SCR No 3 of 1989; Re Forestry (Private Dealings) Act (Ch217); Special Reference Pursuant to the Constitution s19 Reference by the Lapan Assembly of the Manus Provincial Government

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Hinchliffe J
• Judgment Date: 06 June 1990
• Citation: [1990] PNGLR 222
• Court: Supreme Court
• Year: 1990
• Judgement Number: SC384

Supreme Court: Kapi DCJ, Los J, Hinchliffe J

Judgment Delivered: 6 June 1990

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 3 OF 1989 RE FORESTRY (PRIVATE DEALINGS) ACT (CH NO 217) SPECIAL REFERENCE PURSUANT TO THE CONSTITUTION SECTION 19 REFERENCE BY THE LAPAN ASSEMBLY OF THE MANUS PROVINCIAL GOVERNMENT

Waigani

Kapi DCJ Los Hinchliffe JJ

26 February 1990

6 June 1990

STATUTES — Validity — Forestry (Private Dealings) Act — Statute regulating sale of timber by statutory owners — Appointment of agents — Power of agent to dispose of property rights — Whether powers in breach of protection for unjust deprivation of property — Constitution, s 53 — Forestry (Private Dealings) Act (Ch No 217), s 7.

CONSTITUTIONAL LAW — Special rights — Protection from unjust deprivation of property — Whether applicable to statutory rights regulating sale of customary timber — No compulsory acquisition — Constitution, s 53 -Forestry (Private Dealings) Act (Ch No 217), s 7.

The Constitution, s 53, precludes the compulsory taking or possession of any property, interest in or right over property except in accordance with an Organic Law or an Act or Parliament.

The Forestry (Private Dealings) Act (Ch No 217) regulates the sale of timber of customary owners and, inter alia, provides for the manner in which customary owners may be ascertained and the appointment of agents to represent the interests of customary owners in, for example, acquiring and selling rights to timber.

Held

The provisions of the Forestry (Private Dealings) Act (Ch No 217) are validly enacted: they do not offend the provisions of s 53 of the Constitution because they do not deal with compulsory acquisition or possession of any property.

Cases Cited

Ready Mixed Concrete Pty Ltd v The Independent State of Papua New Guinea [1981] PNGLR 396.

Supreme Court Reference

This was a special reference to the Supreme Court pursuant to s 19 of the Constitution. The question referred is set out below.

Counsel

R Taylor, for the referror.

J Baker, for the negative case.

S Sitapai, by leave, for the intervenor.

Cur adv vult

6 June 1990

KAPI DCJ LOS HINCHLIFFE JJ: This is a reference pursuant to s 19 of the Constitution. The following questions have been referred for consideration:

1. Paragraph (a) of s 7 (5) of the Forestry (Private Dealings) Act (Ch No 217) allows for the appointment of an agent who has power to execute certain instruments, and do all other things necessary or convenient, for effecting the sale or disposal of property rights on behalf of the owners of those rights. Is this provision invalid for the reason that it breaches s 53 of the Constitution in that it empowers the agent to so act without having obtained authorisation from the owners on whose behalf he acts?

2. Section 7 (6) of the Forestry (Private Dealings) Act (Ch No 217) provides that certain instruments executed, or acts, matter or things done, by an agent appointed under s 7 (5) of the Act in relation to the sale or disposal of property rights are as valid and effectual as if done by all the owners of the rights. Is...