SC2519
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 66 OF 2021

KIMALEYA ONDALANE & YANALE LARE
Appellants

V

MARK TONY EKEPA, 
HON JOHNSON TUKE MP MINISTER FOR MINING, 
MINERAL RESOURCES AUTHORITY, 
INVESTMENT PROMOTION AUTHORITY & 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Respondents

&

SCA NO 96 OF 2021
NELSON AKIKO & RUBEN LOLI NALEPE
Appellants

V

MARK TONY EKEPA, 
HON JOHNSON TUKE MP MINISTER FOR MINING, 
MINERAL RESOURCES AUTHORITY & 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Respondents

&

SCA NO 131 OF 2021
KIMALEYA ONDALANE & PAWE MENEPA
Appellants

V

MINERAL RESOURCES AUTHORITY, 
HON JOHNSON TUKE MP MINISTER FOR MINING, 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
INVESTMENT PROMOTION AUTHORITY & 
MARK TONY EKEPA 
Respondents

&

SCA NO 139 OF 2021
NELSON AKIKO & RUBEN LOLI NALEPE
Appellants

V

NIXON MANGAPE, JOE KALE, SOLE TARO & NIKER PULI,  
MINERAL RESOURCES AUTHORITY, 
HON JOHNSON TUKE MP MINISTER FOR MINING, 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA & INVESTMENT PROMOTION AUTHORITY
Respondents

&

SCA NO 7 OF 2022
KIMALEYA ONDALANE, PAWE MENEPA, 
RUBEN NALEPE & NELSON AKIKO
Appellants

V

MINERAL RESOURCES AUTHORITY, 
THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
INVESTMENT PROMOTION AUTHORITY
MARK TONY EKEPA & 
PORGERA LANDOWNERS ASSOCIATION INCORPORATED
Respondents

Waigani: Batari J, Cannings J, David J
2023: 18th, 29th December 

JUDGMENTS AND ORDERS – consent orders – whether made contrary to natural justice – whether proper judicial determination of draft consent orders – whether orders that sanctioned a validation exercise to determine clan agents for mining project had proper legal basis – whether originating summons proceedings that generated consent orders were an abuse of process – whether Mineral Resources Authority and Investment Promotion Authority abused statutory powers and functions by interfering in affairs of a landowner association and participating in sham proceedings.

This was the joint hearing of five appeals against orders of the National Court in four separate originating summons proceedings. In each case the National Court endorsed consent orders drafted by the parties, the purpose of which was to sanction a “validation exercise” by which clan agents would be elected for 25 sub-clans who were customary landowners of an area of land covered by a special mining lease granted under the Mining Act. There were at least two appellants in each of the five appeals. Some were appellants in more than one appeal. In total there were five appellants who opposed the validation exercise. They argued that there was no need for it and it had no lawful basis. Their primary grounds of appeal were that the consent orders were made: (1) contrary to the principles of natural justice; (2) without any proper judicial determination of issues in dispute; (3) to implement a validation exercise that was not provided for by any law; (4) contrary to the existing authorities and processes that provided for appointment, not election, of clan agents; (5) in originating summons proceedings that were defective and an abuse of process; and (6) due to abuse of statutory powers and functions of the Mineral Resources Authority and the Investment Promotion Authority. The relief sought by the appellants was that all the consent orders be quashed and all originating summons proceedings be remitted to the National Court for rehearing and that they be permitted to join the proceedings. 

Held: 

(1)	There was no denial of natural justice as the relief sought in the various originating summons proceedings was not for the exclusive benefit of any customary landowners but for the inclusive benefit of all customary landowners including the appellants. It was unnecessary for the appellants to be joined to any of the originating summons proceedings.

(2)	The making of each consent order was a valid exercise of judicial power. 

(3)	The absence of express statutory provision for a validation exercise was no bar to the exercise of judicial power to provide for a validation exercise. 

(4)	The appellants previously were clan agents under the authority conferred on them for purposes of the special mining lease under which the mining project was commenced, but upon the expiry of that special mining lease their authority including the power to appoint new clan agents as and when required, was extinguished. It followed that clan agents would need to be appointed for the new special mining lease and the validation exercise was a fair, democratic and transparent process sanctioned by orders of the National Court to achieve that outcome.

