Joe Koroma and Guyeibi Nogoi Yowa Omowo, Land Group Inc Ilg No 12155 ad Peter Kowane and Tigina Kwiave, Land Group Inc Ilg No 10244 v Mineral Resources Authority and Ramu Nickel Limited and Ramu Nico Management (MCC) Limited and The Independent State of Papua New Guinea (2009) N3926

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 July 2009
• Court: National Court
• Citation: (2009) N3926
• Docket Number: OS NO 280 OF 2009
• Year: 2009
• Judgement Number: N3926

Full Title: OS NO 280 OF 2009; Joe Koroma and Guyeibi Nogoi Yowa Omowo, Land Group Inc Ilg No 12155 ad Peter Kowane and Tigina Kwiave, Land Group Inc Ilg No 10244 v Mineral Resources Authority and Ramu Nickel Limited and Ramu Nico Management (MCC) Limited and The Independent State of Papua New Guinea (2009) N3926

National Court: Cannings J

Judgment Delivered: 10 July 2009

N3926

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 280 OF 2009

JOE KOROMA

First Plaintiff

GUYEIBI NOGOI YOWA OMOWO

LAND GROUP INC ILG NO 12155

Second Plaintiff

PETER KOWANE

Third Plaintiff

TIGINA KWIAVE

LAND GROUP INC ILG NO 10244

Fourth Plaintiff

V

MINERAL RESOURCES AUTHORITY

First Defendant

RAMU NICKEL LIMITED

Second Defendant

RAMU NICO MANAGEMENT (MCC) LIMITED

Third Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Madang: Cannings J

2009: 7, 10 July

PRACTICE AND PROCEDURE – motion to dismiss proceedings for failure to disclose reasonable cause of action, being frivolous and vexations, being an abuse of process – National Court Rules, Order 12, Rule 40.

INJUNCTIONS – interim orders sought re provision of information and documents to parties claiming interest in customary land over which special mining lease has been granted – interim orders sought to prevent

holder of mining tenement entering tenement pending determination of proceedings.

Individuals and clans who claimed to have an interest in customary land over which a special mining lease has been granted commenced proceedings by originating summons seeking declarations that, amongst other things, various documents and agreements, including a compensation agreement, are void. Prior to the trial of the originating summons, two motions were filed. One by the third defendant (the tenement holder) supported by the first defendant (the Mineral Resources Authority), seeking orders that the entire proceedings be dismissed as no reasonable cause of action is disclosed, the proceedings are frivolous and vexatious and an abuse of process, and the proceedings relate to title to customary land and fall outside the jurisdiction of the National Court. The other motion is by the plaintiffs and seeks orders that various information and documents be provided to them and orders in the nature of interim injunctions that no meetings regarding landowner issues be held without their involvement and that the holder of the special mining lease be restrained from entering certain parts of the land covered by the lease pending determination of the substantive proceedings.

Held:

(1) It is sufficiently apparent that the relief sought in the originating process is based on alleged breaches of Part VII (compensation to landholders) of the Mining Act. Accordingly a reasonable cause of action has been disclosed, the proceedings are neither frivolous nor vexatious and no abuse of process has been proven. Further, the cause of action is not beyond the jurisdiction of the National Court. The motion for dismissal was consequently refused.

(2) As to the plaintiffs’ motion for interim orders, an arguable case in support of the substantive proceedings was made out but the balance of convenience and the interests of justice do not warrant the granting of most of the interim relief sought by the plaintiffs.

