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
• Court: National Court
• Date: 11 January 2007
• Citation: (2007) N3116
• Docket Number: OS NO 1064 2005
• Year: 2007

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

JUDICIAL REVIEW - Land Act s12 and s13 - compulsory acquisition for declared public purpose - whether land can be used for undeclared purpose.

JUDICIAL REVIEW- Mining Act s41(2)(a) and s120(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 Philp (PNG) Ltd [1988-89] 122; Kim Foon & Sons Pty Ltd v Minister for Finance and Planning (1993) N1464; Mision Asiki v Manasupe Zurenuoc SC797; 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.

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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

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i[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 g

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one out of Port Moresby on circuit. On the application of the Plaintiff the matter proceeded ex parte.

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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...