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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No.103 OF 2006
BETWEEN:
PLACER DOME (PNG) LTD as Manager of the PORGERA JOINT VENTURE
Plaintiff
AND:
JOSHUA SIAPU YAKO and members of the WAPINI SUB-CLAN
Defendants
Mt. Hagen: David, J
2011: 23 March & 3 May
MINING LAW – Porgera Special Mining Lease No.1– declarations sought that; plaintiff entitled to exclusive occupancy for mining and mining purposes of land in Special Mining Lease area under the provisions of Mining Act 1992; plaintiff entitled to carry on such operations and undertake such works as may be necessary or expedient for purposes of mining in Special Mining Lease area; Kulapi at Porgera was within the Special Mining Lease area – permanent injunctions sought to restrain defendants by themselves, their agents or otherwise from preventing or attempting to prevent or otherwise interfering with the plaintiff, its servants and agents from carrying out operations and undertaking works within the Special Mining Lease area and from intimidating or assaulting plaintiff's servants or agents – reliefs sought granted.
Cases Cited:
PNG cases
Dent v Thomas Kavali (1981) PNGLR 488
National Capital District Interim Commission v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd (1987) PNGLR 135
Ok Tedi Mining Ltd v Niugini Insurance Corporation & Others (No.2) [1988-89] PNGLR 425
Donigi v The State [1991] PNGLR 376
Ramu Nico Management Limited (MCC) v Joe Koroma & Ors (2009) SC1046
Overseas cases
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Hanson v Radcliffe Urban District Council Court of Appeal [1922] 2 CA 490
Other References cited
Michael A. Ntumy, Administrative Law of Papua New Guinea, Second Edition, CBS Publishers & Distributors
Counsel:
Mr. Robert Bradshaw, for the Plaintiff
Mr. Danny Gonol, for the Defendants
JUDGMENT
1. DAVID, J: INTRODUCTION: By originating summons filed on 16 February 2006, the Plaintiff claims a number of declarations and permanent injunctions. I set out the reliefs sought in full below:
"1. A declaration that as holder of the Porgera Special Mining Lease No.1 (the SML"), the Plaintiff is entitled under the provisions of the Mining Act 1992 to exclusive occupancy for mining and mining purposes of the land in respect of which the SML was granted.
2. A declaration that as holder of the SML, the Plaintiff is entitled under the provisions of the Mining Act 1992 to carry on such operations and undertake such works as may be necessary or expedient for the purposes of mining on the land in respect of which the SML was granted.
3. A declaration that the area of land described as Kulapi at Porgera, Enga Province, Papua New Guinea is within and part of the land in respect of which the SML was granted.
4. A permanent injunction restraining the Defendants by themselves or by their agents or otherwise from preventing or attempting to prevent or otherwise interfering with the Plaintiff and its servants and agents from carrying out operations and undertaking works on land, the subject of the SML.
5. A permanent injunction restraining the Defendants by themselves or by their agents or otherwise from intimidating or assaulting or otherwise interfering with servants or agents of the Plaintiff carrying operations and undertaking works on land, the subject of the SML.
6. Costs.
7. Such further or other orders as this Court deems appropriate."
NOTICE OF INTENTION TO DEFEND
2. The Defendants filed their notice of intention to defend these proceedings on 24 February 2006.
EVIDENCE
3. The Plaintiff relies on the following documents:
4. The Defendants rely on the following documents:
5. Exhibits "A" to "D" and "1" were admitted into evidence by consent.
6. Mr. Bradshaw said he had some objections in respect of parts of Exhibit "2", but later said he would address them in his final submissions. The affidavit was admitted into evidence all at the same.