(5)	The originating summons in each case was not defective and there was no abuse of process evident from the way each of the proceedings was conceived and prosecuted. 

(6)	The evidence suggested that the Mineral Resources Authority and the Investment Promotion Authority had facilitated the validation exercise for a proper purpose in the interests of all customary landowners affected by the special mining lease. There was no proven abuse of statutory powers and functions.  

(7)	All appeals were dismissed. Costs followed the event.

Cases Cited

The following cases are cited in the judgment:

Akiko v Ekepa (2023) SC2442
Ekepa v Nalepe (2020) N8564
Ipara v Porgera Landowners Association (2020) SC1969

Counsel

P Harry, for the Appellants K Ondalane & Y Lare
R A Saulep, for the Appellants N Akiko, R L Nalepe & P Menepa
P N Mawa, for the Respondent M T Ekepa
N Saroa, for the Respondents Minister for Mining & MRA 
R Uware, for the Respondent The State
J Nandape, for the Respondent Porgera Landowners Association Inc

29th December 2023

1.     BY THE COURT: This was the joint hearing of five appeals from orders of the National Court in four separate originating summons proceedings. In each case the National Court endorsed consent orders drafted by the parties, the purpose of which was to sanction a “validation exercise” by which clan agents would be elected for 25 sub-clans who are customary owners of land covered by the new special mining lease granted under the Mining Act for the Porgera Gold Mine, Enga Province.

2.    There are at least two appellants in each of the five appeals. Some of them are appellants in more than one appeal. The appeals, the appellants, the National Court proceedings and the dates of the orders and the primary judge appealed against are summarised in the following table.

Appeal	Appellants	National Court
proceedings	Date of order appealed against	
SCA 66/2021	Kimaleya Ondalane
Yanale Yare	OS 102/2021	2 July 2021
Kandakasi DCJ	
SCA 96/2021	Nelson Akiko
Ruben Loli Nalepe	OS 102/2021	2 July 2021
Kandakasi DCJ	
SCA 131/2021	Kimaleya Ondalane
Pawe Menepa	OS 193/2021	15 September 2021
Kandakasi DCJ	
SCA 139/2021	Nelson Akiko
Ruben Loli Nalepe	OS 208/2021	23 September 2021
Kandakasi DCJ	
SCA 7/2022	Kimaleya Ondalane
Pawe Menepa
Ruben Loli Nalepe
Nelson Akiko	OS 47/2021	30 December 2021
Wurr AJ	

3.    In total there are five appellants who opposed the validation exercise. They argue that there was no need for it and it had no lawful basis. 

RESPONDENTS

4.    The respondents to each appeal vary depending on which were parties in the National Court proceedings. They include Mark Tony Ekepa (President, Porgera Landowners Association Inc), the Minister for Mining, the Mineral Resources Authority, the Investment Promotion Authority, the State, Nixon Mangape and others and the Porgera Landowners Association Inc. 

5.    The respondents are united in their opposition to the appeals, which they submit are futile as the validation exercise implemented through the consent orders has been completed. This has allowed negotiation of landowner benefits to proceed and identification of which landowners receive benefits to be clarified. They say this has been a necessary step in reopening the mine after its closure several years ago after expiry of the first 30-year special mining lease.

GROUNDS OF APPEAL

6.    The primary grounds of appeal are that the consent orders were made: 

(1) contrary to the principles of natural justice; 

(2) without any proper judicial determination of issues in dispute; 

(3) to implement a validation exercise that was not provided for by any law; 

(4) contrary to the existing authorities and processes that provided for appointment, not election, of clan agents; 

(5) in originating summons proceedings that were defective and an abuse of process; and 

(6) due to abuse of statutory powers and functions of the Mineral Resources Authority and the Investment Promotion Authority. 

7.    The relief sought by the appellants is that all the consent orders be quashed and all originating summons proceedings be remitted to the National Court for rehearing and that they be permitted to join those  proceedings. 