(3) Orders made to require the Mineral Resources Authority to furnish certain information and documents to the plaintiffs.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Kiee Toap v The State (2004) N2731

Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425

Ronny Wabia v BP Exploration Co Ltd [1998] PNGLR 8

Tigam Malewo v Keith Faulkner and Ok Tedi Mining Ltd (2009) SC960

Counsel

T Nonggorr, for the plaintiffs

D Aikung-Hombhanje, for the first defendant

G Gileng, for the third defendant

10 July, 2009

1. CANNINGS J: This is a case about the Ramu Nickel Project in Madang Province. The plaintiffs represent two of the 25 clans who claim to be customary owners of the land covered by the special mining lease for this project. The plaintiffs are aggrieved by the way in which various agreements about compensation and spin-off projects have been negotiated and entered into over the last ten years or so. They say that the State and its agents, including the Mineral Resources Authority, and the developer of the mine and holder of the special mining lease (the third defendant) have shut them out of the process. They say that negotiations and agreements have been entered into with an association called the Kurumbukari Landowners Association which is not truly representative of all clans claiming to be customary landowners. They say that that Association represents only four clans.

2. The plaintiffs on 29 May 2009 filed an originating summons, seeking declarations that, amongst other things, various documents and agreements purporting to be signed on behalf of the customary landowners of the part of the special mining lease called Kurumbukari Block 1, including a compensation agreement, are void.

3. The trial of the originating summons has not yet been conducted. While the trial is pending, two motions have been filed.

4. The first motion, filed on 24 June 2009, is by the third defendant (the tenement holder), and is supported by the first defendant (the Mineral Resources Authority). They seek orders that the entire proceedings be dismissed for two reasons. First, no reasonable cause of action is disclosed, and the proceedings are frivolous and vexatious and an abuse of process. Secondly, the proceedings relate to title to customary land and fall outside the jurisdiction of the National Court.

5. The other motion, filed under an amended notice of motion on 2 July 2009, is by the plaintiffs. They seek orders that various information and documents be provided to them and orders in the nature of interim injunctions that no meetings regarding landowner issues be held without their involvement and that the holder of the special mining lease be restrained from entering certain parts of the land covered by the lease pending determination of the substantive proceedings.

This is a ruling on those two motions.

THE FIRST MOTION: SHOULD THE PROCEEDINGS BE DISMISSED?

No reasonable cause of action etc

6. The first and third defendants argue that the proceedings disclose no reasonable cause of action and are frivolous and vexatious and an abuse of process as the plaintiffs’ claims are merely speculative. A Special Land Titles Commission has been established to inquire into and determine the question of customary ownership of the land covered by the SML. Until that Commission completes its inquiry and makes its determinations the plaintiffs have no interest in the land capable of enforcement through the processes of the National Court. It is plain and obvious that the plaintiffs will not succeed. Mr Gileng, for the third defendant, relied on the decision of Kapi DCJ in Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988-89] PNGLR 425 and other cases regarding summary dismissal of proceedings including Kiee Toap v The State (2004) N2731 in support of those propositions.

7. Having heard the explanation by Mrs Nonggorr, for the plaintiffs, as to the nature of the plaintiffs’ case and considered the affidavits filed on behalf of the plaintiffs, I cannot agree with Mr Gileng’s arguments. The plaintiffs are pinning their claims for relief on Part VII (compensation to landholders) of the Mining Act, which contains provisions aimed at settling the issue of compensation to landholders before mining activities commence. Section 155 (no entry until compensation agreed or determined) is a key provision. It states:

The holder of a tenement shall not enter onto or occupy any land, the subject of the tenement, for the purpose of mining, until—

(a) he has made an agreement with the landholders as to the amount, times and mode of compensation and the agreement has been registered in accordance with Section 156(6); or

(b) compensation has been determined in accordance with this Part and the holder of the tenement has paid or tendered such compensation as is then due.

8. The plaintiffs claim that the compensation agreement that has been registered and any determination of compensation are void as all agreements concerning the Ramu Nickel Project have been entered into with the Kurumbukari Landowners Association, which is not a “landholder” – it is just a group representing four clans who, like the plaintiffs and a number of other clans, are disputing claimants to the land. Furthermore, there has been no proper Warden’s hearing as to compensation as required by Section 157 of the Act.

9. The plaintiffs are asserting through the originating summons that all documents and agreements regarding the Ramu Nickel Project purporting to be signed on behalf of the customary landholders are void, on...