7. As to Exhibit "3", there was an objection on the ground that it generally contained hearsay evidence hence inadmissible. No specific parts of the affidavit were referred to as offending the rule against hearsay evidence. Mr. Gonol on the other hand argued that the deponent was engaged by the Defendants as their consultant as they were illiterate and needed someone to assist them in relation to matters affecting them including a number of court cases they had with the Plaintiff. What he deposes to in the affidavit are matters that the deponent has come to know by reason of his personal involvement and experience with the Defendants in the subject matter and in any event the content was similar to the affidavit evidence of Mr. Yako he said. I accepted Mr. Gonol's submission and allowed the document to be admitted into evidence basically on the ground that it addressed matters in dispute which were also addressed in the affidavit evidence of Mr. Yako and its admission was made subject to what weight, if any, should be given to it. Matters that are hearsay in nature have been disregarded.
8. The deponents of the various affidavits were not subjected to cross-examination.
OBJECTION TO LEGAL REPRESENTATION
9. Before the trial got underway, there was an objection to Mr. Gonol appearing for the Defendants at the trial on the ground that Mr. Gonol could not be both counsel and witness for the Defendants at the same time and his appearance at the trial was in direct contravention of the serious observation made by Davani, J on 30 March 2006 when ruling on two motions filed by the parties. One was filed by the Plaintiff seeking interim restraining orders to restrain the Defendants from preventing or attempting to prevent or otherwise interfering with the Plaintiff and its servants and agents from carrying out operations and undertaking works on land, the subject of the SML and the other filed by the Defendants seeking to transfer these proceedings, which were initially filed in Waigani, to Mt. Hagen. Mr. Gonol's affidavits, one sworn on 3 March 2006 and filed on 6 March 2006 and the other sworn on 14 March 2006 and filed on 16 March 2006 were used by the Defendants during the interlocutory proceedings. Mr. Bradshaw informed the Court that he had written to Mr. Gonol on couple of occasions after the ruling and before the trial raising the issue, but Mr. Gonol had chosen to ignore Her Honour's observation. He said that since Mr. Gonol's affidavits were to be used at the trial, he should withdraw his services, but he had no objection to a lawyer from Mr. Gonol's firm appearing for the Defendants.
10. The pertinent part of Davani, J's observation that has given rise to the objection is contained at pages 11 to 12 of the written ruling where Her Honour said:
"In this case, Mr. Gonol, a lawyer, is giving evidence for and on behalf of his clients. He is also becoming involved as a litigant and may be called upon to be cross-examined. Mr. Gonol should immediately refrain from giving evidence for and on behalf of his clients because the court will not rely on that material. It is very unethical and compromises the lawyer's position to a large extent. In fact Mr. Gonol should seriously consider withdrawing his services as the defendants' lawyer. I say this relying on s.15 (15) of the Lawyers Professional Conduct Rules which states a lawyer shall withdraw from representing a client if it becomes apparent that he is likely to become a witness on a material question of fact and that he can withdraw without jeopardizing his clients interests."
11. Mr. Gonol on the other hand argued that there was no reason for him not to continue representing his clients at the trial when his affidavits would no longer be relied on by the Defendants at the trial which was in compliance with Her Honour's observation and in accordance with the principle that a lawyer cannot be both counsel and witness. He said if the Court were to uphold the objection, the trial would have to be vacated so as to enable him to brief another lawyer from his firm to act for the Defendants.
12. I accepted Mr. Gonol's submission and ruled that the trial proceed with Mr. Gonol to continue to appear for the Defendants.
BACKGROUND AND UNCONTESTED FACTS
13. From the evidence before me and submissions of the parties, I find that the following facts are not contested or disputed.
14. On 12 May 1989, the Plaintiff together with its joint venture partners Highlands Gold Properties Pty Ltd and RGC (Papua New Guinea) Pty Ltd (Porgera Joint Venture) were granted by the Head of State, Porgera Special Mining Lease No.1 (the SML) for a term of thirty years under the Mining Act, Chapter 195 (the repealed legislation) and in accordance with the Mining Development Contract entered into between the State and the Porgera Joint Venture.