(1)	CONSENT ORDERS MADE CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE

8.    The appellants argue that they were shut out of the various National Court proceedings from the beginning, as they were not parties to the first proceeding, OS 102 of 2021, and when they applied to join the proceedings as defendants they were denied access. They argue that they were not busybodies but were treated as such and the National Court (per Kandakasi DCJ) wrongly refused their joinder application.

9.    We appreciate the grievance of the appellants. They argue that they were appointed clan agents under the initial arrangements that paved the way for the initial 30-year special mining lease for the Porgera gold project and their status as such was not affected by the expiry of the initial SML. However, it must be acknowledged that that is a minority view. Most of the customary landowners affected by the new SML have had no difficulty accepting the validation exercise.

10.    In these circumstances we are not satisfied there was a denial of natural justice. The relief sought in the various originating summons proceedings was not for the exclusive benefit of any customary landowners but for the inclusive benefit of all customary landowners including the appellants. 

11.    It was unnecessary for the appellants to be joined to any of the originating summons proceedings, including OS 47 of 2021, in which the MRA, the IPA and the State sought declarations and orders to ratify Mark Tony Ekepa and others as executives of the Porgera Landowners Association. External and independent intervention was warranted in view of the finding of Justice Shepherd in Ekepa v Nalepe (2020) N8564 that Porgera Landowners Association was in a dysfunctional state. 

12.    We find no error of law arising from the failure to join the appellants as parties in the various originating summons proceedings. 

(2)	CONSENT ORDERS MADE WITHOUT PROPER JUDICIAL DETERMINATION OF ISSUES IN DISPUTE

13.    The appellants argue that the National Court simply endorsed draft consent orders put before it without any proper judicial determination of issues in dispute, in particular the question of legality of the validation exercise. There was never any determination of its legality. 

14.    As to the legality of the validation exercise, we find no error on the part of the National Court in presuming its legality. Though it was clear that there were some customary landowners affected by the new SML who queried or challenged its legality, it was not actually a live issue in any of the originating summons proceedings. It was not necessary for an express and discrete judicial determination on its legality to be made before making the consent orders. 

15.    The making of each consent order was a valid exercise of judicial power. 

(3)	CONSENT ORDERS MADE TO IMPLEMENT A VALIDATION EXERCISE THAT WAS NOT PROVIDED FOR BY ANY LAW

16.    It is one of the appellants’ principal contentions that the validation exercise has no lawful basis. It is not provided for in the Mining Act or any other legislation. Allied to that is the contention that it is unnecessary as under the arrangements for identification of clan agents for the initial SML, there was a comprehensive review of customary land ownership, and it was recognised that each sub-clan is entitled to appoint clan agents and there is no provision for elections to take place.

17.    On the last point, we are not satisfied that the concept of appointment of clan agents, rather than their election, is so embedded in customary land ownership arrangements for the area covered by the new SML, that it can be regarded as a principle of law. The appellants’ case is largely built on this proposition, but we see no credible evidence to support it.

18.    We see nothing unlawful in principle in a validation exercise built on democratic principles that sees members of a clan or sub-clan electing clan agents authorised by the clan members to protect and enforce their interests in negotiation for shares of royalties and other benefits generated by the new SML.

19.   We are not convinced that the fact that the validation exercise is not expressly provided for by any law makes it unlawful or questionable. The National Court is by virtue of s 166 of the Constitution with very limited exceptions a court of unlimited jurisdiction. It has an inherent power under s 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of a particular case. 

20.    Given this breadth of jurisdiction we find no error of law on the part of the National Court in making orders to sanction an exercise for validation of clan agents that was not provided for by legislation. 

(4)	CONSENT ORDERS MADE CONTRARY TO EXISTING AUTHORITIES AND PROCESSES THAT PROVIDED FOR APPOINTMENT, NOT ELECTION, OF CLAN AGENTS

21.    The appellants contend that under existing authorities and processes that have been entrenched since the commencement of the initial SML in 1989, clan agents are appointed, not elected. We considered this argument and rejected it in (3) above. 

22.    The appellants previously were clan agents under the authority conferred on them for purposes of the special mining lease under which the mining project was commenced, but we consider that upon the expiry of that special mining lease their authority including the power to appoint new clan agents as and when required, was extinguished. It follows that clan agents would need to be appointed for the new special mining lease. The validation exercise was a fair, democratic and transparent process sanctioned by orders of the National Court to achieve that outcome.

