Mayur Renewables Limited v The Honourable Solan Mirisim (MP) and Others

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ
• Judgment Date: 22 January 2024
• Neutral Citation: N10649
• Citation: N10649, 2024-01-22
• Counsel: Mr. I. Shepherd, for the Plaintiff,Mr. J. Unua, for the First and Second Defendants
• Docket Number: OS (JR) 81 OF 2022
• Hearing Date: 16 November 2023,22 January 2024
• Court: National Court

N10649

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) 81 OF 2022

Mayur Renewables Limited

Plaintiff

v.

The Honourable Solan Mirisim (MP), Minister for Forests

First Defendant

and

Faith Barton, Chairperson – National Forest Board

Second Defendant

and

Papua New Guinea Forest Authority

Third Defendant

Waigani: Kandakasi DCJ

2023: 16^th November

2024: 22^nd January

JUDICIAL REVIEW — Decision cancelling timber permits for development of carbon offset project — Enabling legislation — Forestry Act — Lacking specific provision — Objectives of Act include conservation and preservation of forests — Broad enough to cover carbon offsetting projects — Climate Change Emergency — usual approach to any other emergency applicable — Parties deciding in favour of project and agreeing to backfill the legislative void — Change in political leadership — Minister pro logging — Wrong provision used to cancel — Prescribed process not used — Plaintiff not accorded opportunity to be heard and heard before decision — Decision failing to consider Climate Change Emergency factors underpinning grant of Permits — No evidence of policy shift in favour of logging — No reasons given — Failure to take into account principles of environmental rule of law — Decision unreasonable — Review granted — Decision quashed and restraining orders issued.

ENVIRONMENT LAW — Climate Change Emergency — Urgent and immediate actions in mitigation and adaptation required — Measures often taken in an emergency applicable whether prescribed by law or not — International treaties, conventions, protocols and agreements — Environmental Rule of Law — Relevant Principles — World Declaration — Obligation to protect nature — Right to conservation, protection, and restoration of health and integrity of ecosystems — Inherent right of nature to exist, thrive, and evolve — Right of each human, present and future, to a safe, clean, healthy, and sustainable environment — Taking legal and other measures to protect and restore ecosystem integrity and to sustain and enhance the resilience of social-ecological systems — Principle of in dubio pro natura, that is to say, in cases of doubt, all matters before courts, administrative agencies, and other decision makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment.

LAWYERS — Duty of Lawyers — Lawyer not to purport to represent a party without instructions — Effect of — Possible fraudulent misrepresentation — Duty to be honest and candid with clients, advise and assist clients to resolve matters promptly and avoid unnecessary litigation — Duty not to take up a position that is not support by statutory or case law and take up a position that is against relevant law — Not to purport to represent a party from whom they have no instructions — Effect of — Possible fraudulent misrepresentation.

Facts

Compelled by Climate Change related risks and the need to take urgent mitigation and adaptation measures, PNG through the then Minister for Forests and the PNG Forest Authority (PNGFA) granted three timber permits (Permits) to the plaintiff (Mayur). Mayur and the Defendants as well as the Climate Change Development Authority (CCDA) and the Conservation and Environment Protection Authority (CEPA) signed a Heads of Agreement (HOA) which included an undertaking to procure and provide all authorisation necessary for Mayur to develop the Carbon Offset Project or REDD+ Scheme and a similar undertaking was also given in a Operator's Tri-Partite Deed (OTPD) which included registration as a Forest Industry Participant (FIP). Based on those agreements, Mayur received a request by the then Chairman and Minister for Forests, whereupon it immediately paid for and applied to be registered as a FIP prior to the HOA being executed.

