Bougainville Copper Ltd v Vice Minister Raymond Masono

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 22 August 2018
• Citation: (2018) N7430
• Court: National Court
• Year: 2018
• Judgement Number: N7430

Full : OS (JR) No 29 of 2018; Bougainville Copper Limited v Vice Minister Raymond Masono MHR, Minister for Mineral and Energy Resources of the Autonomous Region of Bougainville Government and Bougainville Mining Advisory Council and Timothy Kota, as Chief Mining Warden of the Autonomous Region of Bougainville and the Bougainville Executive Council and Kenton Samson, as Mining Registrar of the Autonomous Region of Bougainville Government and the Autonomous Region of Bougainville Government (2018) N7430

National Court: Gavara-Nanu J

Judgment Delivered: 22 August 2018

N7430

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 29 of 2018

BETWEEN

BOUGAINVILLE COPPER LIMITED

Plaintiff

AND

VICE MINISTER RAYMOND MASONO MHR, Minister for Mineral and Energy Resources of the Autonomous Region of Bougainville Government

First Defendant

AND

BOUGAINVILLE MINING ADVISORY COUNCIL

Second Defendant

AND

TIMOTHY KOTA, as Chief Mining Warden of the Autonomous Region of Bougainville

Third Defendant

AND

THE BOUGAINVILLE EXECUTIVE COUNCIL

Fourth Defendant

AND

KENTON SAMSON, as Mining Registrar of the Autonomous Region of Bougainville Government

Fifth Defendant

AND

THE AUTONOMOUS REGION OF BOUGAINVILLE GOVERNMENT

Sixth Defendant

Waigani: Gavara-Nanu J.

2018: 12 June & 22 August

JUDICIAL REVIEW – Application for a joinder – National Court Rules; Order 16 r 5 (2); Order 5 r 8 (1) – Constitution; s. 155(4) - Tests for a joinder – Bougainville Mining Act, 2015; ss. 33 and 96 – Principles regarding joinder discussed.

Cases cited:

Papua New Guinea Cases

AGC (Pacific) Ltd v. Kipalan [2000] PGNC4; N1944

Avia Aihi v. The State [1981] PNGLR 81

B Fortunaso Pty Ltd v. BSP [1992] PNGLR275

CBS Inc, CBS Records Australia Ltd, Bali Merchants Pty Ltd v. Ranu Investments [1978] PNGLR 66

Dynasty Estates Limited v. Nambawan Super Limited (2015) SC1427

Innovest Limited v. Hon. Patrick Pruaitch, Miniter for Forests and Climate Change and Or (2014) N5949

Marie Iravela v. Banjamin Samson and Ors (2018) N7212

Jack Nou v. Richard Chirake (2004) N2539

Ken Norae Mondiai v. Wavoi Guavi Timber Company Limited (2006) N3061

Pinpar Development Corporation v. TL Timber Pty Limited [1999] PNGLR 139

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126

PNG Printing Co. Ltd Thompson [1993] PNGLR 81

Steamships Trading Company Limited v. Garamut Enterprises Limited (2000) SC1959

Summit Development Ltd v. Byron Chan as Minister for Mining and Ors (2016) N6390

Yanta Development Association Inc. v. Pui Land Group Inc. (2005) SC798

Overseas cases cited:

Re I G Farbenindustrie A G Agreement [1944] 1 Ch.41

Miguel Sanchez & Companies SL v. Owners of the Result [1968] P174

Counsel:

I. Molloy with E. Rere, for the Applicant

E. Anderson, for the Plaintiff

H. Masiria, for the Defendants

22nd August, 2018

1. GAVARA-NANU J: In this proceeding the plaintiff is seeking review of the decision of the defendants made on 16 January, 2018, to refuse its application filed on 5 July, 2016 for an extension of its Exploration License No. EL01 which expired on 7 September, 2016. The El01 was granted on 8 September, 2014. The refusal was conveyed to the plaintiff in writing by the first defendant, it is “Annexure MH9” to Mark Hitchcock’s affidavit sworn on 25 January, 2018.

2. Before the Court is an application by Central Me’ekamui Exploration Limited (CMEL), (applicant) a company incorporated in PNG under the Companies Act, 1997 to be joined as the seventh defendant in this proceeding. The application is made pursuant to a notice of motion filed on 19 April, 2018, and an amended notice of motion filed on 20 June, 2018.

