Walter Pito v. OK Tedi Mining Limited

• Judge: Kandakasi DCJ
• Judgment Date: 13 March 2026
• Date: 13 March 2026
• Counsel: Counsel,Mr. A. Mana for the plaintiff,Mr. A. Roden-Paru for the first defendant,Mr. A. Ayako for the second defendant,Mr. T. Boboro Jr for the third defendant

N11794

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 545 OF 2025 (CDS)

Between:

Walter Pito

Plaintiff

v.

OK Tedi Mining Limited

First Defendant

Mineral Resources Development Company Limited

Second Defendant

The Independent State of Papua New Guinea

Third Defendant

WAIGANI: Kandakasi DCJ

10 February, 13 March 2026

CIVIL PROCEDURE — Interlocutory application — Application to dismiss proceedings — Order 12 r 40 National Court Rules — Summary dismissal — Principles — Discretion to be exercised cautiously and sparingly.

STANDING (LOCUS STANDI) — Representative proceedings — Village and regional representative — Alleged lack of consent of represented persons — Relevant particulars not request prior to application — Whether standing established at interlocutory stage.

PLEADINGS — Sufficiency — Alleged deficiencies in authority and particulars — Whether defects curable by request for further and better particulars or amendment — Abuse of process.

ENVIRONMENTAL LAW — Environmental harm and damage — Standing to bring environmental claims — Sufficient interest — Public interest litigation.

MINING LAW — Ok Tedi Mine — Community Mine Continuation Agreements (CMCA) — Consultation — Free, Prior and Informed Consent (FPIC) required — Required process — Process used not disclosed.

EQUITY — Unconscionable conduct — Fairness of Transactions Act — Whether issues suitable for summary determination.

Facts

The plaintiff, a landowner from the Highway Region affected by the Ok Tedi Mine, commenced proceedings seeking injunctive and declaratory relief to restrain the conclusion and enactment of the proposed Community Mine Continuation Agreement (CMCA) 2025 Extension Agreement and the Mining (Ok Tedi Mine Extension (Twelfth Supplemental) Agreement) Act 2025. He sued in his personal capacity and as a village and regional representative, alleging inadequate consultation, failure to obtain free, prior and informed consent (FPIC) of the people, environmental harm, unconscionable conduct, and breach of the Fairness of Transactions Act. The first defendant applied at an interlocutory stage to dismiss the proceedings under O 12 r 40 of the National Court Rules, contending that the plaintiff lacked standing because he did not have the express consent and authority of the people he purported to represent.

Held

1. Applications for summary dismissal must be treated with much caution and must be exercised sparingly and only where pleadings are obviously and almost incontestably bad that no request for further and better particulars or amendments will cure: Adopted and applied Philp Takori v. Simon Yagari & Ors (2008) SC905 as affirmed by Jackson Tuwi v. Goodman Fileder International Ltd (2016) SC1500 and Yugari v. Waranduo (2024) SC2671.

2. If there are defects or insufficient pleadings relating to the capacity, authority, or particulars in a representative action, the proper course is to seek further and better particulars or amendments, not an immediate application for dismissal of proceedings: Adopted and applied Philp Takori v. Simon Yagari & Ors (2008) SC905 as affirmed by Jackson Tuwi v. Goodman Fielder International Ltd (2016) SC1500 and Yugari v. Waranduo (2024) SC2671.

3. Issues concerning the free prior informed consent (FPIC) of the community, environmental harm, and statutory or equitable fairness raise serious factual and legal questions unsuitable for determination at an interlocutory stage: Adopted and applied Philp Takori v. Simon Yagari & Ors (2008) SC905 as affirmed by Jackson Tuwi v. Goodman Fielder International Ltd (2016) SC1500 and Yugari v. Waranduo (2024) SC2671

4. The defendants' application was dismissed with costs for being an abuse of the process of the court for not exhausting the requirements for requesting further and better particulars and the fact that the plaintiff had sufficient interest and standing to bring the proceeding: Re Petition of MT Somare [1981] PNGLR 265, Allolim v. Biul Kirokim (2018) SC1735 Kenn Norae Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886 and Morua v. China Harbour Engineering Co (PNG) Ltd (2020) N8188.

Cases cited

Alex Bernard v. Nixon Duban (2016) N6299.

Allolim v Biul Kirokim (2018) SC1735.

Application by Ila Geno (2014) SC1313.

Baindu v. Yopiyopi (2019) SC1763.

China Harbour Engineering Co (PNG) Ltd v. Aloysius (2024) SC2693.

Don Polye v. Jimson Papaki & Ors (2000) SC637.

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2000) N2001.

Hussainara Khatoon & Ors vs. Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3) 532.

Ilai Bate v. The State (2012) SC1216.

Jackson Tuwi v. Goodman Fielder International Ltd (2016) SC1500.

Juffa v. Juffa (2025) SC2781.

Kenn Norae Mondiai v. Wawoi Guavi Timber Co Ltd (2007) SC886.

Kerry Lerro v. Philip Stagg, Valentine Kambori and The Independent State of Papua New Guinea (2006) N3950.

