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Turaha v Pok [2021] PGNC 330; N8995 (4 August 2021)

N8995

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

1. OS (JR) No. 418 of 2018
   

JOSHUA TURAHA & BUSUNAE POSOU OF ISAWERI BUPUKU GOHU SUB CLAN OF ISAWERI CLAN
Plaintiffs

2. OS (JR) No. 421 of 2018
   

PAUL SAPAKE & JASON TIRIME OF TOALE HONGIRI SUB CLAN OF IMAWE BOGASI STOCK CLAN
First Plaintiffs

AND:
YAKS YAKORIA OF TIASUPI SUB CLAN OF IMAWE BOGASI STOCK CLAN
Second Plaintiffs

AND:
HON. DR. FABIAN POK, MINISTER FOR PETROLEUM
First Defendant

AND:
MR. KEPSY K. PUIYE ACTING SECRETARY DEPARTMENT OF PETROLEUM
Second Defendant

AND:
MR. DAIRI VELE, SECRETARY DEPARTMENT OF TREASURY
Third Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Miviri J
2021: 07^th June, 4^th August

PRACTICE & PROCEDURE – Judicial Review – Ministerial Decision – Determinations Proportion of Equity benefits pursuant to sections 167 & 168 Oil & Gas Act – In compliance of – No Ultra Vires – No Unreasonableness – No merit in action – No error in procedure – Judicial Review does not lie – balance not discharged – Motion refused – Cost follow event.

Cases Cited:

Tumu for Luhalipu Clan v Independent State of Papua New Guinea [2002] PGNC 137; N2190 (28 February 2002)

OS No. 85 of 2020 Wolutou Incorporated Land Group v David Manau Secretary Department of Petroleum & Energy & 11 Ors (06 April 2021)

Avini v The State [1997] PGSC 21; [1997] PNGLR 212 (15 July 1997)

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005)
Counsel:

J. Haiara, for Plaintiff in both proceedings
M. Tukulia, for First, Second, Fourth Defendant in both proceedings. 418 & First, Second, Fourth Defendants in 421
H. Maliso, for Secretary for Treasury
C. Pombo, for Fifth Defendants

RULING

04^th August, 2021

1. MIVIRI, J: This is the ruling after trial on two proceedings, firstly OS (JR) 418 and 421 both of 2018, where the parties in each case have agreed to a consolidated hearing, essentially, because the facts, circumstances, and the issues, emanating are the same in each case. The parties are the same in the case of all defendants except for the plaintiffs in each case.
   
2. But effectively for all intent and purposes, what is challenged is the Ministerial determination by the Minister for Petroleum, Honourable Fabian Pok of the 30^th May 2018, endorsed by the second and third defendants, and published in the Post Courier on the 13^th June 2018. And also published in the National Gazette G 362 Monday the 04^th June 2018.
   
3. In OS (JR) 418 of 2018 the plaintiffs Joshua Turaha & Busunae Posou of Isaweri Bupuku Gohu Sub Clan of Isaweri Clan, contend that the Ministerial determination for PL No. 4 Segment Six (6) beneficiaries made published in the Post Courier on the 13^th June 2018, did not have the name that was signed for listed as number 7 beneficiary to the determination. The contention is that there is no determination made by the Minister here that covers, Isaweri Makof and Isaweri Bupuka Gohu Sub Clans. In particular the Isaweri Bupuku Gohu sub-Clan has missed in land ownership benefit. It has also missed out its interest under Isaweri Clan in the Ministerial Determination of the 30^th May 2018; and payment of land Compensation made in respect to the Isaweri Clan land from Ebo creek to Beari Creek at the end of the Gobe airstrip by Exxon Mobil; and all pipeline grass cutting contracts involving thousands of kina per year on the Isaweri Clan Land.
   
4. Because the pipeline segment 6 is within the Special land Titles Commission adjudication area determined by (as he then was) Justice Salika as special land Titles Commissioner and decision published on the 29^th February 1996. It is considered a brown field project area in that, there are existing landowner beneficiaries who are currently receiving equity and royalty grants, from the State under section 167 and 168 of the Oil and Gas Act from the Kutubu Petroleum Project, and as such it is contended by the Plaintiffs that the Ministerial Determination should have identified the existing beneficiaries, with the existing benefit sharing arrangements. Instead, the Minister included some new clans and distributed the benefits inadequately, without considering the current benefit sharing arrangements for the Kutubu Pipeline right of way, the LTC decision, submission of Plaintiffs, and the agreement between other affected clans contrary to section 169 (4) and section 170 (3) of the Oil and Gas Act (the Act).
   