3. The applicant is fifty percent owned by a local Bougainvillean, Mr Philip Miriori (a landowner), and Special Mining Lease Osikayang Landowners Association Inc. (SMLOLA), each holding twenty five percent shares. The other fifty percent is owned by a foreign owned company called Central Exploration Ltd (CEL).

4. It should be noted that a number of applicant’s Directors are landowners who come from the area where Panguna mine is located.

5. Mr Miriori claims to be the Chairman of SMLOLA, which has interest in the same area of land over which the plaintiff had previous Special Mining Lease and now the subject of its application (the land).

6. On 16 November, 2017, the applicant submitted an application to the Bougainville Mining Registrar, Tenements for an Exploration License (EL), over the land.

7. Both Philip Miriori and SMLOLA have opposed the plaintiff’s application for an extension of its EL. They have attended Mining Warden’s hearing in which they strongly opposed the plaintiff’s extension application.

8. Mr Ian Molloy, counsel for the applicant submitted that the relevant tests for a joinder are;

(i) whether the applicant has sufficient interest in the proceeding; for which the applicant must show that it is a person directly affected by the proceeding; and

(ii) whether the joinder of the applicant is necessary; for which the applicant must show that its joinder will assist in the complete determination and adjudication of all the maters in dispute in the proceeding.

9. The above tests are essentially those the Supreme Court adopted in PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126. See also Yanta Development Association Inc. v. Pui Land Group Inc. (2005) SC798 and Jack Nou v. Richard Chirake N2539.

10. It was submitted that above tests should be given wide interpretation given that the decision the plaintiff is seeking to review concerns the rights and interests of the landowners.

11. Mr Molloy argued that the applicant is directly affected by the proceeding because it has already applied for an EL over the land. He submitted that the applicant ought to have been joined so that it could be heard on the matters in dispute. He told the Court that the plaintiff has also served the notice of motion filed under Order 16 r 5 (1) of the National Court Rules (NCR) on the applicant, which led to the applicant opting to apply to be joined as the seventh defendant in this proceeding.

12. Mr Erick Anderson, counsel for the plaintiff argued that the applicant has no legal right to be joined as a party in this proceeding because under the scheme of Bougainville Mining Act, 2015, (BMA) as an existing tenement holder, the plaintiff’s extension application has to be considered on its own by the relevant authorities. He argued that the plaintiff’s extension application cannot be compared with or weighed in anyway against any subsequent application for an EL, including the applicant’s application because such applications would be entirely independent of, and irrelevant to the plaintiff’s extension application. It was submitted that the applicant has no legal role whatsoever in the consideration, grant or refusal of the plaintiff’s extension application. It was further submitted that even if the applicant was joined as a party, it cannot contribute meaningfully towards full and effective determination and adjudication of the matters in dispute between the parties.

13. Mr Anderson argued that the applicant is a subsequent applicant for an EL whose application can only be considered by the relevant authorities after the plaintiff’s extension application has been considered and concluded and only if the plaintiff’s extension application is refused. The applicant’s application will in turn be considered independently of the plaintiff’s extension application.

14. It was submitted that the applicant only has a commercial interest or desire for a particular outcome in the proceeding, but that does not entitle it to be joined as a party. And although the applicant claims to represent landowners, which the plaintiff denies, it has no role to play in the extension of the plaintiff’s EL. Furthermore, the applicant cannot be involved in plaintiff’s extension application because it is half foreign owned, and is not an approved landowner organisation under the BMA.

15. It was also argued that any part already played by the applicant in being engaged in Warden’s hearing does not give the applicant sufficient interest in the proceeding as it is not an approved landowner organisation. Only approved landowner organisations which might be affected by the plaintiff’s activities can participate in the Warden’s hearing.

16. Reference was also made to the two tests adopted by the Supreme Court in PNG Deep Sea Fishing Ltd, which an applicant for a joinder must satisfy.

17. It is common ground that the relevant tests for a joinder have been laid down by the Supreme Court in PNG Deep Sea Fishing Ltd. Mr Anderson submitted that the applicant has failed to satisfy those tests.

18. Mr Anderson expanded the plaintiff’s grounds of argument by submitting that the application should be refused because the applicant has no cause of action or a claim against the plaintiff and vice versa, the plaintiff relied on AGC (Pacific) Ltd. v. Kipalan [2000] PGNC4; N1944 for this argument. It was also argued that the plaintiff has no remedy against the applicant and vice versa, nor has...