Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Todiai v Walters Farmers Association (WFA) [2021] PGNC 646; N9915 (14 December 2021)

N9915

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 83 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN:
GREGORY TODIAI FOR HIMSELF AND AS A CLAN LEADER FOR LIMUT CLAN AND RAYMOND TOABOLI FOR HIMSELF AND AS CLAN LEADER OF MARNAI GURAMWAN CLAN BOTH ALSO FOR AND ON BEHALF OF THE 529 NAMED PLAINTIFFS OF 16 WARDS OUT OF THE 17 WARDS/VILLAGES OF LAK (EAST) AND KANDAS (WEST) AREA SITUATED WITHIN THE KONOAGIL LOCAL LEVEL GOVERNMENT (LLG) AREA OF NAMATANAI DISTRICT,
NEW IRELAND PROVINCE
First Plaintiffs

AND:
HONOURABLE JAMES PANDI FOR HIMSELF AND AS LLG PRESIDENT OF KONOAGIL RURAL LOCAL LEVEL GOVERNMENT ALSO FOR AND ON BEHALF OF THE 17 NAMED WARD COUNCILLORS, NAMATANAI DISTRICT,
NEW IRELAND PROVINCE
Second Plaintiffs

AND:
NEW IRELAND PROVINCIAL GOVERNMENT
Third Plaintiff

AND:
WALTERS FARMERS ASSOCIATION (WFA)
First Defendant

AND:
LAKA FOREST DEVELOPMENT LIMITED 1-100201
Second Defendant

AND:
KONOAGIL AGRI DEVELOPMENT LIMITED 1-100198
Third Defendant

AND:
MILLION PLUS CORPORATION LIMITED 1-79119 THE DEVELOPER OF THE KONOAGIL INTERGRATED AGRICULTURE (OIL PALM) PROJECT, NAMATANAI DISTRICT, NEW IRELAND PROVINCE
Fourth Defendant

AND:
DAVID DOTAONA IN HIS CAPACITY AS THE CHAIRMAN OF THE BOARD OF THE NATIONAL FOREST AUTHORITY AND HIS COMMITTEE
Fifth Defendant

AND:
TUNO SABUIN, MANAGING DIRECTOR OF
PAPUA NEW GUINEA FOREST AUTHORITY
Sixth Defendant

AND:
REGISTRAR OF INCORPORATED LAND GROUPS,
DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Seventh Defendant

AND:
GUNTHER JOKU, MANAGING DIRECTOR,
CONVERVATION ENVIRONMENT PROTECTION AUTHORITY
Eighth Defendant

AND:
FRANCIS DAINK, ACTING SECRETARY,
DEPARTMENT OF AGRICULTURE AND LIVESTOCK
Nineth Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Tenth Defendant

Kokopo: Suelip AJ
2021: 6^th October & 14^th December

JUDICIAL REVIEW – substantive hearing – class action – judicial review of certain decisions of defendants – prior leave granted – grounds for judicial review considered – invalid grounds dismissed – grounds must challenge the decision-making processes of public authorities – all grounds dismissed – cost for defendants

Cases Cited

Sir Julius Chan v. Ombudsman Commission [1988] PNGLR 171
Ombudsman Commission v. Peter Yama (2004) SC747
Geoffrey Vagi v. Gary Baki & ors [2012] N4809
Bewani Oil Palm Plantation Ltd v. David Dotaona & 4 ors [2019] N7761
Giregire Estate Ltd v. Barava Ltd (2016) N6473
Peter Ilau & Anor v. Raga Kavana & ors [2008] N3371

Legislation

Forestry Act 1991
Forestry Act (Amendment) Act 2000
Environment Act 2000
Land Groups Incorporation (Amendment) Act 2009

Counsel

N Mirou, for the First, Second and Third Plaintiffs
G Purvey, for the First, Second, Third and Fourth Defendants
S Mitige, for the Fifth and Sixth Defendants
E Takoboy, for the Seventh, Nineth and Tenth Defendants
J Issack, for the Eighth Defendant

DECISION ON JUDICIAL REVIEW

14^th December, 2021

1. SUELIP AJ: The substantive review was heard on 6 October 2021 after leave for judicial review was granted on 15 March 2017. The review is contested by all the defendants.

2. This is my decision on the substantive review.

Background

3. The plaintiffs are allegedly the majority legitimate landowners of Wards 1 to 10 in Lak on the east coast and Wards 11 to 17 in Kandas on the west coast areas of Konoagil Rural Local Level Government in the Namatanai District of New Ireland Province. They are seeking a review of the decision of the fifth and sixth defendant in granting a Forest Clearing Authority (FCA) to the third defendant. They are also seeking a judicial review of the decision of the seventh defendant in issuing ILG certificates to certain clans, which clans are allegedly a minority group member of the Konoagil area. Further, the plaintiffs are seeking a judicial review in issuing an Environment Permit to the third defendant. The third defendant is purportedly owned by the minority plaintiffs and had entered into agreement for a large-scale oil palm project on customary land of the Konoagil area with the fourth defendant.

