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Loowa v Pouru [2009] PGNC 219; N4029 (18 September 2009)

N4029

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 322 OF 2007 (JR)

BETWEEN:

Raphael Loowa, Andrew Kaliem, Steven Wisau & Titus O’Rou
in their capacities as landowners and as the four landowner representative of ILG of
Aitape Lumi Consolidated Forest Management Area (FMA)
Plaintiffs

AND:

Kanawi Pouru,
The Chairman and Team Leader of the State Negotiation Team
of the National Forest Board
First Defendant

AND:

Valentine Kambori,
The Chairman of the National Forest Board
Second Defendant

AND:

Joseph Sungi,
The Chairman of the Provincial Forest Management Committee
Third Defendant

AND:

The Independent State of Papua New Guinea
Fourth Defendant

AND:

Samas Limited
Fifth Defendant

Waigani: Injia, CJ
2009: 18th September

JUDICIAL REVIEW – review of procedures employed in negotiations for timber permit - main relief sought in application is an order in the nature of certiorari to quash decision of NFAB to include fifth defendant as preferred proponent of project - Excess of power (ultra vires), Error of law and abuse of power/unreasonableness of decision as major grounds of review – NFAB’s decisions reached following procedures set out under Forestry Act - grounds of review relating to issue of abuse of power and unreasonableness dismissed – s30, 67 – 70 Forestry Act, Order 16 r 1 & 5 National Court Rules.

Cases Cited:

Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122

Counsel:

P Mambei, for plaintiffs
A MacDonald, for first & second defendants
K Iduhu, for the fifth defendant

18th September, 2009

1. INJIA CJ: This is an application for judicial review made under O 16 of the National Court Rules (NCR). The application relates to the procedures employed in negotiations for a timber permit over the Aitape Lumi Consolidated Forest Management Area (FMA) which is situated in the Sandaun Province. The negotiations led to grant of Timber Permit to the fifth Respondent (Samas Ltd) by the State which is not the subject of this review proceeding. The application is contested by the first, second and fifth defendants.

2. Leave to apply for judicial review was granted on 8th August 2007. A Notice of Motion instituting the application for review was filed on 17th August 2007.

3. The application is supported by the affidavit of Mr Raphael Loowa sworn and filed on 12th June 2007 which is found on pages 40 – 82 of the Review Book ( RB 40-82), Supplementary affidavit of Mr Raphael Loowa sworn and filed on 12th June 2007 (RB 83-87), affidavit of Mr Ignas Mambei sworn and filed on 2nd July 2007 (RB 88-96), affidavit of Steven Wison Wisou sworn and filed on 18th July 2007 (RB 97-111)and a further affidavit of Mr Raphael Loowa sworn and filed on 25th September 2007 (RB 112-309).

4. The first and second respondents rely on the affidavits of Mr Kanawi Pouru sworn on 16th and filed on 18th June 2007 (RB 310-325), Supplementary affidavit of Mr Kanawi Pouru sworn and filed on 18th June 2007 (RB 326-332), Mr David Ipasi sworn and filed on 18th June 2007 (RB 333-335) and affidavit of Mr Kanawi Pouru sworn and filed on 28th September 2007 (RB 336-393).

5. The fifth respondent relies on the affidavit of Mr Yong Hin Siong sworn and filed on a date unknown in September 2007 (RB 394-411).

6. Counsel representing parties made oral submissions between December
2008 and February 2009 Counsel agreed to file written submissions for my consideration which they have done. I have considered them and I will deal with them in the course of my submissions. Counsel representing parties made oral submissions between December 2008 and February 2009 Counsel agreed to file written submissions for my consideration which they have done. I have considered them and I will deal with them in the course of my submissions.

