Mayur v Mirisim [2024]
Dispute over logging versus carbon trade in the Kamula Doso area of Western Province
Logging companies mentioned in this document:
N10649
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) 81 OF 2022
MAYUR RENEWABLES LIMITED
Plaintiff
V
THE HONOURABLE SOLAN MIRISIM (MP), MINISTER FOR
FORESTS
First Defendant
AND:
FAITH BARTON, CHAIRPERSON – NATIONAL FOREST
BOARD
Second Defendant
AND
PAPUA NEW GUINEA FOREST AUTHORITY
Third Defendant
Waigani: Kandakasi DCJ
2023: 16th November
2024: 22nd January
JUDICIAL REVIEW – Decision cancelling timber permits for
development of carbon offset project – Enabling legislation - Forestry
Act - Lacking specific provision – Objectives of Act include
conservation and preservation of forests – Broad enough to cover
carbon offsetting projects – Climate Change Emergency – usual
approach to any other emergency applicable - Parties deciding in
favour of project and agreeing to backfill the legislative void – Change
in political leadership – Minister pro logging - Wrong provision used to
cancel – Prescribed process not used– Plaintiff not accorded
opportunity to be heard and heard before decision – Decision failing to
consider Climate Change Emergency factors underpinning grant of
Permits – No evidence of policy shift in favour of logging – No reasons given – Failure to take into account principles of environmental rule of law - Decision unreasonable – Review granted – Decision quashed and restraining orders issued. ENVIRONMENT LAW – Climate Change Emergency - Urgent and immediate actions in mitigation and adaptation required – Measures often taken in an emergency applicable whether prescribed by law or not - International treaties, conventions, protocols and agreements – Environmental Rule of Law – Relevant Principles – World Declaration - Obligation to protect nature - Right to conservation, protection, and restoration of health and integrity of ecosystems - Inherent right of nature to exist, thrive, and evolve - Right of each human, present and future, to a safe, clean, healthy, and sustainable environment - Taking legal and other measures to protect and restore ecosystem integrity and to sustain and enhance the resilience of social-ecological systems - Principle of in dubio pro natura, that is to say, in cases of doubt, all matters before courts, administrative agencies, and other decision makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment. LAWYERS – Duty of Lawyers – Lawyer not to purport to represent a party without instructions – Effect of – Possible fraudulent misrepresentation - Duty to be honest and candid with clients, advise and assist clients to resolve matters promptly and avoid unnecessary litigation – Duty not to take up a position that is not support by statutory or case law and take up a position that is against relevant law - Not to purport to represent a party from whom they have no instructions – Effect of – Possible fraudulent misrepresentation. Facts Compelled by Climate Change related risks and the need to take urgent mitigation and adaptation measures, PNG through the then Minister for Forests and the PNG Forest Authority (PNGFA) granted three timber permits (Permits) to the plaintiff (Mayur). Mayur and the Defendants as well as the Climate Change Development Authority (CCDA) and the Conservation and Environment Protection Authority (CEPA) signed a Heads of Agreement (HOA) which included an undertaking to procure and provide all authorisation necessary for Mayur to develop the Carbon Offset Project or REDD+ Scheme and a similar undertaking was also given in a Operator’s Tri-Partite Deed (OTPD) which included registration as a Forest Industry Participant (FIP). Based on those
agreements, Mayur received a request by the then Chairman and Minister
for Forests, whereupon it immediately paid for and applied to be
registered as a FIP prior to the HOA being executed.
A former Minister of State who was pro logging on becoming Minister
again, unilaterally, independently and without the involvement of the
PNGFA and National Forest Board (NFB) cancelled the Permits
(Decision) using wrong provisions of the Forestry Act (Act). He did so
without first giving Mayur notice, it’s right to be heard, and hearing
Mayur. The Minister also purported to give directions under s. 97 of the
Act. The Decision was allegedly based on Mayur not being a FIP and the
Act not expressly providing for the kinds of permits issued to Mayur. The
Minister and the Defendants did not produce any evidence of the Minister
before making the Decision, taking into account the Climate Change
Emergency and the need for REDD+ Schemes and the full background
leading to the grant of the Permits at the first place. The Minister and the
Defendants also failed to disclose what caused the Minister to arrive at
his Decision unilaterally and summarily. Mayur claimed the Minister
acted ultra vires the provisions of s.86 of the Act, failed to comply with
the statutorily prescribed process, failed to give notice of intention to
cancel the Permits, accord it the right to be heard and hear it before
making the Decision. Also, Mayur submitted that, the Minister’s decision
was unreasonable and was tainted with bias. The Minister did not appear
and did not instruct any lawyer to appear for him and his instructions in
response to Mayur’s claims. The lawyer was therefore excluded from
further participating at the hearing. The 2nd Defendant (NFB) and the
3rd Defendant (PNGFA) argued that since Mayur was not a FIP and the
Permits had no specific provision for them in the Act, they were illegal.
That gave the Minister the power to make the Decision in the way the
Decision was arrived at.
Held
1. A lawyer can only appear in Court and make representations on
behalf of a party with the party concern’s instructions. The absence
of any instructions could amount to a lawyer acting fraudulently and
misrepresenting the party concerned. In the present case, since
counsel for the Minister did not seek and secure specific instructions
to represent the Minister, he was precluded from appearing for and
making any submissions on behalf of the Minister.
2. The Minister acted ultra vires his powers and failed to comply with
the relevant process and procedures provided for under s. 86 of the
Act when he purported to exercise powers under s. 97 also of the Act
which applies to licenses issued under s. 91 and not permits under
s.73 of the Act. Section 86 being the correct and directly applicable
provision, expressly sets out the process for a cancellation of the
Permits. There was no evidence of following that prescribed process
or anything close to it to arrive at the Decision.
3. The failure to follow the process deprived the Minister of duly
considering: (1) the serious Climate Change Emergency related
challenges the world is facing globally; (2) PNG’s international and
domestic obligations; (3) the relevant government policy related
discussions; (4) and responses including: (i) the enactment of the
Environment Act 2000 (EA2000) as amended, the Climate Change
(Management) Act 2015 (CC(M)A; (ii) and the decision to take real
and meaningful steps under the REDD+ Scheme.
4. The Defendants argument that Mayur was not a FIP was rejected
because:
(a) It was based on a wrong and outdated Companies Act
provision and, in any case, Mayur was duly registered as a
company under the Companies Act 1997 (CA1997) and, as a
foreign owned company in PNG for the purposes of
conducting business lawfully in PNG.