Preliminary application

4. At the commencement of the substantive hearing, counsel for the plaintiffs sought leave of the Court to insert their Notice of Motion filed 9 March 2017 (Document No. 14) into the Review Book. All the defendants’ objected to the plaintiff’s application for the primary reason that that Notice of Motion is a crucial document in a judicial review application and should already be in the Review Books. They say the plaintiffs have failed to make the proper application for leave to include their Notice of Motion. They also say that because it was filed prior to the granting of the leave for judicial review, it is obsolete. The plaintiffs, on the other hand, submitted that the inclusion of the Notice of Motion dated 9 March 2017 is not prejudicial to anyone, and the Court had already ruled that that motion is the one to be heard at the substantive review.

5. I considered the preliminary application and amongst other reasons, I ruled then that none of the parties will be prejudiced if the said Notice of Motion is to be included into the Review Books. Further, this trial had already commenced, after an extra ordinary delay. Another reason is that parties already have in their files this Notice of Motion and by then, the specific reviews sought by the plaintiffs are clear. For these reasons, I exercised my discretion and granted leave to the plaintiffs to include their Notice of Motion filed 9 March 2017 into the Review Books,

6. There is another reason which I will add. On 21 June 2021, that same preliminary application was raised by the fifth and sixth defendants. In my ex-tempore decision on 22 June 2021, I refused that application primarily because an earlier decision was made by Justice Anis on 13 September 2018 which had decided on this issue where he said the substantive review is pursuant to the plaintiff’s Notice of Motion filed 9 March 2021. The defendants therefore had known about that Notice of Motion. Hence, the said Notice of Motion was filed into the Review Book with leave of the Court.

Decisions sought to be reviewed

7. In the Amended Statement filed 2 August 2018, the main decisions sought by the plaintiffs to be reviewed are:

(i) The decision of the fifth and sixth defendants to grant a Forest Clearance Authority to the fourth defendant, Million Plus Corporation Limited (a foreign owned company duly incorporated under the Companies Act 1997) in partnership with the first, second and third defendants purporting to undertake large scale oil palm development project on customary land without the consent and authority of the legitimate landowners of Wards 1-17 Lak/Kandas region of Konoagil Rural Local Level Government area, Namatanai District.

(ii) The series of decisions of the seventh defendant to approve, grant and issue Certificate of Recognition of Incorporated Land Group to Suabo Pakan Clan of Kamiang Ward, Lenai village, Kamrai Lemen Clan of Kamiang Ward, Lenai village, Kamrai Sirbia Clan of Kamiang Ward, Mimias village and Marnai Clan of Ward 15, Kabosilaio village through the first, second and third defendants purporting to act for the landowners without the consent and authority of the legitimate landowners of Ward 1-17 Lak/Kandas region of Konoagil ILG area, Namatanai District contrary to statutory requirements and process under section 5 of the Land Incorporation (Amendment) Act 2009.

(iii) The decision of the eight defendants to approve and grant Environment (Waste Discharge) Permit to the second defendant Laka Development Limited in partnership with the first defendants, third defendants and the fourth defendants contrary to section 42 of the Environment Act 2000 and section 4 of the Environment (Prescribed Activities) Regulation 2002.

(iv) The decision of the nineth defendant, Department of Agriculture and Livestock to approve agricultural land use proposal submitted by the second defendant for Oil Palm project at Konoagil contrary to section 90A of the Forestry Act 2002.

Grounds for judicial review

8. In the same Amended Statement, the plaintiffs rely on the following grounds for the review:

(i) The first defendants and its directors namely Walter Schnaubelt a non-landowner from Mattalai LLG area, Philip Tuanusi of Ward 7 Pukunmal Clan (Lak) and Benson Malaibe of Ward 15 Watpi clan (Kandas) and the Second Defendants and Third Defendants respectively and its directors namely Philip Tuanusi and Benson Malaibe purported to act as duly appointed representatives of Wards 1-17 Konoagil Rural LLG area at Namatanai District undertook to conduct civil and ILG registration in contravention of the civil registration process pursuant to the Civil Registration Act and voluntary landowner recognition process as required by Section 5 of the Land Incorporation (Amendment) Act 2009.

(ii) The ninth defendant in approving Large Scale Integrated Agricultural proposal for Konoagil oil palm project by the second defendant on behalf of the first, second and fourth defendants failed to organize meetings with all the legitimate customary landowners of Konoagil Wards 1-17 and undertake due diligence on land use pursuant to Section 90B of the Forestry Act 1991 as amended.

(iii) As a result of (ii) above, the decision of the ninth defendants in approving the agricultural land use policy for the Konoagil Oil Palm Project is null and void and of effect.

(iv) The fifth and sixth defendants in granting a Forest Clearance Authority to the fourth defendant to develop the oil palm project on customary land belonging to the landowners of Konoagil Wards 1-17 failed to ascertain from the New Ireland Provincial Forest Management Committee’s recommendations highlighting majority customary landowners objections on the civil registration and ILG process, lack of majority consent and unresolved land boundary disputes relating to customary land on Konoagil LLG area pursuant to Section 90A and 90B of the Forestry Act 1991 as amended.