5. In the case of the Plaintiff Paul Sapake, he is leader of the Imawe Bogasi Clan and chairman of Toale Hongiri Incorporated Land Group and a leader of the Toale Hongiri sub clan of Imawe Bogasi Stock clan of Pawapi village in Samberigi Valley, Erave Local Level Government Area, Southern Highlands Province. The plaintiff Jason Tirime is also a leader of the Imawe Bogasi stock clan, a leader of the Toale Hongiri sub clan and general secretary of the Toale Hongiri ILG. He also comes from Pawapi village Samberigi valley, Erave LLG, Southern Highlands Province. The plaintiff, Yaks Yakoria is also a leader of the Imawe Bogasi Stock Clan and chairman of Tiasapi ILG sub clan of Iwawe Bogasi stock clan.
   
6. By their statement in support of the 25^th June 2018 filed of the 26^th June 2018 they plead that the PNG LNG Project pipeline Licence 4 (PDL4) Segment 6 runs at the foot of the mountain ranges adjacent to the Gobe Petroleum Project, starting at the Mubi River crossing (KP173) and ends at Kaiam/Kikori river crossing (KP223) covering some 50 kilometres in length.
   
7. Under the Kutubu Oil Pipeline Project, prior to the coming on stream of the PNG LNG Project, the beneficiaries of Royalties and Equity grants from the State in respect of pipeline segment 6 were seventeen (17) clans, six (6) clans from the Baina side and eleven (11) from the Imawe Bogasi side, inclusive of Yesiki clan and Imawe Kewa clan.
   
8. Pipeline Segment 6 also runs through and is within the Special Land Titles Commission adjudication area which was adjudicated by Salika J (as he then was ) as a Special Land Titles Commissioner in 1995 and a review of that decision is still pending before the LTC to date.
   
9. The Special Land Titles Commissioner (SLTC) per Salika J (as he then was) found that the Imawe Bogasi Clan was the customary land rights holders of the Southeast Gobe Oil fields and pipeline Segment 6 from Yokoro creek (just outside Gobe airstrip) to Kaiam crossing.
   
10. Pipeline Segment 6 is considered brown field project in that customary landowners affected by the project have themselves recognized each other based on Salika, J’s SLTC decision and have been receiving benefits in the ratio of 50:25:25 Imawe Bogasi, Imawe Kewa and Yesiki clans respectively for the Kutubu Petroleum Project pipeline right of way.
    
11. In both actions for review it is contended that the Minister breached section 169 (2) of the Oil and Gas Act in determining under section 169 & 170 of that Act as to the beneficiaries of Royalties and equity grants under section 167 and 168 of that Act. Whether in so doing did he commit an error of law in failing to consider and give less or no weight to the decision of the Special Land Titles Commissioner, Justice Salika (as he then was) regarding the identity of clans who are affected by the pipeline 4 Segment 6 right of way and the agreement between the affected clans as to sharing of benefits and benefit sharing formula proposed by those affected clans and the plaintiff’s submission regarding same?
    
12. And in so acting whether he acted ultra vires section 169 (4) and 170 (3) of the Oil and Gas Act by not giving an opportunity to the Pipeline 4 Segment 6 Landowners to negotiate and agree to the proportion of benefits to be received by them and the distribution formula or disregarded their benefits sharing agreements.
    
13. And further whether he acted ultra vires in not taking into account benefits sharing formula proposed by the Plaintiffs to the Defendant; and not taking into consideration the existing benefit sharing arrangements for Kutubu Petroleum Project for the same pipeline segment; and failing to consider and not giving any weight to special Land Titles Commission (SLTC) decision which determined Imawe Bogasi clan has substantial customary landownership interest within that land region where Pipeline 4 Segment 6 runs.
    
14. Section 169 of the Oil and Gas Act is in the following terms;-
    

IDENTIFICATION OF LANDOWNER BENEFICIARIES.

(1) Notwithstanding any other provision of this Act, the persons (other than affected Local-level Governments or affected Provincial Governments) who shall receive the benefits granted by Sections 167 and 168 shall be identified in accordance with this section.

(2) Prior to convening or during a development forum under Section 48, the Minister shall determine, by instrument–

(a) the persons (other than affected Local-level Governments or affected Provincial Governments) who shall receive the benefits granted by Sections 167 and 168; and
(b) the incorporated land groups or, if permitted in accordance with Section 176(3)(f), any other persons or entities who shall represent and receive the benefit on behalf of the grantees of the benefit.