(b) The PNGFA and other relevant authorities undertook
through the HOA and the OTPD to help procure and provide
all necessary authorisation for Mayur to develop the Project
which included registration as a FIP, following which Mayur
received a request by the then Chairman and Minister for
Forests and it immediately paid for and applied to be
registered as a FIP.
(c) By letter dated 6 January 2022, the managing director
of PNGFA advised the then Minister that “all processes
under the Act have been fully completed and the grant of the
first ever timber permits relating to carbon trading over the
Kamula Doso FMA Blocks are all in order now for your
grant as attached”.
(d) The claim of Mayur not being a FIP was given
belatedly after the Minister cancelled the Permits pursuant
to s. 97 of the Act which was contrary to the legal
requirement to give reasons at the time of making a decision
even in cases where there is no statutory requirement to do
so. Adopted and applied: Amet v. Yama (2010) SC1064 and
Michael Wapi v. Dr. Eric Kwa & Ors (2022) N10362.
5. The Defendants’ claim of illegality was also rejected because the
decision leading to and the eventual grant of the Permits was a
deliberate and well considered decision compelled by the Climate
Change Emergency and the need for urgent actions which includes,
prevention of further deforestation and preservation of what is
remaining and at the same time, gain economically from taking such
steps. The rejection was also based on no evidence of the Minister
having considered the following:
(1) The EA2000 and several amendments to that Act with the
latest one being the Environment (Amendment) Act 2012 were
passed to domesticate international conventions, treaties, or
protocols and agreements and have a comprehensive
environment legislation that is more current and more modern.
(2) Successive governments and Ministers have stressed the
need to preserve the nation’s forest resources and to introduce
carbon offset projects, comply with the REDD+ Scheme,
which is for the forests to be saved from clearing and credits
are issued for the carbon stored in the forests left standing.
(3) PNGFA announced in the Draft 2012 National Forest Plan
that four REDD+ Scheme pilot programs were underway and
one, the April Salumei Project in East Sepik was launched
despite there being no specific legislative provision providing
for it.
(4) The significance of the passing of the CC(M)A with detailed
regulations yet to be promulgated.
(5) A deliberate and considered decision was made by the then
Minister Schnaubelt to issue Directions for the development
of an appropriate policy document, to actualize carbon
offsetting projects with a legislative framework for it.
(6) The Defendants accepted and agreed with the process
employed by the former occupiers of the authorities as did the
Office of Climate Change, the relevant Provincial Governor,
and the landowners.
(7) The Minister for Climate Change has endorsed and approved
the Project and has indicated how the Project should proceed.
He also specifically supported Mayur’s “carbon offset”
proposals.
(8) The detailed process employed by the former Minister and
the holders and or occupiers of the relevant offices of the
Second and Third Defendants needed to be followed.
(9) A timber permit howsoever granted can only be cancelled
using the process provided for by the Act and employed to
grant the Permits at the first place. Section 86 is the relevant
prescribed process for cancellation of Timber Permits issued
under s. 73, which the Minister did not use and instead used
an incorrect provision, s. 97 of the Act which is the prescribe
process for the cancellation of Licenses issued under s. 91.
(10) The objectives under s. 6 (a) and functions under s. 7 (1) (j)
and (k) of the Forestry Act prioritised “the management,
development and protection of the Nation’s forest resources
and environment in such a way as to conserve and renew them
as an asset for succeeding generations” which was broad
enough to cover the Permits issue in absence of any express
exclusion of granting such permits and restricting timber
permits only to logging and or cutting of trees.
6. No provision is made under s. 86 or 97 for the Minister to issue any
directions but the Minister has power to issue directions under s. 47
(2) (c) (i) and s. 7 (2) of the Act for carrying out of the objectives of
the Act provided for in s. 6 which amongst others, are aimed as a
matter of priority at a wise use, management, development, and
protection of the nation’s forest resources and environment as a
renewable asset in ways that will conserve and renew them as an
asset for present and succeeding generations.
7. The principles of natural justice as enshrined in s. 59 of the
Constitution, have been incorporated into the provisions of ss. 86
and 97 of the Forestry Act which require the Minister to give notice
of an intention to cancel the Permits with the reasons, accord
Mayur an opportunity to be heard, hear it and then come to a
decision, which the Minister failed to do. Additionally, the process
adopted was against the prescribed process and procedure under
the Act which amounted to an unauthorized summary
determination. Adopted and applied Premdas v. The State [1979]
PNGLR 329, Nilkare v. Ombudsman Commission of Papua New
Guinea [1999] PNGLR 333 and Pruaitch v. Manek (2019) SC1884.
8. The Decision was unreasonable in the Wednesbury sense because
the decision maker, the Minister:
(a) acted ultra vires his powers and failed to comply with the
prescribed process and procedure, meet the requirements of
the general principles of natural justice, give notice of his
intention to cancel the Permits, accord Mayur an opportunity
to be heard and hear it before arriving at the Decision;
(b) failed to give any consideration to the issue of Climate
Change Emergency, the need to conserve and or preserve the
remaining rainforests of the country and encourage and allow
for more REDD+ schemes or projects;
(c) failed to give any consideration to the matters that
underpinned the grant of the Permits and the backfilling of the
void in the legislation to allow for permits for REDD+
schemes or projects;
(d) failed to give full reasons for his Decision at the time of
making the Decision;
(e) failed to disclose what trigger the summary Decision, and
disclose if there has been a shift in government policy on the
Climate Change Emergency and the need for mitigation and
adaptation steps to be urgently taken;
(f) failed to take into account the interest of the land-owning
groups who stood to be adversely affected by the Minister’s
Decision; and
(g) failed to note that there are current National Court orders
prohibiting the grant of any logging permits or forest clearing
licenses until the PNGFA, CCDA and CEPA appropriately and
sufficiently account to the satisfaction of the Court that all
such permit holders and licensees have operated and are
operating within their respective environmental permits with
minimal or no serious harm or damage to the environment.
9. The decision was tainted by bias which was inferred from the
Minister failing to rebut claims of him being pro logging and was
against any REDD+ Scheme or project, the earlier findings on the
grounds of ultra vires, the way Minister went about unilaterally,
non-compliance of prescribed process, failing to observe the
principles of natural justice as incorporated into s. 86 and 97 of
the Act and arriving a decision which no fair-minded and
reasonable decision maker could have made.
10. Counsel for the Defendants failed to discharge their duty to
the Court and their clients and his failure to appropriately advise
the Defendants to have the matter resolved in view of the findings
in each of the grounds of the review application.
11. For these reasons, the review application was granted with
the Decision, the subject of the proceeding quashed, and the
interim restraining orders made permanent with costs to the
Plaintiff.