(v) As a result of (iv) above, the decision of the fifth and sixth Defendants in approving the Forest Clearance Authority for the Konoagil Oil Palm Project is null and void and effect.

(vi) As the seventh defendants granted Certificate of Recognition of Incorporated Land Group to Suabo Pakan Clan, Kamrai Lemen clan, Kamrai Sirbia Clan and Marnai Clan on submission by the first, second and third defendants failed to undertake due diligence on the lack of majority consent, land boundary disputes and legitimate customary landowners of Wards 1-17 Konoagil Rural LLG area pursuant to Section 5 of the Incorporated Land Groups (Amendment) Act 2009.

(vii) As a result of (vi) above, the decision of the seventh defendants in approving the recognition of Suabo Pakan Clan, Kamrai Lemen Clan, Kamrai Sirbia Clan and Marnai Clan for the Konoagil Customary Landowners is null and void and of effect.

(viii) The fifth, sixth, seventh, eighth and ninth defendants failed to consider that the second and third defendants is owned by only two same directors who do not hold shares for and on behalf of the majority of the principal landowners of the respective Wards 1-17 of Konoagil LLG area, without their consent but for themselves.

(ix) Further fifth, sixth, seventh, eighth and ninth defendants failed to consider that the first defendants is owned by only same directors who do not hold shares for and on behalf of the majority of the principal landowners of the respective Wards 1-17 of Konoagil LLG area, but for themselves.

(x) By Section 57 of the Constitution, person whose interest is affected by the decision of an authority, wither quasi-judicial, judicial or administrative are required to be accorded natural justice.

Reliefs sought

9. The reliefs sought by the plaintiff in the Amended Statement are the following:

(i) A declaration that the said decision of the Seventh Defendants was contrary to Section 5 of the Land Incorporation (Amendments) Act 2009 as no proper consent was obtained from the principal landowners of Wards 1-17 of Konoagil LLG area.

(ii) A declaration that the said decision was in direct breach of a proper identification of all principal landowners of Wards 1-17 of Konoagil LLG area with no proper consent obtained.

(iii) An order of mandamus directed to the Fifth and Sixth Defendants to revoke the Forest Clearance Authority issued to the Fourth Defendant, Million Plus Corporation Limited.

(iv) An order of mandamus directed to the Eighth Defendants to revoke the Environment Permit issued to the Fourth Defendant, Million Plus Corporation Limited.

(v) An order of mandamus directed to the Seventh Defendants to revoke the Certificate of Recognition issued in the name of Suabo Pakan Clan, Kamrai Lemen Clan, Kamrai Sirbia Clan and Marnai Clan for fraudulent and lack of majority consent of the legitimate landowners.

(vi) An order of Certiorari quashing the decision of the Fifth and Sixth Defendants.

(vii) An order of Certiorari quashing the decision of the Seventh Defendants.

(viii) An order of Certiorari quashing the decision of the Eighth Defendants.

(ix) An order of Certiorari quashing the decision of the Nineth Defendants.

The law

10. The power to review decisions of administrative bodies or public statutory authorities comes from various legislations. The first is Section 59 of the Constitution which states:

59. Principles of natural justice.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

11. Further, section 155(3) and (4) of the Constitution also gives the Supreme and National Court the power to review the decisions of administrative authorities. This section provides:

(3) The National Court—

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law, except where—

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

12. For the National Court, the provision for judicial review is found in Order 16 of the National Court Rules. The principles in relation to judicial review is that this Court has inherent power to review any exercise of judicial authority from any of the provisions above.

13. The review court must be differentiated from an appeal court. See Sir Julius Chan v. Ombudsman Commission [1988] PNGLR 171 and Ombudsman Commission v. Peter Yama (2004) SC747.

14. In Geoffrey Vagi v. Gary Baki & ors [2012] N4809, late Justice Kirriwom at paragraph 16 says and I quote:

“16. Judicial review is not concerned with the right or wrong of the action or decision but with the process, the process that was adopted and applied by the public body to reach its decision and whose action or decision that is sought to be reviewed...”

Evidence

15. The plaintiffs rely on the affidavits of James Pandi, Sylvester Potekamrai, Gregory Todiai, Raymond Toaboli, Bernard Koae, Nicholas Mirou, Wesley Joro, Isaac Lisetly, Buluk Yiason, Daniel Tomundi, Aknes Gil, Vilau Tom, Delin Tabuminit, Tom Isaac, Lipai Yason, Jack Rovat, Sir Julius Chan, Mathew Toiaunai, Richard Salot, Tobias Tolaen, Thaddeus Sioni, Peter Tonu, Mathias Daniel, Kenny Mission and Jacqueline Todiai.

16. Whilst the lawyers (Bernard Koae & Nicholas Mirou) affidavits generally depose of legal matters including their correspondences to various authorities, the others are landowners’ affidavits where they raise concerns and issues about clan membership, land ownership, formation of the ILGs, their lack of consent and mostly their objections to the involvement of the first, second, third and fourth defendants in the large-scale oil palm project which is to take place on their customary land. The affidavits of Buluk Yiason and Daniel Tomundi depose of the continuation of operations by the third defendant despite the restraining orders of the Court on 15 March 2017 to stop work beyond the 33,000 hectares within the Konoagil LLG customary land area. Some affidavits depose of the harassment, assaults and involvement of the police and other locals to support the first four defendants.