Relief sought and Grounds

7. The relief sought as pleaded in the Amended Statement in Support filed on 11th July 2007 (Statement) which are repeated in the Notice of Motion filed on 17th August 2007 under O 16 r 5 are as follows:

"(1) An order that the second decision of the National Forest Board on the 03rd and 08th May 2007 to include Samas Limited as a third proponent for negotiations is null and void ab initio contrary to Forest Guidelines on issuing Timber Permits or evaluation procedures as set out under Sections 67, 68, 69 and 70 of the Forestry (Amendment) Act 1993 and further the decision was made without consent of the Land owners and the National Forest Board acted ultra vires the functions of the Provincial Forest Management Committee under Section 30 of the Act.

(2) An order in the nature of certiorari to bring to this Honourable Court the Second Decision of the National Forest Board dated 08th May 2007 and quash it.

(3) An order in the nature of mandamus to direct the Board to enforce its earlier decision dated 29th March 2007 to accept only the two (2) proponents namely Aitape Maju Ltd and Vanimo Forest Products Ltd to enter into negotiations with the State excluding the Samas Limited and to be recommended for the issue of the Timber Permit.

(4) An order that Samas Limited be removed as a short listed proponent to enter into negotiations with the State and if it had entered into negotiations then it must not be recommended for the issue of timber permit.

(5) An order that the Third Defendant be restrained from implementing the second Decision of the National Forest Board dated 8th May 2007.

(6) Alternate orders that the Minister’s and NFB recommendations to include a third proponent be referred back to the Provincial Forest Management Committee to evaluate and decide on the merits which of the rejected proponents shall be the third proponent."

8. The grounds upon which the relief is sought as pleaded in the Amended Statement are as follows:

"(1) That the second decision of the First and Second Defendants particularly the National Forest Board dated 08th May 2007 as indicated in a letter dated 16th May 2007 is illegal and null and void ab initio as it contravenes evaluation processes and procedures set out under Sections 67, 69, and 70 of the Forestry Act and further contradicts its earlier decision in Meeting No. 132 dated 26th March 2007 to accept two (2) proponents namely Aitape Maju Ltd and Forest Products Ltd as the only two proponents to enter into negotiations.

(2) The Second Defendant acted ultra vires the functions of the Provincial Forest Management Committee (Third Defendant) as provided by Sections 30, 67, 69 and 70 of the Forestry Act to make evaluation and assessment of project proponents or bidders in consultation with landowners and National Forest Services staff in which a decision has already been reached on the 27th March 2007 by the Second Defendant.

(3) The Second Defendant’s decision is irrational and improper as it is not in the best interest of the landowners and it was not consented and also not consented to it by the Provincial Forest Management Committee of which the Third Defendant represents."

Facts

9. The evidence before me in the form of affidavits is not contested. From this evidence I set out the undisputed facts of the case as I consider to be relevant to decide the issues raised by the grounds of review.

10. In mid 2006 the NFAB tendered the project. Project Proposals were submitted by various project developers to the NFAB. A total of eleven (11) developer companies submitted proposals. Amongst them were Aitape Maju Ltd, Samas Ltd and Vanimo Forest Products Ltd. Between February – June 2007, the PFMC convened meetings to deliberate on the proposals. The NFAB referred the project proposals to the PFMC for its consideration and recommendation to the NFAB.

11. The initial meetings of the PFMC were held on 15th, 19th and 20th February 2007. On the 15th February 2007, the PFMC by resolution No. 08/07 resolved to "recommend(s) Aitape Maju as the most preferred proponent followed by Vanimo Forest Products Ltd to undertake further negotiations in the view of negotiating a Project Agreement for the Aitape Lumi Consolidated FMA project." On 26th February 2007 the PFMC conveyed its recommendation to the NFAB by way of a formal submission. The submission was signed by Mr Joseph Fungi as Chairman (Administrator of Sandaun Province) and Mr Paul Anton (Provincial Forest Officer) as member. The submission was accompanied by other relevant documents including the Minutes of the PFMC Meetings of 15th, 19th and 20th February.