15. The SML is situated in the Porgera valley of Enga Province.
16. The area of the SML and other mining tenements held by the Plaintiff is generally referred to as the Porgera Gold Mine.
17. As the holder of the SML, the Plaintiff is entitled to exercise the rights conferred on a holder of a special mining lease under the provisions of the Mining Act 1992.
18. The validity of the SML is not in dispute.
19. Placer Dome (PNG) Ltd (formerly Placer (PNG) Ltd) is the Manager of the Porgera Joint Venture.
20. The Porgera Gold Mine commenced operations in the late 1980s or thereabouts after the grant of the SML.
21. The Plaintiff and landowner agents of the land, the subject of the SML, entered into a Compensation Agreement for the Special Mining Lease, Porgera Project, Enga Province, Papua New Guinea on 31 January 1988 (the Compensation Agreement). The landowner agents represented the Tieni, Waiwa, Tuanda, Pulumaini, Angalaine, Mamai and Anga clans of the SML area. The Compensation Agreement sets out the terms and conditions under which compensation due to the landowners of Tieni, Waiwa, Tuanda, Pulumaini, Angalaine, Mamai and Anga clans of the SML area must be paid by the Plaintiff. The validity of the Compensation Agreement is not in dispute. The Defendants are not parties to the Compensation Agreement.
22. The Defendants live in Kulapi. Kulapi is within and part of the SML area. The Defendants are from the Wapini sub-clan of the Pulumaini clan.
23. The Defendants want to be separately recognised and treated by the Plaintiff and Porgera Joint Venture as landholders within the SML area instead of being grouped together with another major sub-clan. The Defendants claim to own the Kulapi land.
24. Since 2005, the Plaintiff undertook works to construct a new permanent fence around parts of the SML area especially the high risk areas to replace the existing cyclone wire fence built in the 1990s which had over the years either fallen into disrepair or been wilfully damaged by unknown people trying to gain entry into the mine site. The Plaintiff claims that the erection of the new fence will improve security and safety concerns and also to make it more difficult for illegal miners and other persons from entering the mine site and subjecting themselves to potentially dangerous situations.
25. The disruption by the Defendants at the early stages of the construction of the new fence led to the Plaintiff obtaining an order from the District Court at Porgera on 26 January 2005 restraining the Defendants from interfering with the construction. In early February 2006, the Defendants again disrupted the construction of works on the new fence by destroying parts of the fence and threatening to continue to do so and this led to the institution of these proceedings.
26. In order to preserve the status quo, on 17 February 2006, Gavara-Nanu, J granted interim orders restraining the Plaintiff from carrying out construction work on the new fence and also restraining the Defendants from interfering with the existing fence.
27. On 30 March 2006, Davani J, ordered, inter alia; the dissolution of the interim restraining orders of 17 February 2006 as against the Plaintiff; and that until determination of the proceedings, the Defendants by themselves or by their agents were restrained from preventing or attempting to prevent or otherwise interfering with the Plaintiff and its servants and agents from carrying out operations and undertaking works on the fence on land within the SML area.
28. The Defendants have interrupted work on the new fence because they claim that it was been built through their village which will result in their displacement including destruction to homes, food gardens and economic trees and the further taking up of otherwise scarce land they still have for their use while the Plaintiff claims that the new fence is being built alongside the existing fence which does not go through the village.
29. The Defendants raise safety and health issues posed by the construction of the new fence.
30. Issues about ownership of Kulapi land, an aspect of the determination of the Chief Mining Warden in respect of a claim for compensation for permanent loss of soil surface made on 26 April 1999 made in favour of Mr. Yako and recognition of Mr. Yako as the agent representing the Wapini sub-clan in the SML area have been the subject of other court proceedings.