(3) An instrument under Subsection (2) shall only be valid if also signed by the Director and the Secretary of the Department of Treasury or other National Government Department responsible for financial matters.

(4) In making a determination under Subsection (2), the Minister shall consider any agreements by persons who are or claim to be project area landowners, the decisions of courts of Papua New Guinea as to ownership of land or rights in relation to land in the vicinity of the petroleum project in question, the results of social mapping and landowner identification studies carried out in accordance with this Act, and submissions from affected Local-level Governments or affected Provincial Governments of the petroleum project in question or from any other person claiming an interest or to be affected by the decision of the Minister.

(5) A petroleum development licensee or applicant for a petroleum development licence may, at any time after an application for the grant or variation of a petroleum development licence in respect of a petroleum project, apply to the Minister for a determination under Subsection (2).

(6) Where a licensee or an applicant for a licence applies to the Minister for a determination under Subsection (5), the Minister shall allow a period of 30 days, or such longer period as the Minister may allow, for persons referred to in Subsection (4) to make submissions or in the case of persons claiming to be project area landowners to advise him of agreements reached by them on the determination.

(7) Where a dispute exists as to which persons or incorporated land groups or other entities should be identified to receive benefits in accordance with this section, the Minister may make a determination under Subsection (2) or may direct that monies or other benefits which are the subject of the dispute shall be held in abeyance pending a resolution of that dispute by other means, and where such a direction is given by the Minister the trustee referred to in Section 176 shall hold such monies or other benefits in accordance with that direction.

(8) Where the minister directs that monies or other benefits are to be held in abeyance under Subsection (7) or where the Minister’s determination under Subsection (2) is subject to judicial review, the Minister may grant the licence or licences in respect of the petroleum project.

(9) Where the Minister has granted the licence or licences under Subsection (8) and the dispute is resolved the Minister shall make a determination under Subsection (2) and convene a development forum under Section 48.

(10) A ministerial determination made pursuant to the section shall not be reviewable before any court unless an application for review is made within 28 days of the Ministerial determination.

169A. IDENTIFICATION OF LANDOWNERS BENEFICIARIES AND SHARING OF BENEFITS IN RELATION TO EXISTING PETROLEUM PROJECTS.

(1) If in respect of petroleum projects which on the commencement date are in production or have commenced development, persons, or incorporated land groups or other entities, who should be receiving benefits from such petroleum projects, have not been identified or where a dispute exists as to which persons or incorporated land groups or other entities should be identified to receive such benefits, the Minister may make a determination as to the persons or incorporated land groups or other entities who should receive the benefits arising from such petroleum project.

(2) In making a determination under Subsection (1), the Minister shall consider any agreements by persons who are or claim to be project area landowners, the decisions of courts of Papua New Guinea as to ownership of land or rights in relation to land in the vicinity of the petroleum project in question, the results of social mapping and landowner identification studies that have been carried out in accordance with this Act, and submissions from affected Local-level Governments or affected Provincial Governments of the petroleum project in question or from any other person claiming an interest or to be affected by the decision of the Minister.

(3) Where, in the opinion of the Minister, having considered any agreements by persons who are or claim to be project area landowners, the decisions of the courts of Papua New Guinea as to ownership of land or rights in relation to land in the vicinity of the petroleum project in question, the results of any social mapping and landowner identification studies that have been carried out in accordance with Section 47, some project area landowners have a greater or more substantial occupation or right of occupation of the land referred to in the definition of “project area landowners” or are more adversely impacted by the petroleum project than other project area landowners, the Minister may, by instrument, determine that the sharing amongst project area landowners of equity benefits or royalty benefits in accordance with this section shall favour, on a per capita basis, those project area landowners who have that greater or more substantial occupation or right of occupation or are more adversely impacted by the petroleum project.