A former Minister of State who was pro logging on becoming Minister again, unilaterally, independently and without the involvement of the PNGFA and National Forest Board (NFB) cancelled the Permits (Decision) using wrong provisions of the Forestry Act (Act). He did so without first giving Mayur notice, it's right to be heard, and hearing Mayur. The Minister also purported to give directions under s. 97 of the Act. The Decision was allegedly based on Mayur not being a FIP and the Act not expressly providing for the kinds of permits issued to Mayur. The Minister and the Defendants did not produce any evidence of the Minister before making the Decision, taking into account the Climate Change Emergency and the need for REDD+ Schemes and the full background leading to the grant of the Permits at the first place. The Minister and the Defendants also failed to disclose what caused the Minister to arrive at his Decision unilaterally and summarily. Mayur claimed the Minister acted ultra vires the provisions of s.86 of the Act, failed to comply with the statutorily prescribed process, failed to give notice of intention to cancel the Permits, accord it the right to be heard and hear it before making the Decision. Also, Mayur submitted that, the Minister's decision was unreasonable and was tainted with bias. The Minister did not appear and did not instruct any lawyer to appear for him and his instructions in response to Mayur's claims. The lawyer was therefore excluded from further participating at the hearing. The 2^nd Defendant (NFB) and the 3^rd Defendant (PNGFA) argued that since Mayur was not a FIP and the Permits had no specific provision for them in the Act, they were illegal. That gave the Minister the power to make the Decision in the way the Decision was arrived at.

Held

1. A lawyer can only appear in Court and make representations on behalf of a party with the party concern's instructions. The absence of any instructions could amount to a lawyer acting fraudulently and misrepresenting the party concerned. In the present case, since counsel for the Minister did not seek and secure specific instructions to represent the Minister, he was precluded from appearing for and making any submissions on behalf of the Minister.

2. The Minister acted ultra vires his powers and failed to comply with the relevant process and procedures provided for under s. 86 of the Act when he purported to exercise powers under s. 97 also of the Act which applies to licenses issued under s. 91 and not permits under s.73 of the Act. Section 86 being the correct and directly applicable provision, expressly sets out the process for a cancellation of the Permits. There was no evidence of following that prescribed process or anything close to it to arrive at the Decision.

3. The failure to follow the process deprived the Minister of duly considering: (1) the serious Climate Change Emergency related challenges the world is facing globally; (2) PNG's international and domestic obligations; (3) the relevant government policy related discussions; (4) and responses including: (i) the enactment of the Environment Act 2000 (EA2000) as amended, the Climate Change (Management) Act 2015 (CC(M)A; (ii) and the decision to take real and meaningful steps under the REDD+ Scheme.

4. The Defendants argument that Mayur was not a FIP was rejected because:

(a) It was based on a wrong and outdated Companies Act provision and, in any case, Mayur was duly registered as a company under the Companies Act 1997 (CA1997) and, as a foreign owned company in PNG for the purposes of conducting business lawfully in PNG.

(b) The PNGFA and other relevant authorities undertook through the HOA and the OTPD to help procure and provide all necessary authorisation for Mayur to develop the Project which included registration as a FIP, following which Mayur received a request by the then Chairman and Minister for Forests and it immediately paid for and applied to be registered as a FIP.

(c) By letter dated 6 January 2022, the managing director of PNGFA advised the then Minister that “all processes under the Act have been fully completed and the grant of the first ever timber permits relating to carbon trading over the Kamula Doso FMA Blocks are all in order now for your grant as attached”.

(d) The claim of Mayur not being a FIP was given belatedly after the Minister cancelled the Permits pursuant to s. 97 of the Act which was contrary to the legal requirement to give reasons at the time of making a decision even in cases where there is no statutory requirement to do so. Adopted and applied: Amet v. Yama (2010) SC1064 and Michael Wapi v. Dr. Eric Kwa & Ors (2022) N10362.

5. The Defendants' claim of illegality was also rejected because the decision leading to and the eventual grant of the Permits was a deliberate and well considered decision compelled by the Climate Change Emergency and the need for urgent actions which includes, prevention of further deforestation and preservation of what is remaining and at the same time, gain economically from taking such steps. The rejection was also based on no evidence of the Minister having considered the following:

(1) The EA2000 and several amendments to that Act with the latest one being the Environment (Amendment) Act 2012 were passed to domesticate international conventions, treaties, or protocols and agreements and have a comprehensive environment legislation that is more current and more modern.

(2) Successive governments and Ministers have stressed the need to preserve the nation's forest resources and to introduce carbon offset projects, comply with the REDD+ Scheme, which is for the forests to be saved from clearing and credits are issued for the carbon stored in the forests left standing.

(3) PNGFA announced in the Draft 2012 National Forest Plan that four REDD+ Scheme pilot programs were underway and one, the April Salumei Project in East Sepik was launched despite there being no specific legislative provision providing for it.

(4) The significance of the passing of the CC(M)A...