31. In 1999, Mr. Yako lodged a number of claims for compensation against the Porgera Joint Venture. On 26 April 1999, a Mining Warden in the Warden's Court at Porgera made a determination in favour of Mr. Yako by awarding him K182,466.00. Aggrieved by that determination, the Plaintiff as Manager for and on behalf of the Porgera Joint Venture lodged an appeal in the National Court in proceedings commenced by CIA 184 of 1999 pursuant to section 158 of the Mining Act 1992. On 23 November 2010, Ellis, J allowed the appeal.
32. In proceedings commenced by OS 775 of 1999, the Defendants, there as plaintiffs claimed against the Plaintiff there as Third Defendant and others including leaders of the Pulumaini Ambo clan there as Fourth Defendants an order for Mr. Yako to be appointed as an agent pursuant to an agency agreement dated 30 March 2000 purporting to appoint Mr. Yako as agent for the Wapini sub-clan for purposes of the Compensation Agreement. An application was filed to dismiss the proceedings on the basis that the National Court was not the appropriate forum for disputes over customary land to be determined. On 16 May 2005, the late Hinchliffe, J refused the application holding that there was no dispute as to customary land ownership between the Defendants and the Pulumaini Ambo clan, convinced that the issue on ownership of the subject customary land was decided by the Porgera Land Court in September 1998. The ruling was appealed by the Porgera Joint Venture and the Plaintiff in proceedings commenced by SCA 63 of 2005. The Pulumaini Ambo clan did not appeal. An objection to the competency of the appeal was filed on the basis that the appellants did not have sufficient interest in the subject of the decision appealed. On 13 May 2008, the objection was upheld by the Supreme Court resulting in the dismissal of the application for leave to appeal.
33. In proceedings OS 775 of 1999, Makail, AJ, as he then was, on 25 July 2008 decided that there was a land dispute between the Wapini sub-clan and the Pulumaini Ambo clan that should be resolved under the provisions of the Land Disputes Settlement Act. That decision is the subject of an appeal filed by the Defendants in the Supreme Court in proceedings commenced by SCA 94 of 2008 which is pending; the Defendants asserting that the matter is res judicata.
CONTESTED FACTS
34. I set out the contested or disputed facts below.
35. As the holder of the SML, the Plaintiff is entitled to the exclusive occupancy of the land the subject of the SML for mining and mining purposes.
36. As the holder of the SML, the Plaintiff is entitled to carry on such operations and undertake such works as may be necessary or expedient for mining and mining purposes on land the subject of the SML.
37. The Defendants assert that all issues concerning compensation and relocation be addressed by the Plaintiff and Porgera Joint Venture and resolved before the new fence is constructed through their village.
ISSUES
38. The issues for my consideration and determination are:
DISCUSSION OF ISSUES
Issues 1 to 3
39. Issues one to three are interrelated therefore I will deal with all of them together.
Defendants' submissions
40. The Defendants submit as follows. Seven clans were recognised by the Plaintiff and that led to the execution of the Compensation Agreement. Twenty three agents of clans and sub-clans signed the Compensation Agreement. They are a sub-clan of the Pulumaini clan which was overlooked. They are currently not a party to the Compensation Agreement therefore it is not binding on them. For that reason, they have not received any compensation for destruction caused to their gardens, etc. They have been marginalised. They want their sub-clan to be recognised and treated as a separate landholder represented by Mr. Yako as their agent for purposes of compensation, etc. They live along the fenced area of the SML area which divides the mine from the village and are most affected by the mining activities yet are not recognised. The Defendants' main contention is that unless the Plaintiff complies with sections 154, 155 and 156 of the Mining Act 1992 and pays them compensation, it cannot have exclusive right to Kulapi. It was the decision of the Plaintiff to permit them to reside within the SML area. The relocation of the Defendants without payment of compensation will set a dangerous precedent for mining activities within the country. Rights guaranteed by the Constitution and the United Nations Charter will be infringed in the exercise.
41. The Defendants propose that the Court should declare that the Plaintiff is not entitled to exclusive occupancy of the SML area for mining and mining purposes until all issues of compensation and relocation are adequately addressed.