17. The fourth defendant relies on the affidavit of Eric Wong, which is found in Volumes 3, 4 and 5 of the Review Books. This affidavit deposes amongst others of the steps taken to obtain the necessary approvals for the project.

18. The fifth and sixth defendants rely on the affidavit of Magdalene Maihua where she gives evidence that the proper procedures were followed after an application for a Forest Clearing Authority was lodged with the Papua New Guinea Forest Authority.

Consideration on grounds for review

19. There are ten (10) grounds of review. At first glance, grounds (iii), (v), (vii) do not constitute valid grounds for judicial review. In Giregire Estate Ltd v. Barava Ltd (2016) N6473, the Court dismissed similar grounds for being invalid grounds. For ground (x), it is not a proper ground. It is a general statement that lacks any particulars or pleadings. For this reason, grounds (iii), (v), (vii) and (x) are dismissed.

20. The first ground of review is this. The first defendants and its directors namely Walter Schnaubelt a non-landowner from Mattalai LLG area, Philip Tuanusi of Ward 7 Pukunmal Clan (Lak) and Benson Malaibe of Ward 15 Watpi clan (Kandas) and the Second Defendants and Third Defendants respectively and its directors namely Philip Tuanusi and Benson Malaibe purported to act as duly appointed representatives of Wards 1-17 Konoagil Rural LLG area at Namatanai District undertook to conduct civil and ILG registration in contravention of the civil registration process pursuant to the Civil Registration Act and voluntary landowner recognition process as required by Section 5 of the Land Groups Incorporation (Amendment) Act 2009.

21. The issue stemming from this ground is whether the first, second and third defendants’ action to conduct civil registration and ILG registration is contrary to the civil registration process in the Civil Registration Act and voluntary landowner registration process under section 5 of the Land Groups Incorporation (Amendment) Act 2009?

22. This is an allegation against the first, second and third defendants who are business entities. They are not public bodies whose decisions can be reviewed judicially. Further, this issue does not affect the application process and the requirements under the Civil Registration Act, nor does it attack the process under the Land Groups Incorporation (Amendment) Act 2009. This issue also concerns the legitimacy of who the rightful landowners are, and this Court lacks the jurisdiction to deal with customary landownership. For these reasons, this ground of judicial review is dismissed.

23. The second ground for judicial review is the nineth defendant in approving Large Scale Integrated Agricultural proposal for Konoagil oil palm project by the second defendant on behalf of the first, second and fourth defendants failed to organize meetings with all the legitimate customary landowners of Konoagil Wards 1-17 and undertake due diligence on land use pursuant to Section 90B of the Forestry Act 1991 as amended.

24. The issue arising from this ground is whether the nineth defendant in approving Large Scale Integrated Agricultural proposal for Konoagil oil palm project by the second defendant on behalf of the first, second and fourth defendants failed to organize meetings with all the legitimate customary landowners of Konoagil Wards 1-17 and undertake due diligence on land use pursuant to Section 90B of the Forestry Act 1991 as amended.

25. Section 90B of the Forestry Act 1991 provides:

90B. DEALING WITH APPLICATIONS FOR AGRICULTURAL OR OTHER LAND USE.

(1) if the Board determines that an application under Section 90A is in the prescribed form and contains all relevant particulars, it shall–

(a) by written notice consult with any government body that has, in its opinion, an interest in the grant of the application or that has any jurisdiction in the area to which the application relates; and

(b) arrange for public hearings at which government bodies and the private sector may be heard; and

(c) prepare, not less than seven days prior to the hearings referred to in Paragraph (b), a report and summary of matters associated with the application and the Board’s consultation under Paragraph (a).

(2) Notice of an application and a public hearing in respect of it shall be given by the Board by publication in the prescribed form–

(a) in the National Gazette; and

(b) in a newspaper circulated nationally; and

(c) in a newspaper circulated in the province in which the area, the subject of the application, is situated (if any) and by a radio broadcasting service that specifically services the province (if any).

(3) A notice under Subsection (2) shall specify the date of the hearing not less than 28 days from the date of publication of the notice.

(4) The Board shall appoint a person to be the Chairman of the hearing who shall conduct a hearing, as he thinks fit, and such hearing shall be held at or as near as practicable to the proposed agricultural or other land use project site.

(5) A person may, on payment of the prescribed fee, inspect and make copies of the summary referred to in Subsection (1)(c).

(6) Upon the completion of the hearing under Subsection (4), the Chairman of the hearing shall refer the application and a summary of the hearing to the Provincial Forest Management Committee who shall–

(a) consider and evaluate the application and the summary of the hearing; and

(b) thereafter make recommendations to the Board.

(7) An evaluation of an application by the Provincial Forest Management Committee under Subsection (6) shall be made taking into account–

(a) the National Forest Policy; and

(b) any relevant Provincial Government policies provided they are not inconsistent with the National Forest Policy; and

(c) the commercial viability of the project including the financial resources of the applicant, the past performance of the applicant in agriculture or the proposed land use and other projects, analysis of projected cash flows and the anticipated net benefit to the resource owners and to the State; and

(d) any other matters that the Provincial Forest Management Committee considers relevant.