23.    There was no error of law by the National Court in making orders that provided for election rather than appointment of clan agents. The originating summons in each case was not defective and there was no abuse of process evident from the way each of the proceedings was conceived and prosecuted. 

(5)	CONSENT ORDERS MADE IN ORIGINATING SUMMONS PROCEEDINGS THAT WERE DEFECTIVE AND AN ABUSE OF PROCESS

24.     The appellants maintain that the relief sought in the National Court proceedings lacked a legal basis, disclosed no reasonable cause of action and that the proceedings were an abuse of process. They argue that:

•	all plaintiffs, particularly Mark Tony Ekepa in OS 102 of 2021, failed to give notice to the State of their intention to make a claim against the State under s 5 of the Claims By and Against the State Act;

•	there was no cause of action being prosecuted against the named defendants including the State, rendering the proceedings frivolous and vexatious; 

•	signing and other requirements of the National Court Rules were not adhered to, for example OS 193 of 2021 was signed only by Nelson Lawyers, while other parties to the proceedings failed to file a notice of intention to defend or notice of appearance; in OS 208 of 2021 only the State was formally before the court, other parties did not formally join the proceedings, yet signed the draft consent orders that went before the Court for endorsement; in OS 47 of 2021 only an in-house lawyer for the IPA signed the draft consent, but there was a failure to sign the originating summons; and generally the requirements of Order 7 rule 2 were breached as steps were repeatedly taken in all proceedings without filing a notice of intention to defend or seeking leave of the Court to take the steps.

25.    We do not agree that it was necessary to give notice of an intention to make a claim against the State as in all proceedings in which the State was named as a defendant no “claim”, as that term is used in the Claims By and Against the State Act, was being made. If we are wrong in that view and there was an arguable case that a s 5 notice was required, it was up to the State to raise that issue. Third parties such as the appellants have no right to raise it.

26.    The fact that there was no cause of action against the State that was genuinely in issue did not mean that the proceedings were frivolous or vexatious. Nor did it mean that the proceedings were a sham. Anyway, it was up to the State to raise these issues. If it chose not to do so, that was a matter for the State and it was not incumbent on the court to intervene, to correct a non-existent problem.

27.    As for the signing and filing requirements of the Rules, such requirements can be dispensed with at the discretion of the Court. The National Court controls the proceedings before it. The Rules are intended to facilitate proceedings, not to frustrate them. 

28.    There was no error of law on the part of the National Court in allowing the proceedings before it to flow without interruption by the Court. The originating summons in each case was not defective and there was no abuse of process evident from the way each of the proceedings was conceived and prosecuted. 

(6)	CONSENT ORDERS MADE DUE TO ABUSE OF STATUTORY POWERS AND FUNCTIONS BY MINERAL RESOURCES AUTHORITY AND INVESTMENT PROMOTION AUTHORITY

29.    The appellants argue that the actions taken by the MRA and the IPA to facilitate the validation exercise were unprecedented and beyond the scope of their authorised powers and functions and compromised their independence as they had interfered in the control and management of the Porgera Landowners Association, a private entity.

30.    We do not agree. None of the actions of the MRA and the IPA, all of which was sanctioned by the orders of the National Court, involved a breach of their governing legislation. Far from compromising their independence, their conduct was in our view an assertion of their independence and reflected a proper and pro-active approach by statutory authorities to ensure that the potentially vexed issue of customary land ownership could be validated to enhance the prospects of successful implementation of the second SML for the Porgera gold mine. 

31.    We are not persuaded by the submissions of the appellants that the governmental bodies involved in the originating summons proceedings or their lawyers acted for sinister or improper motives or that the National Court allowed itself to be used as a rubber stamp to sanction contrived outcomes or that the interests of the appellants and their roles as clan agents and executives of the Porgera Landowners Association have been undermined.

32.    The evidence suggests that the Mineral Resources Authority and the Investment Promotion Authority facilitated the validation exercise for a proper purpose in the interests of all customary landowners affected by the special mining lease. There was no proven abuse of statutory powers and functions, and no error of law on the part of the National Court. 

