Reference persuant to Constitution Section 18(1); In the matter of: Sections 5, 11, 12, 14, 105 & 132 of the Land Act 1996 and Section 33(2) of the Land Registration Act 1981 and Section 34N of the Land Registration (Customary Land) Amendment Act 2009 and Land Groups Incorporation (Amendment) Act 2009; Reference by Igo Namona Oala & Oala Moi (2011) SC1128

• Jurisdiction: Papua New Guinea
• Citation: (2011) SC1128
• Date: 26 October 2011
• Docket Number: SCR 05 OF 2010
• Court: Supreme Court
• Year: 2011

Full Title: SCR 05 OF 2010; Reference persuant to Constitution Section 18(1); In the matter of: Sections 5, 11, 12, 14, 105 & 132 of the Land Act 1996 and Section 33(2) of the Land Registration Act 1981 and Section 34N of the Land Registration (Customary Land) Amendment Act 2009 and Land Groups Incorporation (Amendment) Act 2009; Reference by Igo Namona Oala & Oala Moi (2011) SC1128

Supreme Court: Davani, J

Judgment Delivered: 26 October 2011

Facts

The reference arises from proceedings in the National Court said to involve questions of constitutional interpretation. The State was given leave to intervene on the application of the Attorney General. Subsequently the Minister for Minerals and Energy sought leave to intervene and be represented by counsel instructed by him.

Held

1) When the State is a party in litigation it is only the Attorney General you can instruct on behalf of the State. The Solicitor General "shall" act as advocate for the State if instructed by the Attorney General or the Attorney General can instruct another lawyer: Attorney General Act s13(2), at [39];

2) Lawyers cannot appear for the State unless instructed by the Attorney General, at [59]; (obiter, at [48]):

3) (a) the discretion to grant leave to intervene is a very wide one;

b) the applicant must have a substantial interest in the issues to be decided in the case;

c) it can be either a direct interest, in that the decision of the Court could immediately and directly affect the interest of the applicant to maintain or abrogate some particular right, power or immunity, or;

d) the decision will bind another jurisdiction where the applicant is about to be a party in proceedings involving the same legal principles;

e) the applicant's position/submissions should contribute new or fuller aspects to the issues, and not simply be repetitive of the submission of someone who is already a party;

f) leave to intervene can be restricted to particular issues of interest to the applicant.

DECISION

26th October, 2011

1. DAVANI .J: Before me is a Reference under s.18(1) of the Constitution filed on 19th July, 2010 by Warner Shand Lawyers for Referrors Igo Namona Oala and Oala Moi (‘Referrors’). Both Igo Namona Oala and Oala Moi have posed some questions for interpretation by the Supreme Court. Igo Namona Oala is a member of the Iduata Gubarei No. 2 Clan of Boera Village and Oala Moi is a member of the Koke Gubarei No. 1 Clan of Boera Village, both within the Hiri District of Central Province, Papua New Guinea.

Questions for determination by the Supreme Court

2. Below are the questions for interpretation by the Supreme Court, which are;

a. Is s5 of the Land Act 1996 contrary to s53 of the Constitution and therefore void and of no effect?

b. Does an application under s11 and s102 of the Land Act 1996 take precedence over a declaration/notice by the Minister under s5 of the said Land Act and if so is a declaration under s5 of the said Land Act and subsequent grant of the State Lease over Portion 2458 a compulsory acquisition of rights of the applicants created under s11 and s102 of the said Land Act, and therefore:

i. is contrary to s53 of the Constitution?

ii. is harsh and oppressive under s41 of the Constitution?

iii. is a termination of the right to privacy of the Referrors and Peter Donigi as the designer of the Donigi Plan for registering customary land contrary to s49 of the Constitution?

iv. is discriminatory against the Referrors and contrary to s55 of the Constitution and therefore void and of no effect?

c. If the answer to either questions (a) or (b) above is in the affirmative, does it make all land titles issued by the Minister for Lands and Physical Planning over customary land in the exercise of his powers under s5 of the Land Act 1996 void and of no effect?

d. Are s5 and s132 of the Land Act 1996 laws that comply with Section 38 of the Constitution, and if not, are they void and of no effect?

