Barrick (Niugini) Ltd v Stanley Nekital in his capacity as the Registrar of Tenements and Mining Advisory Council and Mineral Resources Authority and Hon Johnson Tuke, MP as Minister for Mining and Hon James Marape, MP as Chairman and representing all other members of the National Executive Council and the Independent State of Papua New Guinea and Mineral Resources Enga Limited and Hon Davis Steven, MP as Attorney General and nominal defendant on behalf of the Head of State (2020) N8409

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ,
• Judgment Date: 05 June 2020
• Court: National Court
• Citation: (2020) N8409
• Docket Number: OS (JR) No 5 of 2020
• Year: 2020
• Judgement Number: N8409

Full Title: OS (JR) No 5 of 2020; Barrick (Niugini) Ltd v Stanley Nekital in his capacity as the Registrar of Tenements and Mining Advisory Council and Mineral Resources Authority and Hon Johnson Tuke, MP as Minister for Mining and Hon James Marape, MP as Chairman and representing all other members of the National Executive Council and the Independent State of Papua New Guinea and Mineral Resources Enga Limited and Hon Davis Steven, MP as Attorney General and nominal defendant on behalf of the Head of State (2020) N8409

National Court: Kandakasi DCJ,

Judgment Delivered: 5 June 2020

N8409

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 05 OF 2020

BARRICK (NIUGINI) LIMITED

Plaintiff

AND

STANLEY NEKITAL in his capacity as the Registrar of Tenements

First Defendant

AND

MINING ADVISORY COUNCIL

Second Defendant

AND

MINERAL RESOURCES AUTHORITY

Third Defendant

AND

HON. JOHNSON TUKE, MP as MINISTER FOR MINING

Fourth Defendant

AND

HON. JAMES MARAPE, MP as Chairman and representing all other members of the NATIONAL EXECUTIVE COUNCIL

Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

AND

MINERAL RESOURCES ENGA LIMITED

Seventh Defendant

AND

HON. DAVIS STEVEN, MP as Attorney General and nominal defendant on behalf of the Head of State

Eight Defendant

Waigani: Kandakasi DCJ,

2020: 12th May

2020: 05th June

JUDICIAL REVIEW – Application for leave for review of National Executive Council decision –standing – applicant has standing as it is directly affected by the decision - Grounds for – Breach of natural justice and procedural fairness, failure to take into account relevant considerations, breach of statutorily prescribed process, bad faith unreasonableness in the Wednesbury sense – only ground made out - failure to disclose copy of relevant decision – effect of –implies lack of good reason for decision – leave granted – decision maker to provide copy of decision with reasons for the decision.

Facts

At the expiry of a mining lease and mining development agreement between the Plaintiff and the State, the National Executive Council (NEC) decided not to renew the lease. The NEC did not provide the Plaintiff with a copy of the decision with the reasons for its decision. Aggrieved by that decision, the Plaintiff applied for judicial review of the relevant decision. It argued that the NEC breached the principles of natural justice, statutorily prescribed procedure and it failed to accord the Plaintiff procedural fairness, take into account relevant factors, the decision was arrived in bad faith and that the decision is not reasonable in the Wednesbury sense. In response, the State argued, the Plaintiff lacks the necessary standing to bring the application and, in any case, the Plaintiff has not made out the basis for its application.

Held:

1. The Plaintiff has standing as the operator of the Porgera Gold Mine and holder of the relevant Special Mining Lease and one who is directly affected by the decision sought to be reviewed.

2. It is trite law that all decision makers especially those in the public sector have an obligation to give reasons for their decision and produce a copy of the decision and the reasons for that decision in Court. If reasons are not given, or if they are given but are not clear or insufficient, the inference is that there are no good reasons for the decision.

3. The failure by the decision makers in this case to provide copies of the decisions with its reasons for the decision lends support to the Plaintiff’s claim that the decision makers failed to take into account relevant factors, the decision was arrived at in bad faith and the decision is not reasonable in the Wednesbury sense.

4. In a judicial review proceeding, what the parties and the Court should be focused on is requiring the parties to plead succinctly and clearly a statement of the relevant facts disclosing at least one or more of the basis or grounds upon which judicial review can be granted and as long as a valid ground for judicial review is pleaded, that should be sufficient. No knit-pick on the pleadings should be encouraged and permitted to avoid unnecessary lawyering, delay and increased costs.