15. It is clear that the Minister has used this section with the other, to make the determination that he has made, because that is what is set out in annexure “A” the published advertisement, by the Minister in the affidavit of Joshua Turaha of 27^th July 2018 filed 31^st July 2018. There is specific mention in that publication that “ Having received and considered results of social mapping and land owner identification studies carried out under section 47 of the Oil & Gas Act 1998 as amended, PNG LOBID vetting reports, signed intra clan benefit sharing consent forms from the project area, PNG LNG Project Umbrella Benefit Sharing Agreement (UBSA) Pipeline Licence Benefit Sharing Agreement (LBBSA) NEC Decision No. 193/2015 and other related submission for the purposes of section 169 & 170, I, as the Minister responsible for the Implementation of the Oil & Gas Act 1998 (as amended make the following determination;”
    
16. There are three times in annexure “A” in each of the three publications. Which is very clear compliance of section 169 and 170 by the Minister. It means there is no procedural error or ultra vires as contended by each of the plaintiffs in each case on the part of the Minister. His determination is complying and have the force of law within. This is conclusive evidence that tilts the balance against the contention of the plaintiff. Their assertions are without merit. And in all probability fails.
    
17. Because section 167 grants an equity benefit to the landowners either by agreement or in proportions as determined by the Minister by Instrument. It is equity benefit derived in this case from Kutubu Oil Pipeline Project. Similarly, under section 168 Royalty benefit is granted the landowners also by agreement or in proportions as determined by the Minister by Instrument. It will be paid monthly to the trustee or held on trust for them. Their identification will be in accordance with section 169. Here the Minister will determine by instrument the persons who will receive the benefits granted by section 167 and 168 of the Act. He will consider any agreements if any by the persons who are or claim to be landowners. The decision of the courts of Papua New Guinea as to the ownership of land or rights in relation to the subject land in the vicinity of the project. He will also consider the results of social mapping and landowner identification studies carried out in accordance with the Act. Also, submissions from affected Provincial Governments of the petroleum project in question and from any other person claiming an interest or be affected by the decision of the Minister. Effectively any argument on these basis is without merit. The record is self-explained set out above and leaves no hole in law as to what the Minister did here. The plaintiffs have failed again.
    
18. The sharing of benefits amongst the project area landowners’ section 170 of the Act, identifies that some project area may have greater or more substantial occupation or right of occupation of the land. And it would not be wrong for the same to so given on a per capita basis. The evidence of Joshua Turaha by his affidavit dated the 27^th July 2018 filed 31^st July 2018 Clearly depicts annexure “ A” this fact is true of the published advertisement. There is no dispute that the plaintiffs continue to benefit by the process of law. And any dispute amongst themselves will mean that benefit is now in abeyance in trust until resolution of the dispute amongst is resolved section 169 (7) of the Act above.
    
19. Hence for all intent and purposes the plaintiff can receive their benefits due by law but their own dispute and argument will effectively put their benefits and royalty in trust. It is theirs flowing by process of law and remains in trust until they resolve their dispute. In this regard the evidence by the publication is clear all named to receive and there is no one that misses out as contended by the Plaintiffs. The material, which is in the affidavit of the lead plaintiffs, Joshua Turaha, Jason Tirime of the 17^th July 2019. And Paul Sapake of the 06^th November 2018 filed the 07^th November 2018 is no different in this regard. Their own evidence defeats that there has not been compliance of section 169 and 170 of the Act. There is clear compliance and adherence by the Minister which fact they each have sworn to in their respective affidavits. The contention they make against the determination of the Minister is unfounded and does not sustain otherwise, then that compliance of the law has been heeded to by him in the determinations made published.
    
20. It means certiorari does not lie in their favour as pleaded pursuant to section 169 and 170 of the Oil & Gas Act 1998. Nor does declaration lie that there has been ultra vires 169 (7) of the subject Act on the part of the Minister. Because that is not the evidence set out above. What is yet to arrive at the land Titles Commission remains and does not make the determinations and the actions of the Minister null and void. That will have a day of its own at the discretion of the parties here. Pending that what has been accorded by the Minister remains lawful and complies of the law and as such leaves no shred of illegality as contended against. Meaning that a review that is pending is at the discretion of the parties and does not make what the Minister has affected here illegal. And which would form the basis for any derivation of benefits and royalty illegal including the determinations. It is a discretion open in law to the plaintiffs and the defendants to take up and will not bar the operation of the Oil & Gas Act in the particulars set out above.
    
21. Mandamus does not lie to compel what the Minister has done by operation of law. He is entitled and has simply discharged what is required of him by the law. What should be clear after all these court proceedings to the plaintiffs is to benefit what is due them and restraint from proceedings that will deny them what is due them. This is one such proceedings quite apart to name a few, Tumu for Luhalipu Clan v Independent State of Papua New Guinea [2002] PGNC 137; N2190 (28 February 2002), where it was specifically stated, “Intend of Parliament here was to allow for landowners to agree on both entitlement and distribution of equity and royalty benefits from any petroleum project after the Coming into force of the Act. Ailing any such agreement the Minister for Petroleum is given a discretion to make the necessary determinations having regard to the matters set out in the Act.
    