Mathias Goma v. Protect Security & Communication Ltd (2013) SC1300.

Mekere Morauta v. Ano Pala (2016) SC1529.

Mendepo v. National Housing Corporation (2011) SC1169.

Morua v. China Harbour Engineering Co (PNG) Ltd (2020) N8188.

Motor Vehicles Insurance (PNG) Trust v James Pupune [1993] PNGLR 370.

Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214.

Namah v. Pato (2014) SC1304.

Papua New Guinea Banking Corporation v. Tole (2002) SC694.

Philip Kikala v. Electoral Commission (2013) N4960.

Philp Takori v. Simon Yagari & Ors (2008) SC905.

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

PNG Forest Products Pty Ltd v. State [1992] PNGLR 85.

Powi v. Kaku (2018) SC1743.

Re Conditions at Buimo Corrective Institution [1988–89] PNGLR 266.

Re lack of Correctional Service (CS) Facilities in the Enga Province (2010) N3886.

Re Miriam Willingal [1997] PNGLR 119.

Re Petition of MT Somare [1981] PNGLR 265.

Rimbao v. Pandan (2011) SC1098.

Rimbunan Hijau (PNG) Ltd v. Ine Ibi & Ors (2017) SC1605.

Saonu v. Mori (2021) N9170.

SC Reference No 1 of 1977 [1977] PNGLR 362.

Simon Mali v The State (2002) SC960.

The Human Rights Case (Environmental Pollution in Balochistan PLD 1994 SC.

The State v. Jimmy Ketu (No 2) (2007) N3394.

The State v. Transferees (2015) SC1451.

Thomas Serowa v Pacific Hires Ltd (2016) SC1517.

Tigam Malewo & Ors v. Faulkner & Ors (2009) SC960.

Uma More v. The University of Papua New Guinea [1985] PNGLR 401.

Yugari v. Waranduo (2024) SC2671.

Counsel

Mr. A. Mana for the plaintiff

Mr. A. Roden-Paru for the first defendant

Mr. A. Ayako for the second defendant

Mr. T. Boboro Jr for the third defendant

Lawyers for the plaintiff: Allan Mana Lawyers

Lawyers for the first defendant: Allens

Lawyer for the second defendant: MRDC In House Counsel

Lawyer for the third defendant: Solicitor General

DECISION ON INTERLOCUTORY APPLICATION TO DISMISS

13 March 2026

1. Kandakasi DCJ: Through a preliminary point, Ok Tedi Mining Limited (OTML), the first defendant, is applying to dismiss this proceeding. The Second Defendant (MRDC) and the third defendant (the State) support the application. The principal ground relied upon is that the plaintiff, Walter Pito (Pito), lacks standing to bring the proceeding on behalf of the Highway Region landowners, allegedly without their express consent.

2. Pito responds that he has the approval of his people and, in any event, has standing to bring this proceeding to protect the environment from further harm and damage and to safeguard persons dependent upon that environment.

Issue for resolution

3. Hence, the sole issue for determination at this interlocutory stage is whether Pito has the necessary legal standing to bring this proceeding. The answer is dependent on the pleadings, the relevant facts, and the applicable principles of law.

Pleadings and Relevant Facts

4. From the Statement of Claim (the Claim), it is pleaded and not contested that the continued operation of the Ok Tedi Mine was secured under the Mining (Ok Tedi Agreement) Act (Ch 363) and subsequent supplemental agreements, culminating in the Mining (Ok Tedi Mine Extension (Eleventh Supplemental) Agreement) Act 2014. These agreements have the force of law.

5. Since 2001, Community Mine Continuation Agreements (CMCAs) have been the instruments through which impacted and affected communities were consulted and engaged. The CMCAs acknowledge significant environmental and social impacts arising from the Ok Tedi Mine operations. With the Eleventh Supplemental Agreement expiring in December 2025, OTML commenced consultations in February 2024 to obtain the free, prior and informed consent (FPIC) for mine continuation, leading to a proposed CMCA 2025 Extension Agreement and the Mining (Ok Tedi Mine Extension (Twelfth Supplemental) Agreement) Act 2025.

6. Pito pleads that he is a landowner from Matkomnai Village, a village representative, and a lead delegate for the Highway Region in the 2024–2025 CMCA consultation process. He sues in his personal capacity and in a representative capacity. Pito further pleads heightened environmental and social impacts, inadequate disclosure and consultation, absence of meaningful FPIC, unconscionable conduct, and breaches of the Fairness of Transactions Act. He seeks injunctive and alternative reliefs.

7. OTML admits that Pito is a village representative and one of the Highway Region delegates but denies that he has endorsement from all villages in the region to institute the proceedings. OTML otherwise denies and joins issue on the substantive allegations.

The Defendants' Application

8. As already noted, the defendants are seeking to summarily dismiss the proceeding under O 12 r 40 of the National Court Rules, contending that the plaintiff lacks standing because he does not have the express consent and authority of the persons he purports to represent. This application is made at an interlocutory stage and is directed solely to the question of standing, without addressing the substantive merits of the Claim.

Principles governing applications for summary judgment

9. The principles governing applications for...