Ramu Nickel Limited v Honorable Dr Puka Temu MP, the Minister for Lands and Physical Planning and Jonathon Ninkama, Lindsay Gideon and Janis Tengeu as members of the Papua New Guinea Land Board and Ganglau Land Owner Company Limited and The Independent State of Papua New Guinea (2007) N3116

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 11 January 2007
• Court: National Court
• Citation: (2007) N3116
• Docket Number: OS NO 1064 2005
• Year: 2007
• Judgement Number: N3116

Full Title: OS NO 1064 2005; Ramu Nickel Limited v Honorable Dr Puka Temu MP, the Minister for Lands and Physical Planning and Jonathon Ninkama, Lindsay Gideon and Janis Tengeu as members of the Papua New Guinea Land Board and Ganglau Land Owner Company Limited and The Independent State of Papua New Guinea (2007) N3116

National Court: Lay J

Judgment Delivered: 11 January 2007

N3116

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 1064 2005

BETWEEN:

RAMU NICKEL LIMITED

Plaintiff

AND:

HONORABLE DR. PUKA TEMU MP, THE MINISTER FOR LANDS AND PHYSICAL PLANNING

First defendant

AND:

JONATHON NINKAMA, LINDSAY GIDEON AND JANIS TENGEU AS MEMBERS OF THE PAPUA NEW GUINEA LAND BOARD

Second defendant

AND:

GANGLAU LAND OWNER COMPANY LIMITED

Third defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth defendant

Waigani/Kokopo: Lay J

2006: 21 July

2007: 11 January

JUDICIAL REVIEW - Land Act s 12 and s 13 - compulsory acquisition for declared public purpose - whether land can be used for undeclared purpose.

JUDICIAL REVIEW- Mining Act s 41(2)(a) and s 120(3) - rights of mining tenement holder vis-à-vis rights of holder of subsequently issued State Lease.

JUDICIAL REVIEW - grant of relief - where error found, whether relief should be granted.

Cases Cited:

Papua New Guinea Cases

Application of Desmond Gigimat [1982] PNGLR 322 at 323.

Kekedo v Burns Philip (PNG) Ltd [1988-89] 122.

Kim Foon & Sons Pty Ltd v Minister for Finance and Planning (1993) N1464.

Mision Asiki v Manasupe Zurenuoc SC 797.

Steamships Trading Co Ltd. v Garamut Enterprises Ltd. (2000) N1959

Hi Lift Co. Pty Ltd v Miri Setae (2000)N2004

Overseas Cases

Merriku Council v Kerr [1928] CLR

Vaughan Construction Co Ltd v Attorney General (Nova Scotia) [1967] 384 F 2d 504;

Higginson v United States (1967) 380 F 2d 504.

Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680.

Council of Civil Service Unions v Minister for the Civil Service [1984] ALL ER 935 at 953.

O’Keefe v An Bord Pleanala 1993 1 I.R. 41.

Facts

The Plaintiffs were granted mining tenements of certain land part of which was the subject of free to hold title held by the State encumbered by an agricultural lease to Lutheran Mission. The Agricultural Lease was compulsorily acquired for the public purpose of mining for the Ramu Nickel Project pursuant to the powers granted by the Land Act. Subsequently the Second Defendant granted an agricultural lease to the Third Defendant over the land the subject of the compulsory acquisition.

Held

1. Having acquired the land compulsorily for mining purposes the State is bound to see that the land is used for that purpose alone, at least while it is required for that purpose;

2. The land is not available for leasing while it is the subject of the mining tenements ;

3. The Land Board failed to give proper weight to a relevant consideration, namely that the land was not available for leasing and failed to direct itself properly in law;

4. The grant of a State lease to the Third Defendant is quashed;

5. The Defendants are to pay the Plaintiffs costs.

Counsel

I shepherd, for the Plaintiff

No appearance for the Defendants

11 January, 2007

1. LAY, J.: The Plaintiff seeks judicial review of a decision of the Second Defendant made by Special Land Board meeting No. 01/2004 on 20 February 2004 to recommend to the First Defendant the grant of an agricultural lease over portions 109 and 110, milinch Pommern, fourmil Madang (“The Land”) to the Third Defendant.

2. The Plaintiff was granted leave for judicial review on 23 February 2006. The matter was set down for hearing on 24

[p1]

[p1] April 2006. It was not heard then and came before me on 10 July 2006 when the matter was stood over to the 12 July 2006 for hearing at 1:30 p.m. On that day on the application of the First, Second and Fourth Defendants made by J. Kumura the matter was stood over to 21 July 2006 at 9:30 a.m for hearing. At 11:30 a.m. on 21 July 2006, there was no appearance for the First, Second and Fourth Defendants. Mr. D. Lambu of the Solicitor General's office informed the Court that J. Kumura had gone out of Port Moresby on circuit. On the application of the Plaintiff the matter proceeded ex parte.

