Barrick (Niugini) Limited v MT Bee Akom HTL Association Incorporated and Others

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 05 December 2022
• Neutral Citation: N10055
• Citation: N10055, 2022-12-05
• Counsel: W Mininga, for the Plaintiff,A Token, for the Defendants
• Hearing Date: 01 December 2022,05 December 2022
• Docket Number: OS NO. 56 OF 2019 (COMM)
• Court: National Court

N10055

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 56 OF 2019 (COMM)

Between:

Barrick (Niugini) Limited

Plaintiff

v.

MT Bee Akom HTL Association Incorporated

First Defendant

and

Hari Haralu, Patrick Pawa, Timothy Hewe Balobe, Pastor Gershon Ekari & Their Agents, Supporters, Relatives, and Family Members

Second Defendants

Waigani: Anis J

2022: 1^st & 5^th December

DECLARATORY RELIEF — declaratory relief — declaration premised on assertion of legal rights or interests in 2 mining leases — Special Mining Lease and Special Mining Easement issued under the Mining Act 1992 — preliminary consideration — whether asserted rights continue to exist under the leases as alleged — whether material facts have changed — whether there was fundamental flaw in the material facts — whether burden of proof should shift to the defendants — whether plaintiff has provided sufficient evidence to maintain its claim against the defendants to disprove — whether pleaded primary relief attainable — consideration — decision

Cases cited:

Barrick (Niugini) Ltd v Nekitel (2020) N8409

Barrick (Niugini) Ltd v Nekitel (2020) N8791

Brian Josiah v Stephen Raphael (2018) SC1665

Soa Gabi & The State v. Kusap Nate and Ors (2006) N4020

Counsel:

W Mininga, for the Plaintiff

A Token, for the Defendants

Bradshaw: Lawyer for the Plaintiff

Public Solicitor's office: Lawyer for the Defendants

DECISION

5^th December, 2022

1. Anis J: The trial for this matter proceeded without cross-examination of witnesses on 7 November 2022. All the evidence were tendered by consent of the parties. Presentation of closing arguments was adjourned to 1:30pm on 1 December 2022. I heard closing arguments from both counsel before I reserved my ruling to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The originating summons was filed on 5 February 2019 (OS). At that time, the plaintiff was the registered holder of 2 mining tenements or leases, namely, Special Mining Lease No. 1 (SML1) and Special Mining Easement No. 1 (SME1). SML1 and SME1 (the 2 tenements) were issued to the plaintiff on 12 May 1989 and 18 February 1991, respectively, under the Mining Act 1992 (Mining Act).

4. At the material time, the plaintiff was the Manager of the Porgera Joint Venture which operated the Porgera Gold Mine. I referred to the plaintiff's role in past tense for the reasons as I will state herein.

COMMON GROUND

5. At the commencement of closing arguments, I referred counsel to the pleaded relief in the OS. For clarity, I set them out herein:

1. A declaration that as the holder of Porgera Special Mining Lease No.1 (SML) and Special Mining Easement No. 1 (SME), the Plaintiff is entitled under section 83(d) and 84 of the Mining Act 1992, to exclusive occupancy of the land subject of SME for construction and operation of Power Transmission Lines (PTL) and Power Transmission Towers (PTT) in respect of which the SME was granted.

2. A permanent injunction restraining the Defendants, their associates, agents, servants, supporters or relatives from trespassing onto the area subject of the SME upon which the PTT are located from Hides Gas Project, Hela Province to Porgera Mine Site, Enga Province or from damaging any of its facilities, equipment and properties.

3. A permanent injunction restraining the Defendants, their agents, servants, relatives, and family members from interfering with the Plaintiff's operations of the PTL and PTT in the area, the subject of the SME.

4. A permanent injunction restraining the Defendants and their agents, supporters, and relatives from destroying or attempting to destroy the Plaintiff's properties or interfering with its operations subject of the SME.

5. A permanent injunction restraining the Defendants and their agents, servants and relatives from intimidating or assaulting or otherwise interfering with servants, or agents of the Plaintiff carrying operations and undertaking works on land, the subject of the SME.

……

(Underlining mine)

6. I then raised a preliminary point with counsel for the plaintiff. I asked counsel whether the plaintiff was still the registered tenement holder of SML1. I also posed the same question to counsel for the defendant. I informed both counsel that I required assistance from them as officers of the Court, to assist me better understand the situation on the ground or in regard to the status quo of SML1 and of the plaintiff's current interest in the Porgera Gold Mine. Both counsel made submissions in that regard.

7. In summary, the parties concede that the plaintiff's SML1 expired on 15 August 2019. They also concede that the plaintiff had since applied for an extension of SML1 over the Porgera Gold Mine area. The parties say that this company Kumul Mineral Holdings Ltd (KMHL) also applied for a special mining lease over the same area. The parties submit that the State rejected the plaintiff's application. The parties acknowledge that the plaintiff then commenced a judicial review proceeding (first JR) in the National Court to challenge the decision of the State in rejecting the plaintiff's application for extension of its expired SML1. The parties concede that whilst the first JR was pending, the State issued a special mining lease (SML2) to KMHL on 25 August 2020. The parties further concede that the plaintiff has also filed another judicial review proceeding (second JR) against the State, that is, challenging its decision to issue SML2 to KMHL. At this juncture, the parties concede that the proceedings are pending. The parties also concede or understand that the plaintiff and the stake holders including the State are presently negotiating a possible settlement outcome.

8. The above are the material facts which give clarity to the status of the 2 tenements. And the plaintiff, by this proceeding, is...