(8) In making an evaluation under this Subsection (7), the Provincial Forest Management Committee may request the assistance of the National Forest Service and of any relevant Department.

(9) Where the Provincial Forest Management Committee, after having considered and evaluated an application, is of the opinion that it is satisfactory, it shall recommend to the Board to approve the application for a conversion of the forest to agriculture or other land use.

(10) If the Provincial Forest Management Committee is not satisfied with the application it shall inform the Board accordingly together with reasons for its decision and the application shall be rejected.

(11) The Board shall inform the applicant of the rejection of the application and the reasons therefor.

(12) If the Board is satisfied with the recommendation under Subsection (9) and the outcome of the public hearing under Subsection (4), the Board may recommend to the Minister to recommend to the National Executive Council to endorse the application for a conversion of the forest to agriculture or other land use in respect of the project area.

(13) If the Board is not satisfied with the recommendation or the outcome of the public hearing or both, it shall reject the application and advise the applicant that the application has been rejected and giving the reasons for the rejection.

(14) When the Minister receives the recommendation from the Board under Subsection (12), he shall refer the application together with the recommendation from the Provincial Forest Management Committee and the Board and all its evaluation reports, certificates of approvals from all relevant Departments and a summary of the public hearing to the National Executive Council.

(15) The National Executive Council shall consider the application and other papers referred to it under Subsection (14) and shall direct the Minister to– (a) endorse; or (b) reject, the application and if the application is rejected it shall state the reasons for the rejection.

(16) The Minister shall– (a) comply with a direction under Subsection (15); and (b) advise the Board of the direction.

(17) If the National Executive Council does not endorse the project, the Board shall inform the applicant and the Provincial Forest Management Committee of the decision of the National Executive Council and the reasons for the rejection of the application.

(18) On the receipt of the advice from the Minister that the National Executive Council has endorsed an application, the Board shall call for tenders only from registered forest industry participants by advertisement in Papua New Guinea or abroad in such a manner considered by the Board likely to be most effective and specifying a date on or before which proposals for the forest clearing operation shall be lodged.

(19) An applicant for the proposed agricultural or other land use project or any related person or corporation as that expression is defined in the Companies Act 1997 is prohibited from tendering for the project providing that in the event no tenderers are received or they are, in the Board’s opinion, commercially unsatisfactory, then in such a case, the Board may invite the applicant to carry out the forest clearing operation and, if the applicant agrees, the applicant shall then be deemed for the purposes of Section 90(b) to be the successful tenderer.

(20) The successful tenderer shall enter into the prescribed Sales and Purchase Agreement with the customary owners which agreement shall provide for the purchase, harvesting, processing or marketing of timber and other forest products and which agreement shall be subject to the grant of a forest clearing authority by the Board.

(21) The Board shall, on the completion of the sales and purchase agreement, grant to the applicant an authority to carry out an agricultural or other land use development which authority shall–

(a) be in the prescribed form; and

(b) require a performance bond in accordance with Section 98 for an amount specified in the authority; and

(c) specify such other conditions as are laid down by the Board.

(22) A grant of a forest clearing authority shall–

(a) be in the prescribed form; and

(b) in order to ensure that the planned use by the successful applicant referred to in Section 90(A)(1) actually takes place, provide that any forest clearing operation shall be authorized in four phases, each phase–

(i) shall represent approximately one quarter of the total area to be cleared under a forest clearing authority; and

(ii) shall contain such conditions as are determined by the Board; and

(iii) shall be subdivided into blocks for clearing of a maximum 500 hectares unless the Board considers that the maximum of 500 hectares is inappropriate in the circumstances in which case it may increase or decrease the maximum clearance figure; and

(c) provide that the successful tenderer shall comply with the approved implementation schedule determined by the Department responsible for agriculture and livestock matters or other relevant Department; and

(d) provide that a further phase under the same forest clearing authority may only be granted for the same purposes of forest clearance for agricultural or other land use where all conditions relating to an agricultural development plan or other land use implementation schedule have been satisfied; and

(e) provide that the rights under the authority may be suspended where the planned land use by the applicant referred to in Section 90(A)(1) is not progressing according to, or meeting the set standards of, the Department responsible for agriculture and livestock matters or other relevant government agency or instrumentality’s approved implementation schedule; and

(f) require a performance bond in accordance with Section 98 for an amount specified in the authority; and

(g) specify such other conditions as are laid down by the Board.

(23) If an application for an agricultural or other land use development is at any stage and for any reason rejected, the applicant may at any time make a fresh application together with the prescribed application fee.