3. The Plaintiff is the registered proprietor, subject to a 31.5 percent equitable interest held by Orogen Minerals (Ramu) Limited, in the following mining tenements issued by the Department of Mining with respect to the Ramu Nickel Project (RNP):

1. Special Mining Lease No. 8 granted 26 July 2000 for 40 years.

2. Mining easement No. 78 granted 6 July 2000 for 40 years;

3. Mining easement No. 79 granted 26 July 2000 for 40 years;

4. Lease for mining purposes No. 43 dated 26 July 2000 for 40 years;

5. Lease for mining purposes No. 42 dated 26 July 2000 for 40 years;

6. Mining lease No. 149 granted 26 July 2000 for 20 years.

The Land is within these mining tenements.

4. Certificate of Title Volume 27 Folio 142 gave freehold title to the Land for the Administration of the Territory on 16 January 1942.

5. By agricultural lease Volume 65 Folio 26, the Fourth Defendant leased portion 109, Milinch Pommern, Fourmil Madang, to Lutheran Mission Madang, which subsequently became vested in Evangelical Lutheran Church of New Guinea Property Trust by virtue of the provisions of the Lutheran Mission New Guinea Repeal Act 1976.

6. By gazettal G51 dated 28 March 2002, the First Defendant's delegate gave notice that, pursuant to s.13 (6) of the Land Act, s.13 (1) to 13(5) of the Land Act (notice to treat procedure) did not apply with respect to portion 109 and that the land contained in Agricultural Lease Volume 65 Folio 26 was required by the Fourth Defendant for the mining purposes of the Ramu Nickel Project (“RNP”). The gazette notice was in the following terms:

"I Guan K. Zurenouc, OBE,. A delegate of the Minister for Lands, by virtue of the powers conferred by section 13(6) of the Land Act 1996, as amended to date and all other powers me enabling, hereby declare that s.13(1)-(5) of the Land Act 1996, shall not apply to and in respect of the land specified in the Schedule hereto and the requirement for Notice to Treat be and is hereby dispensed for the following special reasons:-

1. That the land is required for Mining Purposes of the Ramu Nickel Project.

2. That the original traditional landowners of the land have requested for urgent action.

3. The urgency for the State to make land available for the Ramu Nickel Project as required under Mining Development Contract with Developers.

4. Prevention of dealings inconsistent with the terms and conditions of the agricultural lease now held over the land."

Scheduled

An agricultural lease of the land known as Mindiri being the whole of portion 109, Milinch of Pommern, Fourmil of Madang containing an area of 81.5 hectares be the same a little more or less and being the whole of the land contained in State Lease Volume 65, Folio 26. Department of Lands file reference: 1329/0109. Dated this 20th day of March 2002."

7. By notice in the same Gazette the land was compulsorily acquired.

8. By gazettal notice G63 dated 8 June 2004, the Second Defendant gave notice that the Third Defendant had successfully applied for and was granted an Agricultural Lease over the Land at Special Land Board Meeting No. 01/2004.

9. The Department of Justice and Attorney General requested the Secretary, Department of Lands and Physical Planning to cancel the issue of the agricultural lease to the Third Defendant, but this has not occurred.

Submissions

10. The Plaintiff submits that the Second Defendant ignored:

1. Or did not give any consideration to the fact that the State had already acquired the land by compulsory acquisition on the 28th of March 2002.

2. The claims of other land owners continue and the Board ought to have known the traditional owners were also interest in the land:

3. The Plaintiff had priority over any other person with respect to ownership of the land within the mining tenements pursuant to section 120 of the Mining Act;

4. By issuing a lease, presumably pursuant to s.102 of the Land Act, the plaintiff and any other land groups were denied natural justice in that they were not given the opportunity to tender or object.

The law

11. On the hearing of a judicial review the court is not necessarily concerned with the merits of the decision but with the decision making process: Application of Demas Gigimat [1992} PNGLR 322 at 323 (Woods J). Judicial review may be available where there is a lack of power, there is an error of law on the face of the record, there is a breach of the rules of natural justice, or in breach of the “Wednesbury principles” (see Associated Provincial Picture House v Wednesbury Corporation [1974] 2 ALL ER 680) a power is exercised in an unreasonable manner, or a decision is made which no reasonable tribunal could have reached: See Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 953 per Roskill LJ; Kekedo v Burns Philip (PNG) Ltd [1988-89] 122 at 124 per Kapi DCJ.. This latter consideration is often referred to as “Wednesbury unreasonableness”. The principle is summarized by Doherty J in Kim Foon & Sons Pty Ltd v Minister for Finance and Planning N1464 (1996) as follows:-

(a) it must be a real exercise of the discretion;

(b) the body must have regard to matters...