Raphael Loowa, Andrew Kaliem, Steven Wisau & Titus O’Rou in their capacities as landowners and as the four landowner representative of ILG of Aitape Lumi Consolidated Forest Management Area (FMA) v Kanawi Pouru, The Chairman and Team Leader of the State Negotiation Team of the National Forest Board and Valentine Kambori, The Chairman of the National Forest Board and Joseph Sungi, the Chairman of the Provincial Forest Management Committee and The Independent State of Papua New Guinea and Samas Limited (2009) N4029

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 18 September 2009
• Court: National Court
• Citation: (2009) N4029
• Docket Number: OS NO. 322 OF 2007 (JR)
• Year: 2009
• Judgement Number: N4029

Full Title: OS NO. 322 OF 2007 (JR); Raphael Loowa, Andrew Kaliem, Steven Wisau & Titus O’Rou in their capacities as landowners and as the four landowner representative of ILG of Aitape Lumi Consolidated Forest Management Area (FMA) v Kanawi Pouru, The Chairman and Team Leader of the State Negotiation Team of the National Forest Board and Valentine Kambori, The Chairman of the National Forest Board and Joseph Sungi, the Chairman of the Provincial Forest Management Committee and The Independent State of Papua New Guinea and Samas Limited (2009) N4029

National Court: Injia, CJ

Judgment Delivered: 18 September 2009

N4029

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 322 OF 2007 (JR)

Between:

Raphael Loowa, Andrew Kaliem, Steven Wisau & Titus O’Rou in their capacities as landowners and as the four landowner representative of ILG of Aitape Lumi Consolidated Forest Management Area (FMA)

Plaintiffs

And:

Kanawi Pouru, The Chairman and Team Leader of the State Negotiation Team of the National Forest Board

First Defendant

And:

Valentine Kambori, The Chairman of the National Forest Board

Second Defendant

And:

Joseph Sungi, the Chairman of the Provincial Forest Management Committee

Third Defendant

And:

The Independent State of Papua New Guinea

Fourth Defendant

And:

Samas Limited

Fifth Defendant

Waigani: Injia, CJ

2009: 18th September

JUDICIAL REVIEW – review of procedures employed in negotiations for timber permit - main relief sought in application is an order in the nature of certiorari to quash decision of NFAB to include fifth defendant as preferred proponent of project - Excess of power (ultra vires), Error of law and abuse of power/unreasonableness of decision as major grounds of review – NFAB’s decisions reached following procedures set out under Forestry Act - grounds of review relating to issue of abuse of power and unreasonableness dismissed – s30, 67 – 70 Forestry Act, Order 16 r 1 & 5 National Court Rules.

Cases Cited:

Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122

Counsel:

P Mambei, for plaintiffs

A MacDonald, for first & second defendants

K Iduhu, for the fifth defendant

18th September, 2009

1. INJIA CJ: This is an application for judicial review made under O 16 of the National Court Rules (NCR). The application relates to the procedures employed in negotiations for a timber permit over the Aitape Lumi Consolidated Forest Management Area (FMA) which is situated in the Sandaun Province. The negotiations led to grant of Timber Permit to the fifth Respondent (Samas Ltd) by the State which is not the subject of this review proceeding. The application is contested by the first, second and fifth defendants.

2. Leave to apply for judicial review was granted on 8th August 2007. A Notice of Motion instituting the application for review was filed on 17th August 2007.

3. The application is supported by the affidavit of Mr Raphael Loowa sworn and filed on 12th June 2007 which is found on pages 40 – 82 of the Review Book ( RB 40-82), Supplementary affidavit of Mr Raphael Loowa sworn and filed on 12th June 2007 (RB 83-87), affidavit of Mr Ignas Mambei sworn and filed on 2nd July 2007 (RB 88-96), affidavit of Steven Wison Wisou sworn and filed on 18th July 2007 (RB 97-111)and a further affidavit of Mr Raphael Loowa sworn and filed on 25th September 2007 (RB 112-309).

4. The first and second respondents rely on the affidavits of Mr Kanawi Pouru sworn on 16th and filed on 18th June 2007 (RB 310-325), Supplementary affidavit of Mr Kanawi Pouru sworn and filed on 18th June 2007 (RB 326-332), Mr David Ipasi sworn and filed on 18th June 2007 (RB 333-335) and affidavit of Mr Kanawi Pouru sworn and filed on 28th September 2007 (RB 336-393).

5. The fifth respondent relies on the affidavit of Mr Yong Hin Siong sworn and filed on a date unknown in September 2007 (RB 394-411).