26. In the above provision, there is no requirement for the nineth defendant to organize meetings with any customary landowners to ensure due diligence is conducted on land use. Nevertheless, section 90B(1)(b) to (6) of the Forestry Act 1991 provides for the Department of Agriculture and Livestock to conduct public hearings near the proposed agricultural or other land use site where landowners, government agencies and private sectors can attend and participate as to what their views are about a proposed project. From the evidence in Eric Wong’s affidavit at Tab 42 of the Review Book, Volume 3 at paragraph 11, there was a road show, or a public hearing conducted at Namatanai Lodge where the Agricultural Feasibility Study and Agriculture Development Plan were on display for the public to view and make objections. What was discussed at the public hearing are captured in the minutes taken the nineth defendant at page 01829 in Volume 5 of the Review Book.

27. Therefore, there is no such requirement for the nineth defendant under section 90B to organize meetings with all the legitimate customary landowners of Konoagil from wards 1 to 17. The nineth defendant in fact complied with the requirement in section 90B(1)(b) to (6) where it held a public hearing to hear from various entities regarding the proposed project on 19 and 20 August 2014. This ground for review is dismissed.

28. The fourth ground of judicial review is that the fifth and sixth defendants in granting a Forest Clearance Authority to the fourth defendant to develop the oil palm project on customary land belonging to the landowners of Konoagil Wards 1-17 failed to ascertain from the New Ireland Provincial Forest Management Committee’s recommendations highlighting majority customary landowners objections on the civil registration and ILG process, lack of majority consent and unresolved land boundary disputes relating to customary land on Konoagil LLG area pursuant to Section 90A and 90B of the Forestry Act 1991 as amended.

29. The issue is whether the fifth and sixth defendants acted ultra vires their powers and unlawfully approved recommendations of the New Ireland Provincial Forest Management Committee by issuing the FCA despite the objections and the evidence of lack of ILG certification pending at the offices of the seventh defendant.

30. Section 90A of the Forestry Act 1991 as amended provides: -

90A. A LARGE SCALE CONVERSION OF FOREST TO AGRICULTURAL OR OTHER LAND USE.

(1) A person may make application in the prescribed form and accompanied by the prescribed application fee for an authority to carry out any agricultural or

other land use development (other than roadline clearing on an existing forested area) where the amount of proposed clearance of natural forest for the project is greater than 50 hectares in total.

(2) An application under Subsection (1) shall not be made where the proposed project is within a Forest Management Agreement Area, Timber Rights Purchase Agreement Area or Local Forest Area except with the approval of the Board and, where applicable, the holder of any relevant Timber Permit.

(3) An application under Subsection (1) shall contain–

(a) a detailed development plan, evaluation report and certificate of approval from the Secretary of the Department responsible for agriculture and livestock matters or the Secretary of any relevant Government Department or such other evaluation reports and certificates as the Board considers necessary; and

(b) a copy of the relevant State Lease or other documentation relating to other type of land tenure appropriate for the project; and

(c) an implementation schedule for the complete agricultural or other land use project showing the precise areas and proposed rate of harvesting to be carried out by an independent contractor appointed by the Forest Authority and successive land use development approved in writing by the Departmental Head of the Department responsible for agriculture and livestock matters or the Secretary of the relevant Government Department or, where relevant, the Provincial Government including detailed start and completion dates of all activities associated with the project; and

(d) details of costs of the agricultural or other land use project and a certificate from a bank or financial institution which is satisfactory to the Managing Director certifying that the full costs of funding the project will be available to the applicant; and

(e) a map and description of the project area in respect of which the application is made showing any areas of slope in excess of 30° or any other areas which are unsuitable for agricultural or other land use development and any areas important for conservation; and

(f) a verification of ownership and the consent of each resource owning clan agent (or incorporated Land Groups if they have been formed) within the project area, which has been signed in the presence of a Village Court Magistrate or land mediator in the prescribed form; and

(g) supporting letters from any other relevant Department authorities or relevant industry body regarding the appropriateness of the design and implementation of the proposed project; and

(h) an approval in writing from the office or Department responsible for environment and conservation matters of the environment impact statement submitted by the applicant to that office or Department; and

(i) details of equipment and manpower suitable for the development of the proposed project and evidence of past experience in such developments; and

(j) such other particulars as are prescribed.

31. Section 90A will be discussed abit later but the procedure in which such large-scale project are considered for a Forest Clearing Authority is discussed in Bewani Oil Palm Plantation Ltd v. David Dotaona & 4 ors [2019] N7761. In that case, the Court considered the grant of a FCA by the National Forest Board and said at paragraph 25:

“Section 90B of the Forestry Act, states that when the Committee is considering an application for an FCA it must be in the prescribed form and contain all the relevant particulars. The Board then prepares a report of the application and refers it to the Committee. The Committee evaluates the application and makes a recommendation to the Board. If the Committee is satisfied with the application, then it recommends to the Board to approve the application after considering the Committee’s recommendation, they then advise the applicant accordingly. On the other hand, if the Committee rejects the application. They are required by law to inform the Board of the decision to reject together with the reasons for rejection. The Board then has limited powers to consider the rejection. The Board is required by law to inform the applicant of the reasons of the decision and the application is then rejected”.

32. Section 90B (6) of the Forestry Act 1991, requires the Provincial Forest Management Committee to consider and evaluate the application for FCA along with the summary of the public hearing. After deliberations, the committee is required to make recommendations to the Forestry Board. In this case, the Minutes of PFMC meeting held on 21 April 2015 are attached as Annexure B to the affidavit of Magdalene Maihua found at Tab 45 in volume 6 of the Review Book, where documents and verbal presentations were considered, and the committee endorsed the FCA application conditionally. It is then a matter for the Forestry Board to ensure compliance with the conditions.