12. A Critical Review of the PMFC Meetings Minutes done by the Minster for Forests are set out in annexure A2 of Mr Pouru’s affidavit sworn on 28th September 2007. It sets out excerpts of the Minutes of the meetings of 19th and 20th February. These excerpts show that certain members of the PFMC expressed concern over the PFMA’s recommendation of only two (2) proponents. The Chairman is also quoted as expressing his concern at the meeting of 20th as follows:

"1. The Chairman stressed that the decision should be made when members were fully satisfied. The Chairman insisted that they should consider having 3 or 4 proponents reasoning that the Vanimo Forest Product on the second short list is already on the ground in Vanimo and it has not fulfilled certain permit obligations. When more proponents are recommended, it will provide room for competition in the Sandaun Province if one of them other than Vanimo Forest Products is considered." (see page 5 of Critical Review) which appears at RB 351).

13. There is no evidence if the person who Chaired the Meeting of PFMC on 20th February was the same person who chaired the meeting on 15th February and whether the Chairman who signed the PFMC submission on 27th February was the same person who chaired the meetings on 15th, 19th and 20th.

14. The information on what transpired after the NFAB received the PFMC’s submission of 26th February 2007 are set out in Mr Pouru’s affidavits. He states that the Board in its meeting of 29th March 2009 considered the PFMC’s submission and resolved to refer these two companies as proponents to enter into "back to back" negotiations with a negotiation team to be established by the board, to enter into a project agreement. The matter was referred to the Minster under s 70 (1) of the Act.

15. On 20th April 2007, the Minister’s response came in the form of a Form 97 (s.70 (a), Reg 100) Statement. The form was accompanied by a Critical Review of the PFMC meeting of 5th, 19th and 20th February. A copy of the Critical Review is set out in annexure A2 of Mr Pouru’s affidavit sworn on 28th September 2007. It sets out excerpts of the Minutes of the meetings of 19th and 20th February. These excerpts show that certain members of the PFMC expressed concern over the PFMA’s recommendation of only two (2) proponents. The Chairman is also quoted as expressing his concern at the meeting of 20th as follows:

"1. The Chairman stressed that the decision should be made when members were fully satisfied. The Chairman insisted that they should consider having 3 or 4 proponents reasoning that the Vanimo Forest Product on the second short list is already on the ground in Vanimo and it has not fulfilled certain permit obligations. When more proponents are recommended, it will provide room for competition in the Sandaun Province if one of them other than Vanimo Forest Products is considered." (see page 5 of Critical Review) which appears at RB 351).

16. Apart from other information at hand as Minister for Forests, the Minister based his decision on his local knowledge of the area as the member for the Aitape-Lumi electorate and also complaints received from various sources. This is inferred from the matters set out in the Critical Review report and Mr Pouru’s affidavits. The Minister expressed the view that there should be three proponents of the project, listed in the following order:

1. Samas Ltd

2. Aitape Maju Ltd

3. Vanimo Forest Products Ltd.

17. Mr Pouru states the Board at its meetings held on 3rd and 8th May 2007 considered the Minister’s response and resolved to reconsider its earlier resolution and voted 6-2 in favour of including Samas Ltd in the "back to back" negotiations for a project agreement. Those negotiations were concluded on 19th June 2007. A verified draft agreements were then sent to PFMC for its consideration. On 22nd June 2007, the PFMC confirmed the draft agreements "without adverse comment" and referred the matter back to the NFAB. On 5th July 2007 the NFAB considered the draft Agreements and chose Samas Ltd as the project developer to enter into a project agreement with the State. A project agreement was later executed between the State and Samas Ltd.

18. I accept this evidence as a general version of what transpired.

Statutory provisions under consideration

19. Sections 30, 67-70 of the Forestry Act state as follows:

"30. Functions of a Provincial Forest Management Committee.