CONCLUSION

33.    We are not persuaded that the orders the subject of these appeals are affected by error of law or fact in the manner contended for by the appellants. If we were so persuaded, we would still need to consider very closely whether the appeals should be allowed. 

34.    It is a remarkable feature of the appeals that the process the appellants have so strongly argued against – the validation exercise – has been carried out. Clan agents have been elected and the Porgera mine has reopened. Some of the appellants took part in the series of elections conducted as part of the validation exercise and exercised their opportunity to stand for election. 

35.     Justice Anis made pertinent observations in recently refusing an application by the appellants in SCA 96 of 2021 for an injunction to restrain 25 elected clan agents from holding themselves out as clan agents and participating in a development forum or signing any agreements for the new SML. In refusing the application his Honour stated in Akiko v Ekepa (2023) SC2442:

6.	There are 25 sub-clan agents or representatives of the Porgera landowners within the PGMA [Porgera gold mine area]. The appointment process had to be carried out primarily due to the fact that the old special mining lease for the mine had expired, and since then or recently, the State has issued this new SML over the PGMA.  This was part of the preparatory work that had been ongoing between the new developers, the State, the Enga Provincial Government and the Porgera landowners, that is, towards reopening of the Porgera Gold Mine (PGM).

7.	Pursuant to the 2 July consent order, the Porgera landowners all met in Porgera in Enga Province and elected their respective sub-clan agents through the validation exercise. The event took place between 26 July 2021 and 6 August 2021, which is about two years ago. After that, the landowners or the relevant parties filed proceedings OS 193 of 2021 and OS 208 of 2021 before the National Court, to affirm the appointments of the 25 new sub-clan agents.  On 15 September 2021 and 23 September 2021, the National Court affirmed the appointments in the two proceedings. …

27.	When I take all these factors into account, it appears, and I must say that I am not satisfied that the appellants have an arguable case. I am also not satisfied that the appellants will suffer prejudice if interim orders are not granted. I also make these conclusive findings taking into account the status quo of this appeal and what had or has transpired to date as I summarise herein: 

•	the validation exercise has been completed;
•	the validation exercise was completed two years ago;
•	in 2021, the appellants were voted out as sub-clan agents for their 2 respective clans;
•	the appellants have not challenged or disputed their clans’ decision in voting them out as their sub-clan agents;
•	the Porgera landowners within the PGMA have voted new 25 sub-clan agents to represent them as per the requirements under the Mining Act;
•	the two appellants have not received their respective sub-clan agents’ permission to retain the proceedings including the present appeal;
•	the newly appointed 25 sub-clan agents have voted in new executive members to the Porgera Landowners Association Inc;
•	the appointment of the executive members of the Porgera Landowners Association Inc was effected two years ago;
•	the Porgera Landowners Association Inc does not recognize these appeal proceedings, and it challenges the actions of the appellants and others in these consolidated appeal proceedings.

36.    We struggle to see the utility of the appeals, which have been overtaken by events. An appeal in such circumstances is an exercise in futility and open to dismissal (Ipara v Porgera Landowners Association (2020) SC1969). For the above reasons the appeals must be dismissed.  Costs will follow the event.

ORDER

(1)	Each of the appeals SCA 66 of 2021, 96 of 2021, 131 of 2021, 139 of 2021 and 7 of 2022 is dismissed.

(2)	The orders of the National Court the subject of those appeals are affirmed.

(3)	The appellants shall pay the respondents’ costs of the proceedings on a party-party basis which shall if not agreed be taxed. 
_______________________________________________________________
Harry Lawyers: Lawyers for the appellants K Ondalane & Y Lare
Saulep Lawyers: Lawyers for the appellants N Akiko, R L Nalepe & P Menepa
Mawa Lawyers: Lawyers for the respondent M T Ekepa				:
Nelson Lawyers: Lawyers for the respondents the Minister for Mining & MRA
Solicitor-General: Lawyers for the respondent The State
Nandape Lawyers: Lawyers for the Respondent Porgera Landowners Association Inc