33. One of the requirements under section 90A(3)(f) is Form 267 in the Forestry Regulation. This form is titled “Verification of Ownership and Consent of Landowners”. Section 90A(3)(f) states:

(f) a verification of ownership and the consent of each resource owning clan agent (or incorporated Land Groups if they have been formed) within the project area, which has been signed in the presence of a Village Court Magistrate or land mediator in the prescribed form; and...

(Underlining mine)

34. It is not necessary for the landowners to have ILGs. In the various Forms 267 attached to the affidavit of Eric Wong, the landowners completed each form with consent from a clan agent, witnessed by a land mediator. Hence, in this case, the committee had endorsed the FCA application subject to certain conditions and one of the conditions is that the ILG Certificates be issued for the areas as required by the Land Groups Incorporation Act. This is a matter for the landowners themselves to apply for the certificates. As it is, the Act does not specifically require ILG certificates for an FCA to be granted. A clan agent’s consent is sufficient. Therefore, there is evidence that the fifth and sixth defendants followed the correct procedures in approving the FCA with conditions despite the lack of ILGs certification which is not a requirement under the ILG Act. This ground is also dismissed.

35. The fifth ground for judicial review is the seventh defendants granted Certificate of Recognition of Incorporated Land Group to Suabo Pakan Clan, Kamrai Lemen clan, Kamrai Sirbia Clan and Marnai Clan on submission by the first, second and third defendants failed to undertake due diligence on the lack of majority consent, land boundary disputes and legitimate customary landowners of Wards 1-17 of Konoagil Rural LLG area pursuant to Section 5 of the Incorporated Land Groups (Amendment) Act 2009.

36. The issue is whether the seventh defendant considered the lack of consent and objections based on the boundary disputes and acted ultra vires his powers to approve Recognition of ILG to Suabo Pakan Clan (1499 hectares) Kamrai Lemen Land Group Inc (917 hectares), Kamrai Sirbia Clan (2781 hectares) and Marnai Land Group Inc (991 hectares), a minority group, pursuant to Section 5 of the Land Groups Incorporation (Amendment) Act 2009.

37. Section 5 of the of Land Groups Incorporation Act provides:

5. MANNER OF RECOGNITION.

(1) Subject to Section 6, on application by or on behalf of the group the Registrar may recognize a customary group of persons as an incorporated land group, by issuing to it a certificate of recognition.

(2) The application shall–

(a) be in the prescribed form; and

(b) be accompanied by a copy of the proposed constitution, and the applicants shall, if so required by the Registrar, supply–

(c) a list of all members of the group; and (d) such further information as the Registrar requires.

(3) Recognition shall not be refused to a group simply because–

(a) the members are part only of a customary group or are members of another incorporated land group; or

(b) the group includes persons who are not members of the primary customary group, if the Registrar is satisfied that those persons regard themselves, and are regarded by the others, as bound by the relevant customs of the primary customary group; or

(c) the group is made up of members of various customary groups, if the Registrar is satisfied that the group possesses common interests and coherence independently of the proposed recognition, and share or are prepared to share common customs, or a combination of those circumstances.

(4) The Registrar shall refuse recognition if he is satisfied that the group characteristics are so temporary, evanescent or doubtful that the group does not have a corporate nature.

(5) Notwithstanding the preceding provisions of this section, the Registrar may recognise as an incorporated land group a group consisting only of incorporated land groups if he is satisfied that–

(a) the member groups possess common interests and coherence independently of the proposed recognition, and share or are prepared to share common customs; and

(b) the association between the groups represents a customary form of organization.

(6) The Registrar may refuse recognition if he is satisfied that–

(a) the group is not a customary land-owning group and has no real connection with such a group; or

(b) no purpose of this Act is likely to be served to a significant extent by recognition; or

(c) recognition is sought basically for a purpose not related to the purposes of this Act; or

(d) some other form of incorporation or of organization under some other Act would be more appropriate and effective.

(7) Except with the consent of the Minister, the Registrar shall not recognize a group by a name that, in the opinion of the Registrar, is undesirable, or is a name, or a name of a kind, that the Minister has directed the Registrar not to accept.

(8) The name of an incorporated land group shall end with the words “Land Group (Incorporated)” or “Land Group (Inc.)”.

(9) If the Registrar refuses recognition, he shall give a written statement to each applicant of his reasons for the refusal.

(10) A certificate of recognition shall set out the constitution of the group.

38. There is nothing in this provision to say that the Registrar should refuse to grant the Recognition of an ILG due to lack of consent and objections based on the boundary disputes. However, it worthy to note sections 5A and 5B of the Land Groups Incorporation (Amendment) Act 2009, where it states the following:

5A. DETERMINATION OF DISPUTE BY REGISTRAR

If it appears to the Registrar that there are internal disputes relating to the identity of the group’s representatives, officers or membership, the Registrar shall determine whether to —

(a) reject the application; or

(b) withhold the processing of the application until the Registrar is satisfied, based on subsequent evidence, that the internal dispute has been settled and then proceed to incorporate the applicants.