(1) The functions of a Provincial Forest Management Committee are—

(a) to provide a forum for consultation and co-ordination on forest management between national and provincial governments, forest resource owners and special interest groups; and

(b) to undertake continuous consultation with the Chairman of the Provincial Forestry Committee on matters relating to acquisition and allocation of forest resources; and

(c) to assist the provincial government in preparing forest plans and forest development programmes, consistent with national and provincial programmes; and

(d) to make recommendations to the Board on—

(i) the preparation and terms of Forest Management Agreements; and

(ii) the selection of operators and the preparation of timber permits; and

(iii) the enforcement of timber permit conditions and of this Act; and

(e) to make recommendations to the Chairman of the Provincial Forestry Committee on—

(i) the issue of timber authorities; and

(ii) the amendment or surrender of timber authorities; and

(f) to supervise extension services with respect to business management, agro forestry, silviculture, reforestation, environmental protection, processing and marketing; and

(g) to oversee the receipt and distribution of government levies and charges and other benefits due to landowners; and

(h) to assist in the early identification and resolution of land-owning disputes affecting forest resources; and

(i) to carry out such other functions as it is required to carry out by this Act or any other law.

(2) A Provincial Forest Management Committee may, by notice in writing, delegate to the National Forest Service any of its functions under Subsection (1).

67. Project proposals to be referred to Provincial Forest Management Committee for evaluation.

(1) The Managing Director shall refer project proposals lodged under Sections 64 and 66 to the Provincial Forest Management Committee for evaluation.

(2) An evaluation of project proposals will be made against—

(a) the National Forestry Development Guidelines; and

(b) the specific guidelines for the project prepared in accordance with Section 63; and

(c) the National Forest Policy; and

(d) any relevant provincial government policies, provided that they are not inconsistent with the National Forest Policy; and

(e) the commercial viability of the project (including the financial resources of the applicant, the past performance of the applicant in forest industry and other projects, analysis of projected cash flows and the anticipated net benefit to the resource owners and to the State).

(3) In making an evaluation under this section, a Provincial Forest Management Committee shall at all times obtain the assistance of the National Forest Service and of any relevant Department.

68. Provincial Forest Management Committee may seek clarification of proposals.

(1) Where, following an evaluation under Section 67, the Provincial Forest Management Committee is of the opinion that project proposals for a timber permit merit further consideration, it may invite the proponents to provide such further information in order to clarify or elaborate on the proposals as the Committee considers necessary.

(2) Any further information referred to in Subsection (1) may be obtained at interview or by written submission.

(3) The Provincial Forest Management Committee shall evaluate, in accordance with the principles specified in Section 67(2), any further information required and obtained under this section.

69. Provincial Forest Management Committee to give recommendations, etc., to proposals.

Where the Provincial Forest Management Committee is satisfied with—

(a) its evaluation under Section 67; and

(b) any further evaluation under Section 68,

it shall prepare a detailed report of its evaluations including a recommendation as to the proponents (if any) with whom further negotiation should proceed and submit the report and recommendations to the Board.

70. Board to consider report, etc.

(1) The Board shall—

(a) consider and consult with the Minister on a report and recommendations submitted to it under Section 69; and

(b) subject to Subsection (2), direct the Provincial Forest Management Committee with which proponents, if any, it should enter into further negotiations with a view to negotiating a project agreement and advise the Provincial Forest Management Committee of any comments by the Minister; and

(c) in conjunction with the Provincial Forest Management Committee, set the parameters within which such negotiations shall be conducted; and

(d) assist the Provincial Forest Management Committee to set up negotiating committees.

(2) A project agreement referred to in Subsection (1)(b) may be entered into with a person (natural or corporate) other than a proponent with whom further negotiations were entered into under Subsection (1)(b), provided that the proponent is a shareholder of or contractor in the project to that person."

Issues

20. The plaintiff has identified nine (9) issues arising from the grounds of review and these are:

(1) Does the NFAB has power under the Forestry Act to make decisions concerning matters of evaluation and selection of bidders and as such it included Samas Ltd as a preferred Proponent disregarding recommendations by PFMC who threw it out at evaluation stage exercising its powers and functions provided for under Section 30 of the Forestry Act.

(2) Can the NFAB override functions of the PMFC provided under s 30 of the Forestry Act

(3) Did the NFAB make a separate evaluation on tenders to decide to include Samas Ltd not only from further placing to third placing but all the way to First placing as a preferred bidder.

(4) Did NFAB acted ultra vires in its actions now challenged.