Plaintiff's submissions
42. The Plaintiff's main contention is that section 41 of the Mining Act 1992 is clear on the rights conferred on the holder of a mining lease which includes a special mining lease by virtue of section 37 of the Mining Act 1992. Section 41 (2)(a) of the Mining Act 1992 clearly states that the holder of the SML is entitled to the exclusive occupancy of the land in respect of which the SML was granted for mining and mining purposes and to carry on such operations and undertake such works as may be necessary for those purposes there.
43. The Plaintiff's other submissions are these. The Defendants do not offer any credible evidence disputing the Plaintiffs' claim for the relief sought or raise any particular defence that is open to them in law against its claim. The affidavit evidence relied on by the Defendants only raise issues concerning compensation, in particular that compensation may have been paid to the wrong persons. The Defendants have outstanding court proceedings regarding land ownership issues and compensation. It is clear from the affidavit evidence of Mr. Yako that the Defendants' aim is to coerce the Plaintiff to give in to their demands for compensation and relocation. The Plaintiff submits that that is demonstrated at paragraph 16 of Exhibit 1 where Mr. Yako states:
"... I must state that as long as the plaintiff tries to put up any new development through or near our village without first addressing the pressing issues such as relocation and compensation, we will not allow it even if it means to lose our lives for it..."
44. The defendants are free to pursue their claims concerning land ownership and compensation in the other court proceedings. Their rights in the other proceedings will not be extinguished by virtue of the Plaintiff undertaking works in the SML area. The Defendants' claims in the other court proceedings will have to be determined on their own merits.
45. Section 4 of the Mining Act 1992 particularly sub-section (1)(b) clearly indicates that the grant of the SML was not affected by any dispute among customary landowners as to ownership or interests in customary land relying on Ramu Nico Management Limited (MCC) & Ors v Joe Koroma & Ors (2009) SC1046 to support the proposition.
46. As to the question of non-recognition by the Plaintiff for purposes of compensation, etc, which has resulted in the Defendants instituting court proceedings against the Plaintiff, this was a matter for the SML landowners to sort out amongst themselves given the existence of the Compensation Agreement, the validity of which was not disputed by the Defendants and which was binding on the parties to the agreement and a condition of the tenement to which it relates. The provisions of Part VII of the Mining Act 1992 (ss.154-160) which according to Ramu Nico Management Limited (MCC) & Ors is a complete code for determining compensation to be paid to customary landholders or claims of disputing claimants for land covered in a mining tenement or SML had been complied with by the Plaintiff enabling it to enter upon the SML area and occupy it for the purpose of mining.
Reasons for decision
47. The word "tenement" is defined in section 2 of the Mining Act 1992 as meaning, inter alia, a special mining lease granted or deemed to have been granted under the Mining Act 1992. A special mining lease may be granted under section 33 of the Mining Act 1992 for a term not exceeding forty years by virtue of section 34 of the Mining Act 1992 and the term may be extended for a period not exceeding twenty years at any one time under section 36 of the Mining Act 1992.
48. Part V of the Mining Act 1992 (sections 20-95) deals with tenements. Division 2 of that Part (sections 33-37) specifically deals with special mining leases. Section 37 states that certain provisions relating to mining leases apply to special mining leases. That provision reads:
"37. Certain provisions relating to mining leases to apply to special mining leases.
Subject to the foregoing provisions of this Division, the provisions of this Act applicable to a mining lease shall also apply to a special mining lease."