e. Is s12 of the Land Act 1996 limited to interests in land that is subject of State Leases or does it also apply to customary land? If it applies to customary land, is it then:

i. contrary to s53 of the Constitution, and/or

ii. a law that does not comply with s38 of the Constitution; and

therefore void and of no effect?

f. Is s14 of the Land Act 1996 limited in interests in land that is subject of State Leases or does it also apply to customary land? If it applies to customary land, is it then:

i. contrary to s53 of the Constitution; and/or

ii. a law that does not comply with s38 of the Constitution, and

therefore void and of no effect?

g. Is s132 of the Land Act 1996 contrary to one or all of s32, s41, s49, s53 and s55 of the Constitution and therefore void and of no effect?

h. In so far as s33(2) of the Land Registration Act 1981 have the effect of terminating prior customary rights and interests of the Referrors in Portions 2457 and 2458 is it contrary to s53 of the Constitution and therefore void and of no effect?

i. Is s34N of the Land Registration (Customary Land) (Amendment) Act 2009 in so far as it terminates customary rights and interests in the subject customary land contrary to s38 and s53 of the Constitution and therefore void and of no effect?

j. Is Clause 12 of the Pro forma Constitution of Incorporated Land Groups provided for in the Seventh Schedule to the Land Groups Incorporation (Amendment) Act 2009 (Passed by Parliament but yet to be certified by the Speaker) which terminates the application of customary law, contrary to s38 and s53 of the Constitution and therefore void and of no effect?

The National Court proceedings from which the Reference arises

3. OS 485 of 2009 are the proceedings from which the Reference arises. In the National Court proceedings, Namona Oala and Moi Eno are both named as third and fourth plaintiffs. The first and second plaintiffs respectively are Boera Development Corporation Ltd and Apau Besena Company Ltd. Pepi Kimas as delegate of the Minister for Lands and the Independent State of Papua New Guinea are named as first and second defendants respectively.

4. In the National Court proceedings, the plaintiffs seek the following orders;

1. Leave to be granted to the Plaintiffs/Applicants for judicial review pursuant to O16 r3 of the National Court Rules.

2. A Declaration that s5 of the Land Act 1996, is contrary to one or all of s32, s41, s49, s53 and s55 of the National Constitution and is therefore unconstitutional.

3. A declaration that the Notice published by the First Defendant in the National Gazette No. G70 dated Friday 17 April 2009 over the land described in the First Schedule hereto under s5 of the Land Act 1996 is contrary to one or all of s32, s41, s49, s53, s55, s59, s60, s61 and s62 of the National Constitution and is therefore unconstitutional.

4. A Declaration that s132 of the Land Act 1996, is contrary to one or all of s32, s41, s49, s53 and s55 of the National Constitution and therefore unconstitutional.

5. A Declaration that s5 and s132 of the Land Act 1996 are not laws that comply with s38 of the Constitution.

6. A Declaration that the Plaintiffs, subject to the registration of their survey plan under the Survey Act 1969, are free to enter into any commercial arrangements or agreements with any third party developers or investors in respect to the said land.

7. Further and in the alternative:

a. A Declaration that the First Defendant lacks jurisdiction or power to publish a s5 Notice on receipt of the Application by the Plaintiffs for a lease and lease back under s11 and s102 of the Land Act 1996 over a larger portion of land described in the Second Schedule hereto and which encloses and contains within its boundaries the land described as Portion 2458C, the subject of the s5 Notice;

b. A Declaration that the First Defendant is stopped from making a s5 Notice in respect to land described as Portion 2458C on receipt of the s11 and s102 application for a leave and lease back by the Plaintiffs; and

8. An Order that the First and Second Defendants cause to be registered under the Survey Act 1969, the Survey Plan lodged by the Plaintiffs over the said subject land.

9. An Order that the First and Second Defendants cause to be issued to the First and Second Plaintiffs/Applicants a State Lease over the land described in the Second Schedule under s11 and s102 of the Land Act 1996.

10. An Order that the Defendants pay the costs of and incidental to these proceedings.

11. Such further and other Orders as the Honourable Court deems fit.”

5. On 13th October, 2009, the National Court gave leave to the Referrors to apply for judicial review.

6. On 19th October, 2009, the defendants in the Judicial Review proceedings filed an Application for Leave to Appeal against...