6. Counsel representing parties made oral submissions between December

2008 and February 2009 Counsel agreed to file written submissions for my consideration which they have done. I have considered them and I will deal with them in the course of my submissions. Counsel representing parties made oral submissions between December 2008 and February 2009 Counsel agreed to file written submissions for my consideration which they have done. I have considered them and I will deal with them in the course of my submissions.

Relief sought and Grounds

7. The relief sought as pleaded in the Amended Statement in Support filed on 11th July 2007 (Statement) which are repeated in the Notice of Motion filed on 17th August 2007 under O 16 r 5 are as follows:

“(1) An order that the second decision of the National Forest Board on the 03rd and 08th May 2007 to include Samas Limited as a third proponent for negotiations is null and void ab initio contrary to Forest Guidelines on issuing Timber Permits or evaluation procedures as set out under Sections 67, 68, 69 and 70 of the Forestry (Amendment) Act 1993 and further the decision was made without consent of the Land owners and the National Forest Board acted ultra vires the functions of the Provincial Forest Management Committee under Section 30 of the Act.

(2) An order in the nature of certiorari to bring to this Honourable Court the Second Decision of the National Forest Board dated 08th May 2007 and quash it.

(3) An order in the nature of mandamus to direct the Board to enforce its earlier decision dated 29th March 2007 to accept only the two (2) proponents namely Aitape Maju Ltd and Vanimo Forest Products Ltd to enter into negotiations with the State excluding the Samas Limited and to be recommended for the issue of the Timber Permit.

(4) An order that Samas Limited be removed as a short listed proponent to enter into negotiations with the State and if it had entered into negotiations then it must not be recommended for the issue of timber permit.

(5) An order that the Third Defendant be restrained from implementing the second Decision of the National Forest Board dated 8th May 2007.

(6) Alternate orders that the Minister’s and NFB recommendations to include a third proponent be referred back to the Provincial Forest Management Committee to evaluate and decide on the merits which of the rejected proponents shall be the third proponent.”

8. The grounds upon which the relief is sought as pleaded in the Amended Statement are as follows:

“(1) That the second decision of the First and Second Defendants

particularly the National Forest Board dated 08th May 2007 as

indicated in a letter dated 16th May 2007 is illegal and null and void ab initio as it contravenes evaluation processes and procedures set out under Sections 67, 69, and 70 of the Forestry Act and further contradicts its earlier decision in Meeting No. 132 dated 26th March

2007 to accept two (2) proponents namely Aitape Maju Ltd and Forest Products Ltd as the only two proponents to enter into negotiations.

(2) The Second Defendant acted ultra vires the functions of the Provincial Forest Management Committee (Third Defendant) as provided by Sections 30, 67, 69 and 70 of the Forestry Act to make evaluation and assessment of project proponents or bidders in consultation with landowners and National Forest Services staff in which a decision has already been reached on the 27th March 2007 by the Second Defendant.

(3) The Second Defendant’s decision is irrational and improper as it is not in the best interest of the landowners and it was not consented and also not consented to it by the Provincial Forest Management Committee of which the Third Defendant represents.”

Facts

9. The evidence before me in the form of affidavits is not contested. From this evidence I set out the undisputed facts of the case as I consider to be relevant to decide the issues raised by the grounds of review.

10. In mid 2006 the NFAB tendered the project. Project Proposals were submitted by various project developers to the NFAB. A total of eleven (11) developer companies submitted proposals. Amongst them were Aitape Maju Ltd, Samas Ltd and Vanimo Forest Products Ltd. Between February – June 2007, the PFMC convened meetings to deliberate on the proposals. The NFAB referred the project proposals to the PFMC for its consideration and recommendation to the NFAB.

11. The initial meetings of the PFMC were held on 15th, 19th and 20th February 2007. On the 15th February 2007, the PFMC by resolution No. 08/07 resolved to “recommend(s) Aitape Maju as the most preferred proponent followed by Vanimo Forest Products Ltd to undertake further negotiations in the view of negotiating a Project Agreement for the Aitape Lumi Consolidated FMA project.” On 26th February 2007 the PFMC conveyed its recommendation to the NFAB by way of a formal submission. The submission was signed by Mr Joseph Fungi as Chairman (Administrator of Sandaun Province) and Mr Paul Anton (Provincial Forest Officer) as member. The submission was accompanied by other relevant documents including the Minutes of the PFMC Meetings of 15th, 19th and 20th February.

12. A Critical Review of the PMFC Meetings Minutes done by the Minster for Forests are set out in annexure A2 of Mr Pouru’s affidavit sworn on 28th September 2007. It sets out excerpts of the Minutes of the meetings of 19th and 20th February. These excerpts show that certain members of the PFMC expressed concern over the PFMA’s...