5. Mining is an activity that is regulated and controlled by the Mining Act 1992 and as such the Plaintiff was obliged to demonstrate which of the provisions, including its right to be further heard after a mining wardens hearing has been breached. This the Plaintiff failed to do and the Court held that there was no breach of the principles of natural justice.

Cases Cited:

Papua New Guinea Cases

Leto Darius v. The Commissioner of Police (2001) N2046.

GR Logging Ltd v David Dotaona (2018) SC1690.

John Wanis Wek v. Sobol Trading Ltd (2016) SC1535.

Alois Kingsly Golu v. NEC (2011) N4425.

Jim Kas v. Sevua (2000) N2010.

Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1.

NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70

Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216.

National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139.

Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959.

Aquila Sampson v. NEC (2019) SC1880.

David Kabomyap Allolim v Biul Kirokim (2018) SC1735.

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.

Hobai Haro v. The State (2019) SC1841.

Mission Asiki v. Manasupe Zurenoc & Ors (2005) SC797.

Agriculture Resources Technology Ltd v. Ray-Paul (2017) N6937.

Gire Gire Estates Ltd v Barava Ltd (2016) N6473.

Isaac Lupari v. Sir Michael Somare, MP – Prime Minister & Chairman of the National Executive Council &Ors (2010) SC1071.

Frontier Copper (PNG) Ltd v. The Hon. Puka Temu, Minister for Mining &Ors (2008) 31st October.

Jimson Sauk v Don Pomb Polye (2004) SC769.

Ginson Goheyu Saonu v Bob Dadae (2004) SC763.

Overseas Cases:

Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] 2 WLR 722.

Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176).

Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283.

Counsel:

Mr. D. Wood, A. Edo and L. Evore, for the Plaintiff

Mr. R. Leo, for the First to the Third Defendants

Mr. N. Saroa, for the Fourth Defendant

Mr. L. Kandi, for the Fifth Defendant

Mr. T. Tanuvasa, and Ms I. Mugugia, for the Sixth and Eight Defendants

Mr. G. Geroro, for the Seventh Defendant

05th June, 2020

1. KANDAKASI DCJ: Barrick (Niugini) Limited (Barrick) is applying for leave for judicial review of a decision by the National Executive Council (NEC) and another by the Head of State. The decisions were respectively made on 11th March and 27th April 2020 refusing an application for extension of the Porgera Special Mining Lease (SML) upon its expiration.

Parties’ claims or arguments

2. Barrick claims those decisions were arrived at without according its natural justice and procedural fairness. It also claims before arriving at the decisions the decision makers, failed to take into account relevant considerations, breached procedures prescribe by statute and the decision was arrived in bad faith. Further, Barrick claims, the decisions are unreasonable in the Wednesbury sense. The State in response, takes issue with Barrick’s standing to bring this application and further submits, Barrick has not established an arguable case for a grant of its application in that it has failed to:

(a) produce evidence of the decision of 11th March 2020;

(b) clearly set out the decision-making process under the Mining Act 1992 and point out to the alleged breaches of them; and

(c) plead with particulars proper grounds for judicial review.

3. Additionally, the State argues, Barrick’s application is effectively questioning the correctness of the decision as opposed to procedure adopted to arrive at the decision. Further, upon expiry of the SML, Barrick has no legitimate expectation capable of protection through judicial review.

4. The parties’ claims or arguments present a number of issues for the Court to consider and determine. These are:

(1) Does Barrick have the necessary standing to bring this application?

(2) Who has the duty to produce evidence disclosing the decisions in question with their reasons?

(3) Has Barrick pleaded its grounds with particulars that clearly disclose reviewable grounds in terms of disclosing the NEC and the Head of State as the decision makers:

(a) denying Barrick its natural justice;

(b) failing to take into account relevant considerations;

(c) breached procedure prescribed under the Mining Act;

(d) arrived at the decision in bad faith; and

(e) the decisions are not reasonable decisions in the Wednesbury sense?

5. The principles governing applications for leave for judicial review are well settled going by relevant case law on point. Learned counsel for Barrick, Mr. Wood drew the Court’s attention to my decision in Leto Darius v. The Commissioner of...