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Tomu v State [1996] PGNC 76; N1422 (21 March 1996)

N1422

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 83 of 1996

BETWEEN

SOSO TOMU
for and on behalf of LUHALIPU CLAN OF
SAMBERIGI SOUTHERN HIGHLANDS PROVINCE
First Plaintiff

AND

JIMMY KEROTIKI KINORU
for and on behalf of IMAWE KEWA CLAN KAIAM OF
NO. 2 VILLAGE, KIKORI GULF PROVINCE
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

WAIGANI: Andrew, J
18 & 21 March 1996

Andrew, J.: These are two applications heard together for orders that:

1. That Chevron Niugini Pty Ltd be joined as a defendant to this action.

2. That the following applicants be joined as second, third, fourth and fifth defendants respectively to this action:
   

(i) WINTON SATE for and on behalf of MUKAUL DIPAN Land Group (Inc) and others.

(ii) PETER MORO for and on behalf of MAKENA Land Group (Inc) of BAINA village.

(iii) CYRIL SAKIRU for and on behalf of MUSONERI Land Group (Inc.) of SIAWITI village.

(iv) PAUL TIMA for and on behalf of WAFI Land Group (Inc.) of SIAWITI village.

The applications are made under Order 5 Rule 8 and Order 5 Rule 3 of the National Court Rules.

The Plaintiff in this matter is seeking, by way of Originating Summons, various declarations that the Mining Act is invalid and unconstitutional: declarations that various parts of the Petroleum Act are invalid and unconstitutional as it applies to customary land owned by the Plaintiff; injunctions to restrain the defendant issuing licences to any developer to develop the oil located beneath the customary land of the plaintiffs; an injunction to restrain "the defendant and the developer not to apply the benefits of compensation due to the disputing parties until the determination of the Appeal and the substantive hearing of this motion".

The background of this matter relates to ‘The Gobi Project’ i.e. the discovery and development of oil fields in what is known as P.P.L. 161 and P.P.L. 56. The Plaintiff who claims to be a customary landowner within this region appears to be challenging the legality of the Petroleum Act in particular Section 5 therein that "all petroleum is the property of the State". The two relevant oil fields appear to be ‘Gobi Main’ and ‘Gobi South East’.

Briefly stated a party is granted a P.P.L. and if oil is discovered there is a declaration of location. The party may then be granted a P.D.L. (Petroleum Development Licence). There is a presumption that the holder of the P.P.L. will be granted the P.D.L. The Plaintiff is seeking to restrain the grant of both of these licences Chevron Niugini Pty Ltd is one of the parties involved in the P.P.L. and has been chosen as the operator and as the Planning and Pre-Unitisation Operator.

Clearly Chevron Niugini Pty Ltd have a very real interest in this matter. The injunction sought is to restrain the issue of a P.D.L. to them. The declarations seek to go to the whole structure and effect of the Petroleum Act. The orders if granted would cause enormous damage to the company. I am satisfied that it is clearly a necessary party.

ORDER

I order that CHEVRON NIUGINI PTY LTD be joined as the 6th defendant in these proceedings: O.S. 83 of 1996.

I am also satisfied that the four land owner groups are all parties who should also be joined as defendants in this matter. They were all parties in the recent hearing before the Lands Titles Commission and they were all awarded land ownership rights in respect of their own customary land within the proposed Gobi Petroleum area. The injunction sought in paragraph 9 of the Originating Summons seeks the State and the developer not to apply the benefits of compensation which are due to them. I am satisfied that they should properly be joined as defendants in these proceedings.

ORDER

I order that:

(i) WINTON SATE for and on behalf of MUKAUL DIPAN Land Group (Inc.) and Others, be joined as the second defendant in these proceedings, O.S. 83 of 1996.

(ii) PETER MORO for and on behalf of MAKENA Land Group (Inc.) of BAINA village, be joined as the third defendant in these proceedings, O.S. 83 of 1996.

(iii) CYRIL SAKIRU for and on behalf of MUSONERI Land Group (Inc.) of SIAWITI village, be joined as fourth defendant in these proceedings, O.S. 83 of 1996.

(iv) PAUL TIMA for and on behalf of WAFI Land Group (Inc.) of SIAWITI village, be joined as fifth defendant in these proceedings, O.S. 83 of 1996.

Lawyer for the Plaintiff: Soi & Associate Lawyers
Lawyer for the Defendant: Mr Kawi
Lawyer for the 1st Applicant/Defendant: Gadens Ridgeway
Lawyer for the 2nd Applicant/Defendant: Dennis Hauka & Associates