Cases Cited: Church of Jesus Christ of Latter-Day Saints Inc v. Kimas [2022] SC2280 Ken Norae Mondiai & PNG Eco Forestry Forum and John Danaiya v. Wawoi Guavi Timber Company Limited and PNGFA [2007] N3120 Saonu v. Mori [2021] N9170 Kula Oil Palm Ltd v. Tieba [2021] N9559 Morua v. China Harbour Engineering Co (PNG) Ltd [2020] N8188 Church of Jesus Christ of Latter-Day Saints Inc v. Kimas [2022] SC2280 Rose Kekedo v. Burns Philp (PNG) Ltd [1988-89] PNGLR 122 Dusava v. Justice Doherty [1999] PNGLR 419 Ombudsman Commission v. Yama [2004] SC747 Tapale v. Secretary, Department of Southern Highlands & Southern Highlands Provincial Government [1995] PNGLR 22 Port Services PNG Pty Ltd v. Gioctau Tanabi [1995] PNGLR 391 Amet v. Yama (2010) SC1064 Ombudsman Commission v. Peter Yama (2004) SC747 Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797 William Hagahuno v. Johnson Tuke (2020) SC2018 Michael Wapi v. Dr. Eric Kwa & Ors (2022) N10362 William Hagahuno v. Johnson Tuke (2020) SC2018 Electoral Commission v. Kaku (2019) SC1866 Lee & Song Timber (PNG) Co. Ltd v. Burua [2003] PNGLR 21 Premdas v. The State [1979] PNGLR 329 Nilkare v. Ombudsman Commission of Papua New Guinea [1999] PNGLR 333 Pruaitch v. Manek (2019) SC1884 Application by Herman Joseph Leahy (2006) SC981 Other Sources Cited: D. Smith Judicial Review of Administrative Action (3rd Edn) 1977. Asian Development Bank, Climate Change, Coming Soon to a Court Near You, International Climate Change Legal Frameworks, December 2020 at https://www.adb.org/sites/default/files/publication/660321/ international-climate-change-legal-frameworks. https://www.unep.org/climate-emergency. Scientific American, “Deforestation and Its Extreme Effect on Global Warming” found at https://www.scientificamerican.com/article/ deforestation-and-global-warming. ADB, “Climate Change, Coming to a Court Near You, International Legal Frameworks”, December 2020 at p. 115, found at: https:// www.adb.org/sites/default/files/publication/660321/international-climate- change-legal-frameworks.pdf.
Counsel:
Mr. I. Shepherd, for the Plaintiff
Mr. J. Unua, for the First and Second Defendants
DECISION ON SUBSTANTIVE REVIEW
22nd January 2024
1. KANDAKASI DCJ: With leave granted on 14th December 2022,
the Plaintiff, Mayur Renewables limited (Mayur) is seeking a reviewal of
the 1st Defendant (Minister’s) decision made on 27th May 2022
(Decision). That Decision decided to cancel Forest Carbon Concession
and Trading Permits numbered FCCTP-01, FCCTP-02 and FCCTP-03
granted to Mayur over Kamula Doso FMA Blocks 1, 2 & 3 in Western
Province of PNG (the Permits).
2. Mayur argues that the Decision of the Minister was ultra vires his
powers under the Forestry Act 1991 (Forestry Act or the Act), it was
unreasonable and tainted with bias. Further, Mayur argues the Decision
failed to comply with the relevant provisions of the Act, meet the
requirements of natural justice and failed to consider relevant facts and
circumstances. The National Forest Board (NFB) and the Papua New
Guinea Forest Authority (PNGFA) are arguing to the contrary.
3. As for the Minister, Mr. Bua announced appearance for him but
when questions of what the current Minister’s position on this matter is,
Counsel indicated he has no instructions at all from the Minister in
respect of the entire proceedings. Upon that revelation, the Court asked,
Counsel by what authority or right was he appearing. He responded, he
could assist the Court with submissions only on questions of law. That
submission reminded me of another senior lawyer with the Solicitor
General’s office, Ms B. Kulumbu appearing in the matter of Church of
Jesus Christ of Latter-Day Saints Inc v. Kimas (2022) SC2280, per
Kandakasi DCJ, Polume-Kiele & Dowa JJ.
4. In the above case, at the commencement of the hearing of an appeal,
Ms Kulumbu who appeared for the first to the fifth respondents, did not
inform the Court of her seeking and failing to receive instructions from
those parties for the purposes of the trial and later the appeal. Only during
the hearing and after the Court raised the issue of what was her clients’
instructions specifically on the issues of due compliance of the relevant
provisions of the Lands Act 1996 as amended, she disclosed her lack of any
instructions from those parties. Speaking against that conduct, I said at [49]:
“What counsel has done here is contrary to the decision of this
Court in The State v. Zacchary Gelu & Manorburn Earthmoving
Limited (2003) SC716, per Amet CJ, Kapi DCJ, and Los J. There,
the Court held the Solicitor General (SG) has no power to act on
his or her own. Instead, the SG must act only on the specific
instructions of the Attorney General (AG) in all matters where the
State is a party, or a matter concerns the State.”
5. As it was too late in that case to preclude Ms Kulumbu, the Court
allowed her to continue to represent the parties she appeared for. In doing
so I said at [55]:
For now, the decision of this Court in Manorburn precluded Ms
Kulumbu or indeed anyone for and on behalf of the first to the fifth
respondents appearing in Court without the specific instructions of
the AG. We nevertheless allowed counsel to continue to assist with
submissions on the substantive issues presented before us. This
cannot and will not be repeated. In future, unless the decision in
Manorburn is expressly reversed, the SG or anyone from his office
cannot and will not appear as of right. They shall instead do so with
evidence of being instructed in each case by the AG. Without such
instructions the SG has no right of audience before any Court in
purported representation of the State or any State entity.”
6. Polume-Kiele J, addressed the specific issue of Counsel not
receiving the instructions of her client at [58] in these terms:
“In the hearing of the appeal, Ms. Kulumbu did enter an
appearance for the first to the fifth respondent. Ms. Kulumbu did
not give any indication that she did in fact had received no specific
instructions from the first to the fifth respondents to either oppose
or defend the National Court proceedings or this Appeal.”
7. The decision in the above case was delivered on 19th August 2022,
well before this matter came up for hearing before me on 16th November
2023. Hence, counsel for the Minister ought to know that, without the
specific instructions from that defendant, he had no legal or factual basis
to appear for that party or at all. A lawyer’s ticket or license to appear on
behalf of a party in any Court and represent a party, is the party concern’s
specific instructions for the lawyer to do so in any proceedings. A lawyer
to appear in Court and purport to represent a party from whom the lawyer
has no instructions, would be most unprofessional and could amount to
fraudulent misrepresentation.