22. Whether equity and royalty grants under ss.167 and 168 of the Act are interests in land or grants from the State? – Equity and royalty benefits are grants from the State but to project area landowners – If these benefits are grants from the State, whether land ownership disputes should prevent distribution of such grants? – Any landownership dispute has the effect of preventing any distribution of such grants until the dispute is resolved either by agreement of the parties or the proper authority – Oil and Gas Act 1998, ss.167 – 179 – Land Titles Commission Act ss.15A, 15(1) – Land Disputes Settlement Act s.66 – Land Act 1996 s.12.”
    
23. A very relevant and related proceeding also is OS No. 85 of 2020 Wolutou Incorporated Land Group v David Manau Secretary Department of Petroleum & Energy & Hon Kerenga Kua Minister for Petroleum & Energy & Dr Ken Ngangan Secretary Department of Finance & KC Paonga Acting Chief Commisisoner land Titles Commission & Hon John Rosso Minister for Lands and Physical Planning & The Independent State of Papua New Guinea & Joshua Turaha and Busunae Posou of Isewari Bubuku Gohu Clan & Isewari Bubuku Gohu Incorporated land Group & Paul Sapake, Jason Tirime, Yaxie Yakoria and Nelson Yekili of Imawe Bogasi Clan & Toale Hongiri Incorporated Land Group, Tiasapi Incorporated Land Group and Yenidou Bogasi Incorporated Land Group & Dikala Yawewe, Clan Chief, Yahapu Kaiai Nogolu Incorporated land Group & Limpia Sayabe, Deputy Chairman, Yahapu Kaiai Nogolu Incorporated Land Group And in the matter of two cross claims The seventh to the tenth defendants v The Plaintiff and the First to sixth Defendants (06^th April 2021).
    
24. What was observed there, material in its application here is that review stemming from the Supreme Court for the land Titles Commission to sit would settle customary ownership of customary land. But in my view that did not bar what the Minister did by the operation of the relevant sections set out above. Because there was no order specific that any payment originating from the sections set out of the Oil and Gas Act were injuncted or restraint until a formal hearing of the land Titles Commission as ordered by the Supreme Court. What is derived are grants and royalty by law and must be accorded the People. That is the spirit of the Oil & Gas Act. Which has been complied by the Minister his determination stands in law. And he has made payments fairly and equitably from the material that has been placed before him. He has not left out one group for a completely new group or individuals. It is not in his interest to do that; money must be accounted for as it is public money. And consequences of non-compliance are there in law particularly criminal law, Avini v The State [1997] PNGLR 212. The plaintiffs have not discharged to vitiate in their favour. Their case here has no legs forward.
    
25. Judicial review is about procedure, Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005) and here it has not been shown that procedure has been violated under the Oil & Gas Act by the Minister in his determination. The plaintiffs in both cases have not discharged the balance of preponderance on the assertions that they make. Their actions are without merit and dismissed forthwith with Costs following.
    
26. In passing, litigation has become rampant and contagious in proceedings emanating from major projects that are beneficial to the Nation its people, especially the People immediate to the project as here. But benefits there are detained in custody because of actions of the like portrayed here. Litigations without course set for the litigants, misery in their lives, gain for the lawyers, and firms must be stopped, if real development in major projects of Oil gas and petroleum is to materially, touch the lives of all our people of our blessed Nation of Papua New Guinea, it ought to be the heart of all to stop. Money has demarcated boundaries between grandfather and father, grandmother and mother, brother and sister, clansmen, and tribesmen, hurt has distilled its web so much so that, neighbour is not seeing eye to eye with those who are over the next plain, valley, mountain, riverside or swamp. The time has come to rethink our course in matters of this nature. We stand to gain, or fall, the choice is ours for tomorrow.
    
27. The formal orders of the Court are:
    
    • (i) The Notice of Motion in both cases OS (JR) 418 of 2018 and OS (JR) 421 of 2018 are without merit.
      
    • (ii) Both are denied in their entireties respectively and are dismissed forthwith.
      
    • (iii) Costs will follow the event forthwith in each case.
      

Orders Accordingly.

__________________________________________________________________

Haiara’s Legal Practise : Lawyer for the Plaintiffs

Tiwey Lawyers : Lawyer for the Third Defendants

Office of the Solicitor Generals: Lawyer for First, Second, Fourth Defendants