Maravis v CEPA 2023
Failed application for leave to challenge an environmental permit
Concessions mentioned in this document:
N10754
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS(JR) NO. 104 OF 2023 [IECMS]
BETWEEN:
CHRISTIAN MARAVIS on behalf of himself and other concerned
Customary Landowners of WANIGELA (SEMORER) VILLAGE, TUFI
LLG, IJIVITARI DISTRICT, ORO PROVINCE whose names appear in
schedule A to this Originating Summons
Plaintiffs
AND:
JUDE TUKULIYA as the Chairman of the Environment Council and the
Acting Managing Director of the CONVERSATION AND
ENVIROMENT PROTECTION AUTHORITY
First Defendant
AND:
ENVIRONMENT COUNCIL
Second Defendant
AND:
CONSERVATION AND ENVIRONMENT PROTECTION
AUTHORITY
Third Defendant
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant
AND:
NORTHERN FORREST PRODUCTS LIMITED
Fifth Defendant
Waigani: Dingake J
2023: 23rd November
2024: 21st February and 11th & 15th & 28th March
JUDICIAL REVIEW – practice and procedure – application for leave for
judicial review filed by plaintiff – competency issue raised by defendants –
defendants contend plaintiff failed to seek consensus from all intending
plaintiffs to act in a representative capacity – defendants also contend
plaintiff failed to give sufficient instructions to the lawyer or law firm to
represent them - whether plaintiff has met the prerequisites for
representative action - whether specific instructions were given to CELCOR
Lawyers to act for intended Plaintiffs – plaintiff has proven sufficient
prerequisites have been met to act in a representative capacity – every
intending Plaintiff must give specific instructions (evidenced in writing) to
their lawyers to act for them – only one clan has given instructions to
CELCOR lawyers to act for them – no specific instructions from all the
other plaintiffs to act for them – requirements prescribed in Simon Mali
case not met - application for leave refused
Cases Cited
Simon Mali v The State (2002) PNGLR 15
Counsel
Mr. John Jnr Ules, for the Plaintiffs
Mr. Justin Isaac & Ms. Rosa Mobiha, for the Defendants
RULING
28th March 2024
1. DINGAKE:This is my brief ruling on the Plaintiff’s application for
leave.
2. The Plaintiffs through their Originating Summons sought leave to
review the decision of the Second Defendant dated the 18th of February 2022.
3. The First, Second and Fourth Defendants raised two (2) competency
issues, namely, (a) that the Plaintiff’s pleadings are not complete in that the
Plaintiff only pleaded that it seeks leave to review the decision of the Second
Defendant dated 18th February 2022, to uplift the suspension of Environment
Permit, but fails to plead the issuance of the Environment Permit; (b) that the
Plaintiff’s pleadings are defective in that there is no clear date as to when the
purported nineteen (19) Plaintiffs met and resolved to appoint Mr. Christian
Maravis to represent them; and further that the Consent of Authority Form to
act does not state which particular law firm or lawyer was given instructions
by the nineteen (19) Plaintiffs.
4. The Plaintiffs are the concerned citizens and customary landowners of the land over which the Environment Permit was issued to the Fifth Defendant, and also customary owners of the forest resource, water and river systems over which the Defendant is currently carrying out its forest clearing activities. 5. The Plaintiffs allege that the Fifth Defendant’s operation had caused and continue to cause destruction and pollution to the river systems and water resources that the Plaintiffs rely on for their living. 6. The argument by the First, Second and Third Defendants outlined earlier that the Plaintiff does not meet the prerequisites of a representative action or suit in line with the case of Simon Mali v The State (2002) PNGLR 15, is opposed by Counsel for the Plaintiff, who argues that the authority of Simon Mali requires that intended Plaintiffs must give consent and not every person in the clan. 7. On the papers before me, it seems plain that the Plaintiff has attached a schedule to the Originating Summons which provides the names and signatures for all intended Plaintiffs within the ILG or Clan who have consented to this proceeding being brought on their behalf. 8. In the result, I am satisfied that the Plaintiff has been duly authorized by the “intended Plaintiffs” within the meaning of that phrase as used in the Simon Mali case (supra). 9. The above holding however, does not dispose of the matter of the authority of the lawyers to represent the Plaintiffs which is an important requirement as stated in the Simon Mali case (supra). 10. On the question of whether specific instructions were given to CELCOR Lawyers to act for intended Plaintiffs, I read and considered Annexure “PG1” attached to the supporting Affidavit of Mr. Paul Gambud (Doc No. 6). Annexure “PG1” purports to be the Minutes of the Sabar clan meeting held on the 28th of April 2023. The said minutes are signed by one Judith Gambud as Secretary. The said minutes record that the Sabar clan has agreed that Celcor Law firm act for them on all legal issues surrounding Sabar clan. The minutes do not meet the strict requirements of the Simon Mali case (supra) that instructs that each and every intending Plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. 11. I therefore hold that there was failure to comply with the Simon Mali (supra) case in so far as the authority given to lawyers is concerned.
12. In the circumstances, the Plaintiffs application not being compliant with the requirements of representative action, is liable to be dismissed, on this ground alone. 13. In the result, the leave application is refused with costs, such costs to be agreed or taxed. _______________________________________________________________ Celcor Lawyers: Lawyers for the Plaintiff Lawama Lawyers: Lawyers for the Defendants