8. Bearing the above judgment in mind, I precluded Mr. Bua from
making any further representation and submissions for or on behalf of the
Minister in this case.
Issues for Determination
9. Based on the submissions of the parties, the issues for this Court to
consider and determine are, was the Decision of the Minister dated 27th
May 2022:
(a) ultra vires his powers under the Forestry Act? or
(b) non-compliant with the relevant provisions of the Act? or
(c) unreasonable in the Wednesbury sense or failed to consider
relevant facts and the circumstances? or
(d) arrived at in breach of the principles of natural justice? and
or
(e) tainted with bias or there was a reasonable apprehension of
bias?
Relevant facts
10. The facts giving rise to these issues and this proceeding are not in
any serious contest. For Mayur, they are in the following affidavits:
(a) Affidavit of Paul Mulder filed 28th July 2022;
(b) Affidavit of Paul Mulder filed 8th March 2023;
(c) Affidavit of Paul Mulder filed 9th October 2023; and
(d) Affidavit of Thomas Charlton filed 2nd November 2023.
11. For the NFB and the PNGFA are in the following affidavits:
(a) Affidavit of John Mosoro filed on 22nd August 2022 in OS
46 of 2022 (IECMS) PNGA v. Mayur Renewables PNG Ltd;
(b) Affidavit of Debbie Akane filed on 25th August 2022;
(c) Affidavit of Tobias Dalid filed on 28th October 2022;
(d) Affidavit of Rabbie Lalo filed on 18th October 2023;
(e) Affidavit of Tobias Dalid filed on 18th October 2023; and
(f) Affidavit of John Mosoro filed on 31st January 2023.
12. The Permits, the subject of the Decision and this proceeding, had
been granted to Mayur by the then Minister, Honourable Walter
Schnaubelt on 7th January 2022. That was on the recommendation of the
NFB dated 6th January 2022. The Permits were for 35 years
commencing on 5th January 2022 pursuant to and were issued under s. 73
of the Forestry Act.
13. By his letter dated 6th January 2022, to the then Minister, the
Managing Director of PNGFA, described the Permits as the “first ever
Timber Permits pertaining to Carbon Trading over the Kamula Doso
FMA Blocks” (Kamula Doso). The Managing Director also confirmed in
the same letter that “All processes under the Act have been duly
completed.”
14. Kamula Doso comprises of 3 blocks totalling approximately
791,400 hectares in the Western Province. It has been the subject of much
controversy and litigation. The area was first identified in the Provincial
Forest Management Plan prepared in 1995 to 1996. The area adjoins
Wawoi Guavi Blocks 1, 2 & 3 TRP operated by a Rimbunan Hijau
subsidiary since 1981 being Wawoi Guavi Timber Company Limited
(WGTC). In about 1996 WGTC applied to PNGFA for an “Extension” of
its existing TRP areas pursuant to Sections 137 and 143 of the Forestry
Act, thereby avoiding the requirement for compliance with the extensive
provisions applicable to Forest Management Areas introduced by the Act.
The manner in which the extension was granted was controversial
enough to attract an “own initiative” investigation by the Ombudsman
Commission of Papua New Guinea (OC) in 2002 and its report is
available in the OC’s Annual Report of 2002. The Report was extremely
critical of the NFB, the Managing Director of PNGFA, the Minister for
Forests and Dr Iamo who at that time was the representative of the Office
of Environment and Conservation on the NFB. Amongst the
recommendations of the OC were that:
(a) That the NFB make a formal determination to revoke its
decision of 4th February 1999 to award Kamula Doso as an
extension to the existing Wawoi Guavi Timber rights permit
and to declare that the decision is a nullity and to deal with all
future project proposals relating to Kamula Doso strictly in
accordance with the Act.
(b) That the NFB and the Department of Environment and
Conservation ensure that the provisions of the Environmental
Planning Act 1978 are complied with the allocation and
implementation of all forest development projects in the
country.
(c) That all provincial forest management committees ensure
that their duties under the Act are fully understood and strictly
and diligently complied with.
(d) That Section 7 (2) of the Act be amended so that it expressly
states that the Minister for Forests may only direct the Board
on matters of policy and not on operational matters.
(e) That the NFB make clear policy guidelines on the size of the
forest management area to be advertised as a stand-alone
project or as an extension and publish those guidelines in the
National Gazette.
(f) That the NFB undertake annual reviews of logging
operations in the country to ensure that all developers are
complying with their obligations under each forest
management agreement and that the Board rejects future
applications from those who have failed to meet their
statutory, contractual, or fiduciary obligations.
15. The OC also observed that the Project had not commenced, by
2002 because of non-compliance with the Forestry Act and delays in
preparing proper Forest Management Agreements and undertaking a
proper allocation process under the Act.
16. Despite the OC’s findings, Forest Marketing Agreements (FMAs)
were executed in 1997. These are referred to in a decision of the Late
Justice Lay in proceedings Ken Norae Mondiai & PNG Eco Forestry
Forum and John Danaiya v. Wawoi Guavi Timber Company Limited and
PNGFA (2007) N3120 (the Mondiai Proceedings). Wawoi Guavi Timber
Company Limited had attempted by another proceeding to obtain an
order for mandamus to force PNGFA to grant it a timber permit over
Kamula Doso. It entered a Deed of Settlement with PNGFA pursuant to
which the proceedings were discontinued in exchange for an undertaking
by PNGFA to award a timber permit over the Kamula Doso areas to
WGTC. Those proceedings ended with a deed of settlement. That
settlement became the subject of the Mondiai Proceedings which continued to approximately 2014. Several parties were subsequently added to the proceedings including, a landowner company, namely, Tumu Timbers Development Limited, the Office of Climate Change and Carbon Trade as it was then named. The proceedings were seemingly abandoned and discontinued when WGTC withdrew its interest in the Kamula Doso Projects. 17. Notwithstanding the foregoing, the defendants in these proceedings rely on FMA’s executed on 18th November 2020 and assert that the Kamula Doso Projects were endorsed by the NEC in 2008. This assertion is also made without any mention of this project in the relevant NEC decision, which is annexure “A2” to the Affidavit of Mr. Mosoro which is annexed to the Affidavit of Mr Akane. 18. According to the Defendants, nothing happened in the Kamula Doso Project Area until 18th November 2020, and in March 2022. At this time, following pressure from the then Minister Solan Mirisim, PNGFA began preparing option studies for Kamula Doso Blocks 1, 2 and 3. Under these FMA’s (which are the subject of OS No. 192 of 2020) about 10.5 million metric tons of logs will be removed from the Area. Government Policy 19. From the Affidavits filed by the 1st and 2nd Defendants, Minister Mirisim who was Minister for Forests from 13th June 2019 until 24th December 2020 and again after 10th January 2022. He was pro-logging in Kamula Doso. On the other hand, Minister Schnaubelt who was Minister for Forests from 24th December 2020 to 10th January 2022 was pro carbon offset projects such as those proposed by Mayur. 20. Critically, long before international or global focus turned to preservation of the limited forest resources to mitigate against the onset of Climate Change related challenges globally, concerns over the exploitation of forestry landowners led to the Barnett Inquiry into the forest industry in 1987. This was followed by the intervention of the World Bank and others concerned with the depletion of the forest resources as well as corruption in the industry. That resulted in the implementation of the 1991 Forestry Act and the 1991 National Forest Policy. 21. The 1991 Forestry Act and Regulations which were introduced in
1998 attempted to address the deficiencies identified by the World Bank
and others in the forest industry. For example, to obtain a forest
management agreement (FMA) (which replaced Timber Rights Purchase
Agreements TRPA), a complex 34 step process was introduced and
needed to be met. That included a requirement which involved the
customary landowners, the Provincial Forest Management Committees,
and the National Government. It also introduced transparency, project
guidelines for development, the requirement for an environmental permit,
a project agreement, compliance with a logging code of practice, the
National Forest Plan and the Policy. It also required the FMA project to
be fully sustainable.