(5) Whether the purported Second Decision of the National Forest Board dated 08th May 2007 as indicated through the letter of the First Defendant dated 16th May 2007 to include Samas Ltd as a First preferred proponent to enter into negotiations is illegal and null and void ab initio as it contravenes ss 67, 68 and 70 OF THE Forestry Act.

(6) Whether the Second Defendant’s decision dated 8th May 2007 is irrational and improper and it is not in the best interest of the Landowners and also it is not consented to by the PFMC.

(7) Can this Court orders in the nature of certiorari to bring into this Court the second decision of the NFAB Dec. No. 133/08 dated 8th May 2007 and quash it.

(8) Can this Court grant orders in the nature of mandamus to enforce the First Decision of the NFAB Meeting No. 132 in a letter dated 11th April 2007 to include only two preferred bidders for negotiations and signing of project agreement namely Aitape Maju Ltd and Forest Products Ltd.

(9) If the Timber Permit is issued out of illegality can it be declared illegal and null and void by this Court.

21. The first and second respondents have identified four issues arising from the grounds of review. These are:

(1) Is it mandatory to follow the PFMC recommendation and if not

(2) Under what statutory power (authority) can the NFAB consider a non-recommended party;

(3) When the NFAB exercises its authority what factors should it take into consideration

(4) In this case was the exercise proper. Namely did the exercise offend any principles of administrative law.

22. The fifth defendant has identified the following issues for determination:

(1) Whether the decisions of the NFAB of 3rd and 8th May to include Samas Ltd as a third proponent for negotiations is null and void.

(2) Whether the decisions of the NFAB to include Samas Ltd as a third proponent for negotiations is contrary to ss 67, 68, 69 and 70 of the Forestry Act and ultra vires the authority of the PFMC

(3) Whether it is a mandatory requirement under the Forestry Act for the NFAB to act on the recommendation(s) of the PFMC under ss 67, 68, 69 and 70 of the Forestry Act.

(4) Whether it is possible under the Act to remove Samas Ltd as a short-listed proponent to enter into negotiations with the State when those negotiations have in fact been concluded?

(5) Whether the orders sought by the plaintiff, if granted, will cause prejudice against Samas Ltd.

Refinement of relief sought, Grounds on which relief sought and Issues for determination.

23. The main relief sought in the application is an order in the nature of certiorari to quash the decision of NFAB to include Samas Ltd as their preferred proponent of the project. The consequential orders sought are the various declaratory orders sought such as a declaration that the said decision is illegal, null and void. These relief are available in judicial review proceedings: 0 16 r1.

24. The grounds or circumstances under which judicial review is available are those set out in Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122. Judicial review is available where the decision-making authority:-

(a) exceeds its powers (ultra vires);

(b) commits an error of law;

(c) commits a breach of natural justice; and

(d) reaches a decision which no reasonable tribunal could have reached or abuses its powers.

25. In the present case, there are three main categories of grounds for consideration. Parties have crystallized those grounds in issue form. There is no question that these issues are properly raised in the grounds of review set out in the Statement filed under O.16 r.3.

26. The issues raised by the plaintiff in Issue no. 1, 2,3 4, 5; issues No. 1 & 2 raised by the first respondent and Issues No. 2, 3 & 4 raised by the fifth respondent relate to excess of power or error of law. They are related and can be dealt with together.

27. Issue No. 6 raised by the plaintiff, Issues No. 3 and 4 raised by the first respondent relate to the reasonableness of the decision or abuse of powers

28. Issues No. 7, 8 & 9 raised by the plaintiff and Issues No. 1 and 5 raised by the fifth respondent relate to the appropriateness of the relief sought and that may be granted by the Court.

Determination of issues

(1) Excess of power/Ultra Vires & Error of Law

29. A consideration of the issues under this heading must begin with a construction of the provisions of the Act relied upon and finish with their application to the facts of this case.

30. An important aspect of the procedure for acquiring timber permits is the involvement of the PFMC. The functions of the NFAB are those set out in s.30 which includes "(d) to make recommendations to the Board on - (i) the preparation and terms of Forest Management Agreements." The first step is that the NFAB tenders the project and receives project proposals from interested developers.