49. Section 41 of the Mining Act 1992 sets out the rights conferred by a mining lease. It states:
"41. Rights conferred by a mining lease
(1) A mining lease authorizes the holder, in accordance with the Mining (Safety) Act 1977 and any conditions to which the mining lease is subject, to-
- (a) enter and occupy the land over which the mining lease was granted for the purpose of mining the minerals on that land and carry on such operations and undertake such works as may be necessary or expedient for that purpose; and
- (b) construct a treatment plant on that land and treat any mineral derived from mining operations, whether on that land or elsewhere, and construct any other facilities required for treatment including waste dumps and tailing dams; and
- (c) Take and remove rock, earth, soil and minerals from the land, with or without treatment; and
- (d) take and divert water situated on or flowing through such land and use it for any purpose necessary for his mining or treatment operations subject to and in accordance with the Water Resources Act 1982; and
- (e) do all other things necessary or expedient for the undertaking of mining or treatment operations on that land.
(2) Subject to this Act, the holder of a mining lease –
- (a) is entitled to the exclusive occupancy for mining lease and mining purposes of the land in respect of which the mining lease was granted; and
- (b) owns all minerals lawfully mined from that land."
50. According to section 120 of the Mining Act 1992, the registered holder of a tenement has priority over other persons in respect of that tenement. That provision states:
"120. Effect of registration.
(1) Except in the case of fraud, the registered holder of a tenement shall have priority over any other person in respect of that tenement subject only to—
(a) an encumbrance or other interest which is notified on the register; and
(b) conditions contained in the grant of the tenement or imposed in respect of the tenement by this Act.
(2) Except in the case of fraud—
(a) no informality or irregularity in the application for or in the proceedings previous to the grant or extension of term of a tenement shall affect the title of the registered holder of the tenement; and
(b) no person dealing with a registered holder of a tenement—
(i) needs to inquire into the circumstances under which the registered holder or any previous registered holder became registered; and
(ii) shall be affected by notice of any unregistered interest and the knowledge that any such unregistered interest is in existence shall not of itself be imputed as fraud.
(3) A grant of a freehold or leasehold estate in land shall not affect in any way any existing tenement acquired or continued in existence under this Act."
51. A compensation agreement is a condition of the tenement to which it relates, the breach of which may be a basis for cancellation of the tenement and is valid on both the tenement holder and landholders once registered: see sections 156 and 159 of the Mining Act 1992.
52. The Mining Act 1992 recognises the rights and interests of landholders to compensation to be paid to them by a tenement holder prior to entry or occupation of any land the subject of a tenement for the purposes of exploration or mining or operations ancillary to mining: see sections 6, 154 to 160 of the Mining Act. The requirement to pay compensation appears to be mandatory.
53. Section 154 sets out the principles of compensation. Sub-section (2) sets out the circumstances under which landholders in respect of the land the subject of the tenement are entitled to make a claim for compensation and they include:
(a) being deprived of the possession or use of the natural surface of the land; and
(b) damage to the natural surface of the land; and
(c) severance of land or any part thereof from other land held by the landholder; and
(d) any loss or restriction of a right of way, easement or other right; and
(e) the loss of, or damage to, improvements; and
(f) in the case of land under cultivation, loss of earnings; and
(g) disruption of agricultural activities on the land; and
(h) social disruption.
54. A tenement holder is required to pay landholders for all loss or damage suffered or foreseen to be suffered as a result of the exploration or mining or ancillary operations of the tenement holder: see section 154 (1).
55. Sub-section (6) of section 154 permits landholders of land or improvements adjoining or is in the vicinity of land the subject of a tenement to be compensated for any injury sustained or that there has been a depreciation in value as a result of exploration or mining of the tenement.
56. It is an offence for a person to carry on unauthorised exploration or mining on any land: see section 167 (1). An offender is liable to a prescribed maximum penalty of a fine not exceeding K10,000.00 or imprisonment not exceeding four years or a default penalty of a fine not exceeding K1,000.00.
57. Section 168 is also applicable. It is a general penalty provision to be applied where breaches of provisions of the Mining Act occur for which no penalty is provided and also deals with how a convicted body corporate of an offence committed against the Mining Act should be dealt with. That provision states:
"168. General penalty, etc.
