Toale Hongiri Incorporated Land Group and Tiasapi Incorporated Land Group and Souwolo Incorporated Land Group and Souwolo Haporopake Incorporated Land Group v Wolotou Incorporated Land Group and The Independent State of Papua New Guinea and Rendle Rimua in his capacity as Acting Secretary of Petroleum and Energy and Micah Pitpit Commissioner Land Titles Commission and Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group (2012) SC1201

• Jurisdiction: Papua New Guinea
• Judge: Cannings, J; Sawong, J; Collier, J
• Judgment Date: 01 November 2012
• Court: Supreme Court
• Citation: (2012) SC1201
• Docket Number: SCA NO 101 0F 2011
• Year: 2012
• Judgement Number: SC1201

Full Title: SCA NO 101 0F 2011; Toale Hongiri Incorporated Land Group and Tiasapi Incorporated Land Group and Souwolo Incorporated Land Group and Souwolo Haporopake Incorporated Land Group v Wolotou Incorporated Land Group and The Independent State of Papua New Guinea and Rendle Rimua in his capacity as Acting Secretary of Petroleum and Energy and Micah Pitpit Commissioner Land Titles Commission and Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group (2012) SC1201

Supreme Court: Cannings, J; Sawong, J; Collier, J

Judgment Delivered: 1 November 2012

SC1201

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 101 0F 2011

TOALE HONGIRI INCORPORATED LAND GROUP

First Appellant

TIASAPI INCORPORATED LAND GROUP

Second Appellant

SOUWOLO INCORPORATED LAND GROUP

Third Appellant

SOUWOLO HAPOROPAKE INCORPORATED LAND GROUP

Fourth Appellant

AND

WOLOTOU INCORPORATED LAND GROUP

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

RENDLE RIMUA

IN HIS CAPACITY AS ACTING SECRETARY

OF PETROLEUM AND ENERGY

Third Respondent

MICAH PITPIT

COMMISSIONER LAND TITLES COMMISSION

Fourth Respondent

LUHALIPU INCORPORATED LAND GROUP

Fifth Respondent

ASE TIPURUPEKE INCORPORATED LAND GROUP

Sixth Respondent

Waigani: Cannings, J; Sawong, J; Collier, J

2012: 29 October, 1 November

CIVIL PRACTICE AND PROCEDURE – Notices of Objection to Competency of Appeal – parties engaged in alternative dispute resolution – “draft consent orders” presented to Court – orders made by Court – whether orders were “consent orders” – whether parties to “draft consent orders” parties to National Court proceedings – whether Court’s appellate jurisdiction validly invoked – whether decision below interlocutory – “question of fact”.

A respondent to an appeal objected to the competency of the appeal on the grounds that:

· the orders relevant to the appeal were “consent” Orders;

· the decision of the primary Judge was an interlocutory decision and leave to appeal had not been sought;

· the appellants lacked standing;

· some grounds of appeal involved questions of fact and leave to appeal had not been sought;

· the appellants, under terms of reference for an alternative dispute resolution process relevant to the matter, were required to exhaust available alternative avenues before appealing; and

· procedural requirements had not been complied with.

Held:

(1) The relevant Orders were not consent orders and therefore Section 14(2) of the Supreme Court Act does not bar the appeal.

(2) Leave was not required to appeal as the orders are not interlocutory (Section 14(3) Supreme Court Act) and the grounds of appeal concern questions of law and/or questions of mixed fact and law (Section 14(1) Supreme Court Act).

(3) The appellants have an interest in the subject matter of the appeal and therefore have standing.

(4) As the Orders were not consent orders, the terms of reference relating to the alternative dispute resolution process do not prevent the appellants from appealing to the Supreme Court.

(5) The claims relating to procedural requirements are unsubstantiated or lack merit.

(6) Remarks: if at least one ground of appeal has substance, an objection to competency should not succeed.

Cases cited:

Coca Cola Amatil (PNG) Ltd v Yanda (unreported, Supreme Court of Papua New Guinea, 31 August 2012; Lenalia, Kawi and Logan JJ)

Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262

Jeffrey Turia v Gabriel Nelson (2008) SC949

Simon Mali v Independent State of Papua New Guinea (2002) SC690

Talibe Hegele v Tony Kila (2011) SC1124

Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Counsel:

Mr J Haiara, for the First and Second Appellants

Mr M Miva, for the First Respondent

Mr P Ame, for the Fifth and Sixth Respondents

1. BY THE COURT: Before the Court are two Notices of Objection to Competency of an appeal (“Notices of Objection to Competency”) against orders of Kandakasi J made on 24 August 2011 and 13 September 2011 in National Court proceedings WS No 1177 of 2007. The appeal was commenced by Toale Hongiri Incorporated Land Group (first appellant), Tiasapi Incorporated Land Group (second appellant), Souwolo Incorporated Land Group (third appellant) and Souwolo Haporopake Incorporated Land Group (fourth appellant). The Notices of Objection to Competency have been filed by Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group, respectively the fifth and sixth respondents to the relevant appeal.