31. The second step is set out in ss 67 & 68. The project proposals are submitted by the NFAB or National Forest Service (NFS) to the PFMC for evaluation and reporting back. The project proposals are the same as those submitted by those project developers who bid for the project when the project is tendered. It would be ultra vires the Act for a project developer who did not submit its bid at all or submitted its bid out of time to be referred by the NFAB or NFS to the PFMC for evaluation.

32. The third step is spelt out in s.69: the PFMC submits to the NFAB a report containing "detailed report of its evaluations including a recommendation as to proponents (if any) with whom further negotiation should proceed": s 69. On a plain reading of this provision, the PFMC’s report and recommendations remains as such and it is not binding on the NFAB. As to whether PFMC recommends and if it does recommend a proponent, in what order of preference, is not mandatory but optional. This is signified by the words "(if any)" appearing in that provision. It is clear that the PFMC is not given any power to determine anything. It is given the responsibility of only assisting the NFAB to evaluate the project proposals.

33. The fourth step is that the NFAB considers the report by the PFMC and consults the Minster for Forest on that report. Section 69 recognizes the wide powers given to the NFAB by s 70 to the NFAB possess to consult with the Minister on the report submitted to it by the PFMC. The Minster’s discretion in considering the report and expressing his views and the process by which he seeks to inform himself for purposes of arriving at his views is not prescribed in s. 70. This signifies the wide power the Minister has in seeking out relevant information on the report before him and making his views known to the NFAB.

34. The fifth step is that upon receipt of the Minister’s views, the NFAB considers those views and decides, by way of direction issued to the PFMC, which of the project proponents, if any, negotiations for a Project Agreement should be conducted. The NFAB is given wide powers by s 70 (1)(b) wide discretion to give such directions as are necessary to the PFMC to enter into further negotiations with any proponent the NFAB may choose. The wide power given to the NFAB by s 70 is made clear by the phrase "with which proponents, if any" appearing in that provision. It may be that the NFAB may not choose any of the proponents recommended by the PFMC. It is possible that the NFAB after consulting with the Minster may include other proponents that submitted project proposals which were not preferred by the PFMC in its evaluation report. Those are matters for the NFAB to decide upon. There is also noting in s 70(1) (b), (c) & (d) which limits the NFAB’s discretion to choose the terms of its direction in respect of selecting a proponent and the terms of negotiations. This may include remitting the matter back to the PFMC to reconsider its evaluation report or certain aspects of the report in a certain manner and the nature of any negotiations with developers.

35. Applying the law to the facts, whilst I accept Mr Mambei’s submission that the project evaluation report is a key part in PMFC’s recommendation on preferred proponents, it is clear from these provisions that the NFAB was not required by these provisions to make any decision on the preferred proponents and to restrict its consultations to the two proponents recommended by the PFMC. Even after the Minister was consulted for his views, the NFAB still had a discretion to decide on which of the proponents who had submitted project proposals and whose projects had been evaluated by the PFMC, if any, the PFMC should conduct back to back negotiations with. I accept Mr McDonald’s submission based on Justice Salika’s views expressed in Madang Timbers Ltd v Kambori, that the Board is not a mere rubber stamp of PMFC recommendations. Mr Iduhu makes the same point in his submission.

36. I am satisfied that the issues raised by the plaintiff under the heading "Excess of power (ultra vires) and Error of law are without merit and dismiss all the grounds of review which give rise to those issues. Samas Ltd was a project developer who bid for the project within the tender period. Its project proposal was evaluated by the PFMC. It was listed in the PFMC report which went before the NFAB. Although Samas Ltd was not preferred by the PFMC’, it was open to the Minister to consider its project proposal in the context of evaluating the PFMC’s report and express his views for consideration by NFAB. It was open for the NFAB to direct the PFMC to enter into back to back negotiations with other project developers including Samas Ltd.