22. The 1996 National Forest Plan contained the following mission
statement:
“To promote the management and wise utilisation of the forest
resources of Papua New Guinea as a renewable asset for the well-
being of present and future generations.”
23. To achieve that mission statement, the Forest Plan was to consider
various principles which included “manage, develop and protect the
Nation’s Forest resources and environment in such a way as to conserve
and renew them as an asset for succeeding generations.” In that context,
one specific objective was to collaborate with “the Department of
Environment and Conservation and other agencies [to] identify priority
areas that have significant environmental and ecological values which
need to be protected”. That Plan was to be revised in 2013. It was
however abandoned.
24. In The State of the Forests of Papua New Guinea published in 2008
the authors noted:
“The longer the current forest management regime continues, the
more difficult it will become to introduce changes towards
ecological sustainability and to avert local and more widespread
collapse”.
25. Also, the authors estimated that, the volume of timber exported
from PNG is only a small fraction of the tree volume that is damaged or
killed by logging and that “in reality, logging kills the majority of
merchantable trees, most of which are harvested, and also kills a
substantial proportion of non-merchantable trees”. It is well known that
the reduction in carbon available from these forests is therefore reduced
much more by the removal of the trees than by the logging process itself.
26. The common criticism of forest policy in PNG, which is raised by
the same authors, is the lack of investment in sustainable forest
management and reforestation. Very few major projects whether they be
TRPA’s or FMAs maintain any level of sustainability and reforestation is
practically non-existent. Further, there is no investment of the revenue
collected by the State in landowners’ future generation funds such as
those seen in the mining sector. There has also been minimal commitment
to the “wise utilisation of the forest resources of Papua New Guinea as a
renewable asset for the well-being of present and future generations and
protect the Nation’s forest resources and environment in such a way as to
conserve and renew them as an asset for succeeding generations”, even
though recent publicly documented statements made in the media by the
Prime Minister, current Forestry Minister and the PNGFA Managing
Director outline a commitment for PNGFA to do so.
27. The PNGFA in October 2009, published the National Forest
Development Guidelines (Forest Guidelines). In the foreword, the then
Minister for Forests, Hon. Belden Namah MP stated inter alia:
“It is now time to apply provisions of the Forestry Act and National
Forest Policy and improve the structure, re-shape past practices,
and improve funding arrangements to successfully move the
forestry sector into a new era.
With the support and endorsement of my colleague Ministers we
can achieve improved management and direction in the strategic
utilization of forest resources in the country.
Domestic and international focus has identified the benefits of the
forest sector, highlighting a greater appreciation of their social,
economic, environmental and development value. The imperative
of climate change means Papua New Guinea must prepare for the
establishment of carbon trading initiatives and the sustainable
utilization of the forest resources in this country.
In this Ministerial Review of the National Forestry Development
Guidelines, I commend the efforts of the PNG Forest Authority to
date, who have achieved a great deal, often under difficult
circumstances and with limited resources. It is my intention as
Minister for Forests to establish greater in-house capacity to meet
the current planning and performance demands, and the increasing
and expanding roles expected in future.
I recommend to Government those provisions in the Forestry Act,
for full autonomy of the PNG Forest Authority, must now be
implemented. The forest sector is strategic and economically
important and to meet the pending challenges and achieve
improved returns to the nation, this action must now be taken.
Significant increases in resources in technology, management and
administrative infrastructure are required to achieve the objectives
of the Forestry and the Medium-Term Development Strategy
(MTDS) of the Government.
The forest sector is a rural based activity and as such can provide
opportunities to improve employment opportunities, provide
service infrastructure and assist in stemming the increase in urban
drift, and the social problems that are a result.
These Guidelines attempt to direct efforts towards strengthening
our future economy, through better planning and utilization of the
forest resources. Improved direction, management, technical
support, and improved utilization level will generate better
economic returns. Clear Guidelines, adequate quality staff, and
adequate financial resources will enable us to fulfill the obligations
and responsibilities set out in the Forestry Act and the National
Forestry Policy.
This review of the NFDG has been developed by looking at the
problems experienced in the past and the expected future
challenges, and as Minister, I intend to review these Guidelines
again in three years so that we respond to the increasing challenges
in the future. The NFDG addresses new initiatives developed by
this Government, in respect of climate change and the anticipated
carbon trading scheme.”
28. Specifically on climate change, Section F of the Forest Guidelines
contains a “Change Initiatives Guideline” which identifies PNGFA as the
“Key Agency” to establish “in-house programmes of forestry and climate
change framework for action” in which private enterprise would be
encouraged to participate. The long-term goals were for the “[s]uccessful
development of effective forest-based strategies to contribute to the
global response to current and future environmental maintenance.”
29. Given this background and policy, the PNGFA in 2021 to 2022
through its Board and Minister, resolved to support projects which would
encourage the sale of carbon credits to approved markets including the
European Union Emissions Trading Scheme. That was 12 years after the
Forest Guidelines. This approach was evidenced by the execution of the
HOA, the Permits and the OTPD which are annexed to the Affidavit of
Paul Mulder sworn on 28th July 2022. Relevantly, the immediate
background to the grant of the Permits in the present case is set out in the
Statement and in the first Affidavit of Paul Mulder from paragraphs 1 – 9.