(1) A person who acts in contravention of or fails to comply in any respect with a provision of this Act is guilty of an offence against this Act.
(2) A person who commits an offence against this Act for which no penalty is provided elsewhere in this Act is liable to a penalty of a fine not exceeding K3,000.00 or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment, and where the offence is a continuing one, is further liable to a default penalty of a fine not exceeding K300.00 for every day during which the offence was committed after conviction.
(3) Where a body corporate is convicted of an offence against this Act, every director and every other officer of the body corporate concerned in the management thereof is guilty of the offence if it is proved that the act or omission that constituted the offence took place with his authority, permission or consent."
58. The SML, the validity of which is not disputed, was granted under the repealed legislation. Section 173 (2) of the Mining Act 1992 permits a special mining lease granted under the repealed legislation to continue in full force and effect as though the repealed legislation had not been repealed.
59. The National Court has powers to grant declaratory orders according to the principles of equity initially adopted and applied as part of the underlying law under Schedule 2.2 of the Constitution, but now declared as such under sections 3 and 4 of the Underlying Law Act 2000, such powers deriving from s.155 (4) of the Constitution: see Dent v Thomas Kavali (1981) PNGLR 488; National Capital District Interim Commission v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd (1987) PNGLR 135. The power of the Court to make such declaratory orders involves a wide discretion, but must be exercised judicially: per Lord Sterndale MR in Hanson v Radcliffe Urban District Council Court of Appeal [1922] 2 CA 490 at 507.
60. Michael A. Ntumy in Administrative Law of Papua New Guinea, Second Edition, CBS Publishers & Distributors at pp.809 and 810 described the declaratory relief in the following terms:
"A declaration, also known as declaratory judgment is, a discretionary order made by the Supreme and National Court declaring what the law on a particular issue is. This order merely defines and clarifies the rights of the parties and their legal relationship and is not accompanied by any sanction or means of enforcement. ...A declaration will be granted only if the claim relates to some legal right or interest recognized by law..."
61. Factors that need to be established before a declaratory order can be made are set out in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448. They are:
1. there must exist a controversy between the parties.
2. the proceedings must involve a right.
3. the proceedings must be brought by a person who has a proper or tangible interest in obtaining the order.
4. the controversy must be subject to the court's jurisdiction.
5. the defendant must be a person having a proper or tangible interest in opposing the plaintiff's claim.
6. the issue must be a real one. It must not be merely of academic interest, hypothetical or one whose resolution would be of no practical utility.
62. Those factors were referred to in Ok Tedi Mining Ltd v Niugini Insurance Corporation & Others (No.2) [1988-89] PNGLR 425.
63. In Donigi v The State [1991] PNGLR 376, it was held, inter alia, that the power of the National Court to grant declaratory relief in respect of legislation is dependent on there being a specific problem concerning it which requires the determination of personal or proprietary rights - there is no power to declare hypothetical problems.
64. I adopt the above principles and will apply them in the present case.
65. The basic answer to the issue lies in the application and interpretation of sections 4 (1), 37, 41 (2) and 120 (1) of the Mining Act. There is no doubt in my mind that those provisions demonstrate the intention of the legislature to give to a tenement holder exclusive occupancy of the land the subject of a tenement for mining and operations ancillary to mining notwithstanding the existence of disputes as to interests in customary land subject only to encumbrances or other interest notified in the Register of Tenements and terms and conditions contained in the tenement.
66. The following findings of fact are made below.
67. As the holder of the SML, the Plaintiff is entitled to the exclusive occupancy of the land the subject of the SML for mining and mining purposes.
68. As the holder of the SML, the Plaintiff is entitled to carry on such operations and undertake such works as may be necessary or expedient for mining and mining purposes on land the subject of the SML. The construction of the new fence falls within the category.
69. The Defendants' assertion that all issues concerning compensation and relocation be addressed by the Plaintiff and Porgera Joint Venture and resolved before the new fence is constructed through their village which is denied by the Plaintiff is without any legal basis.