37. Whilst I accept Mr Mambei’s submission that there is no provision in the Act which allows for NFAB to rescind its earlier decision made under s 70, however, the first decision of NFAB of 29th March 2007 is incorrectly relied upon by the plaintiff as a decision. The NFAB is not given any power to make any decision on the evaluation report submitted by PMC. By s 70 (1)(a), the PFMC is only empowered, by way of consultation only, to refer the PFMC’s whole report including the recommendation of two proponents, to the Minister for his views. The NFAB’s decision would come in the form of a direction under s 7 (b) to the PFMC after receiving the Minister’s advice. That decision was made after the NFAB considered the Minister’s advice in its meetings held on 3rd & 8th May 1987. It was open for the NFAB to consider the Ministers advice before making a decision under s 70 (1) (b).

38. I am satisfied that the process used by NFAB to facilitate by way of direction back to back negotiations with Samas Ltd, Aitape Maju Ltd and Vanimo Forest Products with the full involvement of the PFMC which resulted in Samas Ltd being selected as the developer was consistent with the powers given to the NFAB by s 70.

39. For theses reasons, I am satisfied that the arguments made by the plaintiffs’ counsel in respect of the issues raised by the plaintiff under the heading Excess of power (ultra vires) and Error of law are without merit and dismiss all the grounds of review which give raise to those issues.

(2) Abuse of power/unreasonableness of decision

40. The Minister had wide powers to be consulted by the NFAB and any other interested persons before expressing his views. As the national Minister for Forests and also the member for the electorate in which the project was situated, he had abundance of relevant information from which he critically assessed the project proposals and reports. I have read his critique and I am satisfied that the points he raised are valid and relevant matters to be taken into account. I do not consider his views to be unreasonable. Samas Ltd featured in the PFMC’s report as a viable developer and it was not plucked out of the bottom of the list. A proper assessment was not done by the NFAB and the Minister as to its capacity to develop the project. In any case the PFMC has no statutory authority to list the proponents of the project in any order of preference or to exclude any project proposal from any project developer from further consideration by the Minister and the NFAB.

41. I accept Mr McDonald’s submission that what occurred here in terms of consultation between the NFAB and the Minister amounted to genuine interchange of ideas and views on matters which were relevant to the exercise of statutory power and by the Board and Minister who were qualified and sufficiently informed to offer valuable advice.

42. I am also satisfied that the matters raised by the Minister which were considered were properly taken into account by NFAB including Samas Ltd in the back to back negotiations as the third proponent. I am satisfied that Samas Ltd having operated in the project area was a serious contender for the project but its case met strong resistance from certain quarters of PFMC and was not considered fairly and therefore did not receive support as a preferred proponent by factions of the PFMC. Further from the facts I have found, it is clear that certain factions of the PFMC’s recommendations in selecting two proponents only did not receive unanimous support from the board members at its subsequent meeting. For these and other relevant reasons the Minister and the Board were entitled to view the PFMC’s report with scepticism and allow a third proponent, Samas Ltd, to be included in back to back negotiations for a project agreement.

43. In any event, I am satisfied that the problems, prejudices and shortcomings which tainted the PFMC’s first evaluation report were properly addressed and rectified by the PFMC’s report made on 22 June 2007. The PFMC conducted a fair assessment of the three proponents including Samas Ltd and made its report to the NFAB without adverse comments against any of the three proponents. I am satisfied that on 5th July 2007, the NFAB relying on this report made the correct decision and chose Samas Ltd with whom the State would enter into a project agreement.

44. For these reasons, I am not satisfied that the NFAB’s decisions were influenced by irrelevant considerations or that its decision was unreasonable in the circumstances. I dismiss the grounds of review relating to the issue of abuse of power and unreasonableness of the NFAB’s decisions.

(3) Appropriateness of relief

38. Having reached the above conclusions, it is not necessary to address the arguments on relief.

Conclusion & orders

39. For the foregoing reasons I dismiss the application with costs to the respondents.

________________________________
Mambei Lawyers: Lawyer for the Plaintiffs
Posman Kua & Aisi Lawyers: Lawyer for the first and second Defendants
Fairfax Legal Group: Lawyer for the fifth Defendant