These can be summarised as follows:
(1) As a result of the negotiations referred to by Paul Mulder,
the Plaintiff entered the HOA with the PNGFA as represented
by Minister Schnaubelt for the establishment of the carbon
offset project in the Kamula Doso areas and other areas. The
HOA is Annexure “D” to Paul Mulder's Affidavit.
(2) By clause 3.1 of the HOA, Minister Schnaubelt undertook to
provide or procure the provision of any authorisation from all
relevant and necessary authorities such as the Climate Change
Development Authority (CCDA) and all necessary permits to
allow Mayur to develop and implement the projects referred
to in the HOA being the carbon offset projects.
(3) On the 23rd of December 2021 the Plaintiff entered the
OTPD with a landowner company and PNGFA.
(4) On the 23rd of December 2021 the Plaintiff received a letter
from the Managing Director of PNGFA stating “We look
forward to the successful development of the Kamula Doso
FMA Project” that is the carbon offset project.
(5) By Clause 3 of the OTPD the PNGFA agreed to ensure that
the Plaintiff was granted all authorisations necessary to carry
out the Project.
(6) Pursuant to Section 7 (2) of the Forestry Act, the Minister
issued ministerial directions to the 2nd Defendant noting that
these directions concern primarily Forest Policy and were
provided to fill the void in the legislation noting the following:
(a) Both National Forest Service (NFS) and NFB are
established by the Forestry Act and are part of the
PNGFA.
(b) The objectives of PNGFA include:
(i) the management, development and protection of the
Nation’s forest resources and environment in such a
way as to conserve and renew them as an asset for
succeeding generations; and
(ii) the maximization of PNG participation in the
wise use and development of the forest resources as
a renewable asset.
(c) The functions of PNGFA amongst others, are to:
(i) provide advice to the Minister on forest policies and
legislation pertaining to forestry matters; and
(ii) prepare and review the National Forest Plan
(Forest Plan) and recommend it to the National
Executive Council (NEC)for approval; and
(iii) select operators and negotiate conditions on
which timber permits, timber authorities, large scale
agricultural or other land use and road forest
clearing authorities and licences may be granted in
accordance with the provisions of the Forestry Act.
(d) The NFB includes the respective Departmental Heads
responsible for planning and implementation and
environmental matters or their nominees (who are to be
not lesser than the level of an Assistant Secretary in the
Public Service) appointed by the NEC.
(e) Pursuant to Division 3 of the Forestry Act, Forest
Management Committees (PFMC) are established in
each Province, and they include members of the NFS,
local community leaders and Provincial Government
representatives.
(f) Whilst the Act contemplates responsible management,
sustainable standards, and acknowledgement of climate
change related and or implied responsibilities, it does not
outline prescriptively carbon projects which necessitated
a Direction has been adopted as a transitional measure
pending legislative change to invoke the Forest Plans
ongoing stated intention to “address reforestation and,
establishment of permanent forest estate, carbon trading,
downstream processing, research and others”. The
Direction sets out a process by which the parties to the
HOA can achieve what is contemplated by the HOA.
The provisions of the Act relating to resource allocation
have been adapted and consideration given to the need
for transparency and consultation with all stakeholders.
The process identified in the Direction culminates in the
issuance of the Permits over the project area which is
also subject to review and compliance requirements as is
the case in any other timber permit issued under the Act.
(g) The main areas for legislative reform are related to
issues of deforestation, degradation, non-compliance,
carbon trading, carbon offsetting for PNG carbon
intensive down-stream processing, establishment of
permanent forest estates etc were identified during the
preparation of the documentation for the Mayur Project.
(h) The complex 34 step process which was introduced in
the 1991 legislation for Forest Management Agreement
(FMA’s) is inappropriate for alternate land use including
carbon trading and management projects. Amendments
to the Forestry Act are required to accommodate the
processes set out in the Direction and amendments to the
Regulations to include appropriate forms for applications
and permits etc.
(i) The amendments should reflect the following:
(i) The NFB and NFS to identify existing surveyed
logging areas suitable for carbon trading and
management projects (preferably FMA areas).
(ii) All proposals shall be treated as a forest
development proposal and be treated in the same
manner as an application under section 87(4) of the
Act on the basis that the annual cut will be less than
5000 m3. That is, consideration be given to the
grant of a Timber Permit without a feasibility study,
guidelines, advertisement, or the other procedures
set out in section 61 to 65 inclusive and will be non-
transferrable.
(iii) In lieu of the provisions section 66 to section 73
the following procedure for the treatment of the
proposals shall apply:
1. upon receipt of a proposal the NFB shall submit
the proposal to PFMC for its evaluation;
2. upon receipt of a proposal, the PFMC shall
prepare a report of its evaluation including a
recommendation to the NFB;
3. upon receipt of the PFMC's recommendation
the NFB shall, if the proposal makes adequate
provision for all aspects of the proposed
Project, execute the Project Agreement on
behalf of the PNGFA and recommend to the
Minister to grant a Timber Permit to the
applicant;
4. where the Minister accepts a recommendation
from the NFB he shall execute a Timber
Permit.
(j) The changes or additions to the legislation will not
only enable clarity between PNGFA and CCDA but also
enable any existing carbon trading and management
agreements to dovetail into such arrangements.
(k) The legislative changes suggested will save, novate,
grandfather, and continue to honour any existing carbon
trading and management agreements on foot, initiated
and implemented in full or part by the NFB through prior
Ministerial Directions.
(7) On 7th January 2022, Minister Schnaubelt executed the
Timber Permits.
(8) Subsequently, the Plaintiff entered into a Memorandum of
Agreement (MOA) with the Minister for Conservation and
Climate Change Authority.
30. After all the above, Minister Mirisim was reappointed Minister of
Forests on 10th January 2022. That caused a change of heart and agenda.
The steps taken by the Minister and PNGFA at the Minister’s behest are
set out in detail from paragraphs 9 (h) to (i) and 10 – 25 of the Affidavit
of John Mosoro which is annexed to the Affidavit of Akane. In short, the
Defendants say logging has been approved by a NEC decision number
182/2008 made in 2006. Earlier in November 2020, when Minister
Mirisim was Minister for Forests, he issued a directive to quickly
facilitate logging operations in Kamula Doso. That changed to carbon
offset or project when Minister Schnaubelt became Minister for Forests.