5B. REGISTRAR TO CAUSE NOTICE OF APPLICATIONS

(1) In addition to the powers given under Section 33 the Registrar shall –

(a) Cause notice of all applications for recognition made under Section 5 to be published in the National Gazette; and

(b) forward copies to –

(i) the district administrator in whose area the land group or any of the property claimed on behalf of the land group is situated; and

(ii) the village court within whose jurisdiction members of the group reside and the district administrator or the village court in receipt of such notice shall further disseminate notice of the application and particulars in such manner they think most likely to ensure that it is widely known to persons having knowledge of or an interest in the affairs of the land group or its members.

(2) The Registrar shall not issue a certificate of recognition unless he receives from the district administrator or a village court a confirmation notice of receipt of the documentation referred to in Subsection (1) and that they have complied with Subsection (1)(b).”

39. These provisions provide for the Registrar to consider whether to grant or reject applications and the steps he is to take. From the plaintiff’s evidence, Annexure “J2” to the affidavit of counsel for the plaintiffs at page 240 in the Review Books is a list provided by the seventh defendant showing the Konoagil LLG ILG applications where only the 4 named ILGs were recognised and issued ILG certificates. The cover letter from the seventh defendant in Annexure “J1” explained that whilst 20 applications were received, 4 ILG groups were issued ILG certificates, and 16 applications are pending for various reasons. However, there is no evidence from the plaintiff to show that the seventh defendant failed in following the correct procedure to grant the ILG certificates to the four ILGs. This ground is also dismissed.

40. The sixth ground for review is the fifth, sixth, seventh, eighth and ninth defendants failed to consider that the second and third defendants are owned by the two same directors who do not hold shares for and on behalf of the majority of the principal landowners of the respective Wards 1-17 of Konoagil LLG area, without their consent but for themselves.

41. The issue on this ground is whether the fifth, sixth, seventh, eighth and nineth defendants failed to consider that the second and third defendants is owned by the two same directors who do not hold shares for and on behalf of the majority of the principal landowners.

42. This ground does not challenge the decision-making process of the fifth, sixth, seventh and eighth defendants. It is not for the plaintiffs to evaluate the directorship and shareholding of private companies. Further, this ground does not plead how the said defendants failed in complying with a procedural requirement. This is therefore not a proper ground for review and is dismissed.

43. The last ground for judicial review is that the fifth, sixth, seventh, eighth and ninth defendants failed to consider that the first defendant are owned by the same directors who do not hold shares for and on behalf of the majority of the principal landowners of the respective Wards 1-17 of Konoagil LLG area, but for themselves.

44. The issue is whether the fifth, sixth, seventh, eighth and ninth defendants failed to consider that the first defendant is owned by the same directors who do not hold shares for and on behalf of the majority of the principal landowners.

45. Like the last ground, this is not a ground that challenges the decision-making processes of the named defendants. It also does not plead how the said defendants have failed to comply with a procedural requirement. The first defendant is an association, and its office holders do not affect the decision-making processes of the defendants. This is also not a proper ground for review and is therefore dismissed.

46. Having considered all the grounds for the review, I note that although the plaintiffs also sought to review the decision of the eight defendants to approve and grant Environment Permit to the third defendant, they do not specifically raise this ground they rely on in the Amended Statement.

47. In Peter Ilau & Anor v. Raga Kavana & ors [2008] N3371, late Justice Davani said at paragraph 19 and I quote:

“19. ... In Judicial Review proceedings, the originating summons must be supported a statement “... setting out..., the relief sought and the grounds on which it is sought.” (O.16 r.3(2)(a) and, subject to sub-rule (2) no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement (O.16 r.6(1). Therefore, the plaintiff must specifically raise grounds it relies on in the statement”...

48. As a consequence, the plaintiffs’ failure to raise this ground in the Amended Statement renders it no ground at all for review.

Summary

49. Essentially, all the grounds relied on by the plaintiffs are dismissed for reasons including being invalid or not proper grounds, lack of pleading or evidence and mainly because it does not challenge the decision-making process of the public authorities namely, the National Forest Authority who granted the FCA to the third defendant, the Office of Integrated Land Groups who issued ILG certificates to 4 allegedly minority clans and the Conservation Environment Protection Authority who issued the Environment Permit to the third defendant.

50. As all the grounds for the judicial review are dismissed, the reliefs sought in the nature of declarations and orders for mandamus and certiorari will not be granted.

51. So, the Orders of the Court are:

(i) This judicial review is refused.

(ii) Costs are for the defendants on a party/party basis to be taxed if not agreed.
________________________________________________________________
Eda Legal Services: Lawyers for the Plaintiffs
Young & Williams: Lawyers for the First, Second, Third and Fourth Defendants
National Forest Authority: Lawyer for the Fifth and Sixth Defendants
(In house)
Solicitor General: Lawyer for the Seventh, Nineth and Tenth Defendants
Lawama Lawyers: Lawyers for the Eighth Defendant