2. That there are a number of Notices of Objection to Competency which the Court is required to consider, rather than merely one, is an aspect of this case which is unusual. Another unusual aspect of this case is that the orders made by his Honour on 24 August 2011 against which the appellants have appealed were made on the basis of “draft consent orders” presented to the Court by the fifth and sixth respondents. On 13 September 2011 his Honour declined to either set aside the Orders of 24 August 2011 or stay the operation of those Orders.

3. It is useful to set out the background to the current proceedings before turning to consideration of the grounds raised in the Notices of Objection to Competency.

Background

4. The Orders made by his Honour on 24 August 2011 appeared to finalise the results of alternative dispute resolution (ADR) of landownership disputes concerning the Gobe Oil Fields. It seems to be common ground that a land dispute first arose in Gobe with the discovery of the Gobe Oil Fields in the Southern Highlands Province and Gulf Province in 1991. Several Land Titles Commission hearings were held in relation to the dispute, and by consensus the parties entered into a benefit sharing agreement called “the Lae-Inter Agreement”. Thereafter a Ministerial Determination was made, whereby the disputants received interim beneficiary rights and an entitlement to receive royalty and equity. Those rights were conferred on the basis that they would lapse at the commencement of the landownership determination process. As it transpired, all thirty-two Incorporated Land Groups (“ILGs”) with an interest in the dispute opted for resolution of land ownership by way of ADR. Terms of Reference (“TOR”) were developed in 2009 to facilitate that process.

5. On 23 August 2011, Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group presented “draft consent orders” to the Court for endorsement. The draft consent orders were as follows:

1. The customary landowners shown in Schedule 1 of this Order recognize each other traditional land boundaries before the discovery of Oil and Gas in the Gobe Oil Development Areas known as PDL 3 and PDL 4 and the facilities area.

2. The customary landowners in Schedule 1 acknowledge the Souwolo and Wolotou clans as clans having land in the PDL 3 and PDL 4 respectively and that as above.

3. That the Department of Petroleum and Energy, Mineral Resources Development Company (MRDC) and other relevant Governmental Institutions recognize only the clans in Schedule 1 as customary land owning group in the Gobe PDL 3 and PDL 4 and the facilities area.

4. That for the purpose of benefit sharing, the landowners in Schedule 1 of this Order recognize their beneficiaries and negotiate benefit sharing.

5. That parties be given 7 days to consolidate, agree and present to ADR Court the Benefit Sharing Agreements (BSA) by parties named in Schedule 1, inclusive of Souwolo and Wolotou ILG (Clans) and their beneficiaries.

6. That parties agree that all royalty and equity monies payable to the landowners however outstanding claims due held by the State and its agents, particularly Department of Petroleum and Energy (DPE) and Mineral Resources Development Company to be paid into the National Court Trust Account pending further Orders.

7. That the majority of principle landowners and their beneficiaries agree for 20% of all royalty and equity monies to be set aside until disputing parties settle their disputes. And 80% of the monies be made available for disbursement to the agreed parties according to the BSA.

8. Matter returns to the Court at 9.30 am on 13 September 2011 with BSA.

SCHEDULE 1

(1) Ase Tipurupeke Clan

(2) Moloko Tipurupeke Clan

(3) Haukerake Tipurupeke Clan

(4) Luhalipu Clan

(5) Yenidou Bogasi Clan

(6) Imawe Kewa Clan

(7) Muti Clan

(8) Isaweri Makof Clan

(9) Makena Clan

(10) Mukard Dupan Clan

(11) Museneri Clan

(12) Afu Clan

(13) Wafi Clan

(14) Lu’u Clan

SCHEDULE 2

(1) Souwolo Clan

(2) Wolotou Clan

6. The matter was stood over overnight and returned to Court on the morning of 24 August 2011. After an interchange between his Honour and Mr Ame (for the applicants presenting the draft consent orders, namely Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group), Mr Palma for the Department of Petroleum and Energy, and Mr Uyassi for the Waiyemi clan, his Honour made “consent” Orders in the same terms as those presented. It is not in dispute that:

· At the time of those orders, none of the customary landowners identified in Schedule 1 were parties to the...