31. According to Mosoro, Minister Mirisim issued directions under s.7
of the Act to “cancel the Permits issued to the Plaintiff”. He says the
Direction is annexed to his Affidavit as Annexure “I”. But what is
annexed is the Minister’s Decision to cancel purportedly under s.97 of the
Act. That document is undated. Whether the alleged direction exists and
whether the direction was a government policy or was an operational
matter, I will consider and determine that under the issue of ultra vires,
and non-compliance of applicable statutory requirements.
32. Additionally, Mosoro, now asserts that Mayur was not a registered
Forest Industry Participant (FIP). His reason for saying that is contained
in Annexure “J” where he says, “the single shareholder listed was not
registered in PNG and cannot act as a single shareholder”. Neither the
instrument cancelling the Permits, nor the letter from the then managing
director of NFB, Ms Faith Barton, comment on the matters underpinning
the approval of the Permits for the first ever REDD+ Scheme and give
reasons for the cancellations. The letter only mentions Mayur not being a
registered FIP being the basis for the cancellation of the Permits.
33. Carbon Offset Projects require the support and approval of the
Conservation and Environment Protection Authority (CEPA) and CCDA
as acknowledged in the HOA. The CCDA granted approval for the
Project. A copy of the approval is annexure “H” to the Affidavit of
Mulder. The approvals refer to s 53, 56 and s 90 of the Climate Change
(Management) Act 2015 (CC(M)A). However, that Act has no prescribed
Regulations or forms that can be used or adopted for projects such as the
one proposed by the Mayur. Hence, the forms and agreements created by
PNGFA and Mayur were thus approved and endorsed by CCDA.
34. Recent amendments to the CC(M)A, passed by Parliament on 11th
October 2023, makes provision for the preparation of Regulation relating
to applications for permits to trade in carbon offsets and related. The
Minister for Environment, Conservation and Climate Change, and the
Acting Managing Director of the CCDA in a letter co-signed by them on
19th September 2023 reaffirm their support of the Kamula Doso and two
other carbon offsetting projects in the country and those project’s
developers, Mayur. They also reaffirm their MOA commitments and
undertake to ensure “the other involved Authorities and/or Departments
are aligned and support/guide the Project Proponent to navigate and
achieve each activity.” Finally, they stated:
“The Marape Rosso Government is committed to provide the
leadership and political direction to ensure that we translate the
noble intentions underpinning the climate change situation into
tangible results on the ground. The Government recognizes that
sea level raise, (sic) fast deteriorating critical infrastructure, food
and water insecurity, malaria and vector diseases, among other
climate change issues, are happening in our rural and urban
communities. Ultimately, our objective is to alleviate the plight
of our people facing these emerging threats.”
35. Given the serious existential risk and challenges posed by the
Climate Change Emergency caused mainly by human activity including,
deforestation, both the executive and judicial arms of government in PNG
have been and are continuing to address the challenges and have taken
several steps. Through the executive arm of government, PNG has at the
highest, signed up to several important international conventions,
agreements and or protocols dealing with the environment, its sound and
sustainable use, management, and preservation for future generations.
36. The key international treaties or conventions include the United
Nations Framework Convention on Climate Change (UNFCCC), with
197 countries signing up to it, including PNG, as of October 2020. That
convention entered into force on 21st March 1994. The convention is a
framework treaty for intergovernmental efforts to address Climate
Change. It aims to curb the average global temperature increase and its
impacts which, by the time the treaty was adopted, were already
inevitable.
37. The other key convention is the Paris Agreement on Climate
Change reached at the UN Climate Change Conference (COP21) in Paris,
France, on 12th December 2015. That agreement came within the
UNFCCC framework. It was negotiated, adopted by consensus and went
into force on 4th November 2016. As of October 2020, it had 195
signatories and 189 parties. That includes PNG and the European Union.
That convention is:
“... the pinnacle of international law on climate change. It
orchestrates global climate action over the coming decades.
Countries agreed to limit global warming to well below 2oC above
preindustrial times, closer to 1.5oC.”
38. Some of the international treaty or convention obligations have
now been domesticated in several legislations in PNG. The principle one
is the Environment Act 2000 as amended. As I noted in Ginson Saonu v.
Wera Mori & Ors (2021) N9170:
“... these international developments influenced the legislature in
PNG to enact the EA2000. It follows therefore that, as a sensible
and responsible global citizen, PNG through the Minister and the
MD of CEPA, should stay guided by the objects and purpose of the
EA2000 and ensure that their decisions in respect of any EIS
[Environment Impact Statement] or EIA [Environment Impact
Assessment] or responding to any activity that has an impact on the
environment, deliver on the stated objects and purposes of the
EA2000 as outline in its preamble and ss. 4 - 6. This is necessitated
and or dictated by the challenge that are facing our country and
the world today due to climate change and its many adverse
consequences.”
39. On the judiciary’s part, are its published decisions like the ones in
Kula Oil Palm Ltd v. Tieba (2021) N9559, Saonu v. Mori (supra) and
Morua v. China Harbour Engineering Co (PNG) Ltd (2020) N8188.
Additionally, given the pressing need to preserve and maintain what is
remaining of the country’s and hence the world’s rainforests, the National
Court made orders restraining and prohibiting the grant of any further
timber permits for logging, or clearing of any forest areas and other
permits or licenses until the PNGFA properly accounts for the operation
of the current permits, authorities, or licenses meeting the requirements
under the Environment Act 2000 as amended as well as global or
international requirements, based on the relevant and applicable
international conventions and agreements such as the Paris Climate
Agreement. The orders in question were first out of proceedings under
reference OS No. 09 of 2020 – Robin Kami & Ors v. Asset Meriah PNG
limited, Umboi Timber Investment Limited & PNGFA & Ors made on
07th and 08th June 2021, relevantly reads:
“4. Based on the evidence per the affidavit of Robin Kami sworn
on 30th October 2020 and filed on 02nd November 2021, the
Court invokes the provisions of s. 57 (1) of the Constitution
and orders an immediate ban on any further logging under
Umboi Timber Rights Purchase Area number 1327 which
included Umboi Block 1 and all other Timber Rights Purchase
Area (TRPAs) throughout the country until the Papua New
Guinea (PNG) National Forest Authority (PNGFA), the
Conservation and Environment Protection Authority (CEPA),
the Climate Change Development Authority (CCDA), their
respective boards or superiors and the PNG Customs Services
provide the following:
(a) By the PNG National Forest Authority and its Board,
a detailed report of all logging permits or forest
clearance authorities or such other authorities or
instruments issued to allow for logging or clearance of
forest areas to date with a detailed account of the total:
(1) forest areas logged;
(2) number of trees chopped down;
(3) number of trees exported;
(4) number of trees or logs wasted;
(5) impacts of each of the logging operations on the
immediate and surrounding area and communities
and their respective biodiversity.