70. The Porgera Joint Venture took occupation of the SML area following the grant of the SML and execution of the Compensation Agreement. Issues raised in OS 775 of 1999 which include those touching upon the questions of compensation and ownership and interest in customary land are currently before the National and Supreme Courts hence I will refrain from making further observations concerning those matters.
71. I am satisfied that all six factors recommended in Russian Commercial and Industrial Bank have been established by the Plaintiff.
Issue 4
Defendants' submissions
72. It was submitted that orders for permanent injunctions will be consequential should the Court grant the declarations sought.
Plaintiff's submissions
73. The Plaintiff made the following submissions. There is clear, uncontested evidence that the Defendants prevented and interfered with the Plaintiff's operations on land, the subject of the SML. On 26 January 2005, the Plaintiff had to obtain an order from the District Court at Porgera to restrain the Defendants. The Defendants disobeyed the order and interrupted or interfered with the Plaintiff's operations in February 2006. Interim restraining orders were granted on 30 March 2006. The permanent injunctions in the terms sought should be granted.
Reasons for decision
74. I make the following observations. I remind myself of the principles to be satisfied when seeking an injunction. First, an applicant must demonstrate that there are serious questions to be tried. Second, the balance of convenience favoured the grant of injunctive orders so as to preserve the status quo. Third, damages is not an appropriate remedy. One other fundamental requirement that has to be met by an applicant is to file and give an undertaking as to damages. That is a condition precedent to granting of injunctive orders. The Plaintiff's written undertaking was filed on 16 February 2006.
75. I accept the Plaintiff's submission that there is clear, uncontested evidence that the Defendants prevented and interfered with the plaintiff's operations on land, the subject of the SML. That led to the Plaintiff on 26 January 2005 obtaining an order from the District Court at Porgera to restrain the Defendants. Despite that order, the Defendants interrupted or interfered with the Plaintiff's operations in February 2006. That resulted in the commencement of these proceedings and the grant of interim restraining orders firstly by Gavara-Nanu, J on 17 February 2006 and continued on 30 March 2006, but on varied terms as ordered by Davani, J.
76. I also note with concern the threat made by Mr. Yako in paragraph 16 of Exhibit 1. I have reproduced the relevant part of that paragraph earlier on in the judgment.
77. I consider that the Plaintiff has made out a case for the grant of permanent injunctions.
ORDER
78. The formal orders of the Court are:
1. A declaration that as holder of the Porgera Special Mining Lease No.1, the Plaintiff is entitled under the provisions of the Mining Act 1992 to exclusive occupancy for mining and mining purposes of the land in respect of which the special mining lease was granted.
2. A declaration that as holder of the Porgera Special Mining Lease No.1, the Plaintiff is entitled under the provisions of the Mining Act 1992 to carry on such operations and undertake such works as may be necessary or expedient for the purposes of mining on the land in respect of which the special mining lease was granted.
3. A declaration that the area of land described as Kulapi at Porgera, Enga Province, Papua New Guinea is within and part of the land in respect of which the Porgera Special Mining Lease No.1 was granted.
4. A permanent injunction restraining the Defendants by themselves or by their agents or otherwise from preventing or attempting to prevent or otherwise interfering with the Plaintiff and its servants and agents from carrying out operations and undertaking fencing works on land, the subject of the Porgera Special Mining Lease No.1.
5. A permanent injunction restraining the Defendants by themselves or by their agents or otherwise from intimidating or assaulting or otherwise interfering with servants or agents of the Plaintiff carrying operations and undertaking fencing works on land, the subject of the Porgera Special Mining Lease No.1.
6. The Defendants shall bear the Plaintiff's costs of these proceedings, to be taxed, if not agreed.
____________________________________________________
Bradshaw Lawyers : Lawyers for the Plaintiff
Paulus M. Dowa: Lawyers for the Defendants
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