circumstances the plaintiff, even as a citizen and landowner, has no locus standi. He also is not an authority enumerated in s 19 (3) of the Constitution. Further in the absence of gold, minerals or petroleum there exists no actual or contingent matter in issue between the parties.

The plaintiff on the other hand argues that property includes tangible and intangible rights. He claims a right to that which may or may not be under his land. This is sufficient interest in property to satisfy the Court.

He is the president of the Papua New Guinea Law Society a body vitally interested in the application of the law in Papua New Guinea and he is personally involved in political and social inquiries which relate to the general issue of landholder rights and interests. His personal involvement is of long standing and is genuine.

He has presented papers at development seminars and has been extensively reported by the media when he has made statements in relation to the subject. Since the phrase has been used in cases reported both here and abroad, I should say that I find he is not a "busy body", as somebody intermeddling in affairs of no consequence to him.

The plaintiff points to the Supreme Court (SCR No 4 of 1980; Re Petition of M T Somare [1981] PNGLR 265) as supporting his claim to locus standi. He is a citizen and has a genuine interest in the proceedings before the Court. He says this is a challenge to the legislative power to make laws relating to mines of gold and petroleum found in or under his customary land, since such laws are at variance with his constitutional right to property.

The plaintiff then embarked shortly on an address which related more to the merits of the application, stating that the court has a duty to protect and uphold a constitutional right which has been infringed. The provision of the Constitution is found at s 53 — "Unjust Deprivation of Property". I should refer the question about infringement of my own volition pursuant to s 57 — Enforcement of Guaranteed Rights and Freedoms, to the Supreme Court. That latter section of the Constitution, does, as Mr Gelu for the State says, rather beg the question in this instance, whether there has been unjust deprivation of property. There cannot be in fact, for gold, for instance, has not been shown to exist. There are no mines of gold or other minerals on the plaintiff's land nor so far as I am aware is there petroleum.

I am left rather, with consideration of factors relevant in proceedings seeking declarations, factors which include "locus standi". But before I identify and discuss those factors, I wish to make some general points.

Mr Donigi's claim is as a customary landowner of a particular piece of ground, one which is known as "Dupulum" of Lowan village, East Sepik Province.

He has deposed to the importance he places on the Balaebus Clan relationship and has described shortly, but by way of illustration, his links with his land.

I am satisfied he is a "traditional landholder". It is conceded that at this time no mines or minerals are on or known to be under his land nor do any petroleum licences affect the land.

Land tenure of customary land in Papua New Guinea is like a many faceted jewel, giving a different face from every angle. The variances are multiplied for each clan may argue that its customary land holding relationships differ ever so slightly to those of its neighbours, (giving such custom its peculiar many faceted effect) while clans at opposite ends of the country, may not have many similarities at all. But the thread in this diversity is the emphasis on the interacting social relationship. I particularly have regard to Thomas G Harding's monograph on the subject of land tenure (Encyclopaedia of Papua New Guinea, 1972 ed, Peter Ryan; vol 2) where (at 606) he says:

"... Land & Kin Groups

The societies of New Guinea are familaristic or kin-based. They lack the highly specialized land use, market system, and formal politico-legal institutions that give form and substance to property in land characteristic of Anglo-American society. Both economic and political processes may be said...