(6) number of any damage caused to the
environment and what if any particular remedial
actions have been taken, the result of those and if
not, why not, when will the appropriate remedial
action be taken and by whom;
(7) effectiveness of the remedial actions referred to
in 4 (a) (6) above and their current status;
(8) number of alternative programs such as carbon
trade, being developed and implemented that are
environmentally friendly and allows for the
customary landowners and the country to
economically make use of biodiversity within the
forests and the environment generally;
(9) amount of sustainable or other tangible
development and the value of improvements
delivered to the customary landowners in each of
the TRPAs against the benefits package that may
have been agreed to and provided for in the logging
and marketing agreement (LMAs) or such other
agreements and arrangements;
(10) gains in development and other economic
benefits the customary landowners and the country
stands to gain from continued logging and
deforestation as opposed to developing alternative
sustainable and environmentally friendly economic
programs such as carbon trade that could be
developed and pursued and thereby meaningfully
contribute to domestic and global efforts toward
mitigating climate change related risks.
(b) By the Conservation and Environment Protection
Authority (CEPA) a detailed report of all Environmental
Permits issued over each and every TRPA and or FCAs
or such authorities or instruments issued to allow for
logging or forest clearance areas to date with a detailed
account of the total number of:
(1) Environmental impact plans approved, and
permits granted with their conditions for each
logging or deforestation and other activities having
a significant impact on the immediate and
surrounding environment, per TRPAs, all logging,
deforestation areas and other such activities:
(2) Monitoring, evaluations and compliance
reviews carried out by the authority or any other for
each permit issued, all logging and deforestation
activities to date;
(3) Breaches if any, of the conditions of any
environmental permit or deforestation activity in
each case with the steps that have been taken and
the current position on the steps taken;
(4) Logging or deforestation activities that have
impacted against the immediate and surrounding
environment, communities, bio-diversities, and the
steps that have been taken to mitigate or remedy any
adverse impact; and
(5) Prosecutions if any, undertaken and or brought
against any breaches of any environmental plans
and their related permits with any of their
conditions or otherwise any breaches of the
Environment Act 2000 and the Environment
Contaminants Act 1978, their predecessor and any
other relevant and other applicable Acts of
Parliament or any relevant international best
industry practices.
(c) By the Climate Change Development Authority
(CCDA) a detailed report of all climate changing or
adversely impacting activity in the logging and
deforestation activities area and elsewhere carried out
in each and every TRPA and or FCAs areas and other
activities such as mining and other constructions
throughout the country to date with a detailed account
of the total number of:
(1) Recorded and investigated human activity
including logging and deforestation throughout
PNG that is being carried out by corporations,
individuals and public authorities that are having
an adverse impact on the environment and
adversely contributing to climate change;
(2) Environmental plans approved, and permits
granted with their conditions for each logging or
deforestation, mining construction or other
activities having an impact on the immediate and
surrounding environment, per TRPAs and all
logging and deforestation areas, mining,
construction and others;
(3) Any monitoring, evaluations and compliance
reviews carried out by the authority or any other for
each logging and deforestation, mining, and other
construction activities to date:
(4) Breaches if any of the conditions of any
environmental permit or deforestation activities, any
mining, constructions and other activities in each
case with the steps taken and the current position on
the steps taken;
(5) Logging or deforestation, mining, constructions,
and other activities that have impacted against the
immediate and surround environment, communities
and biodiversity and the steps that have been taken
to mitigate or remedy any adverse impact;
(6) Prosecutions if any, undertaken and or brought
against anyone for any breach of their conditions or
otherwise any breaches of the Environment Act
2000 and Environment Contaminants Act 1978,
their predecessors and any other relevant and
applicable Act of Parliament or any relevant
international best industry practise: and
(7) Recorded and investigated climate change
related activities such as rising sea levels and
natural disasters affecting the livelihood and lives
of individuals, group of persons or communities in
PNG and recommended action with the actions
taken and whether the risk presented has been
resolved or are being addressed adequately.
..
7. Any logging company or any person adversely affected by
any of the foregoing orders may formally apply for a
variation or a set aside of these orders or a particular term
of these orders on 3 clear days’ notice and such an
application may be filed at the Registry in Waigani.
...
10. Pursuant to Order 5 Rule 8(1) of the National Court Rules
and Section 57 of the Constitution, each of the Authorities
referred to in term 4 of these orders are ordered to be joined
as parties to this proceeding as the Third, Fourth, Fifth and
Sixth Defendants respectively.
11. The Minister for Environment an Conservation Honourable
Wera Mori, the Minister for Forestry and the Independent
State of Papua New Guinea are also joined as the Seventh,
Eighth and Ninth Defendants respectively.
....
14. Upon the next return of the matter, the Plaintiff and the First
and Second Defendants are required to provide evidence as
to compliance or noncompliance of the foregoing orders for
appropriate enforcement orders to issue against any
defaulting party.”
40. On 10th March 2021, the National Court made orders in OS
No.192 of 2020 - Wisa Susapie & Tumu Timbers v. PNGFA, effectively in
terms similar to those made in OS No. 09 of 2020. Copies of the relevant
orders in OS No. 192 of 2020 which concerned the Kamula Doso Project
Area, are annexed as annexure “B” to the 1st Affidavit of Paul Mulder.
The orders read in relevant parts:
“3. Pursuant to Section 57 (1) of the Constitution the court
orders the Second Defendant [Papua New Guinea Forest
Authority] to provide a detailed report of what if any steps it
has taken to take note of climate change, greenhouse effect,
international treaties and protocols and for the country to
gain from carbon trade as opposed to logging as an
alternative source of income for the landowners and more so
the State.
4. Until there is complete satisfaction of the last preceding
order, the National Forest Authority is forthwith restraint from
issuing any further logging permits.
5. If the Second Defendants oppose a continuity of the last
preceding order, it shall meet the requirements for it to provide
the report and appear in Court to show cause as to why that
order should be lifted.”
41. When the matter next went before the Court on 14th July 2022, the
proceeding was adjourned to 28th October 2022 with the following
orders:
“2. The other related proceeding under reference OS. No. 09 of
2020 – Aset Meriah PNG Ltd, Umboi Timber Investments Ltd
& PNG Forest Authority & Ors v. Robin Kami & Ors [parties
wrongly positioned, the Defendants were the Plaintiffs, and
the Plaintiffs were the Defendants] will also come on that date
together with this matter.
3. All previous orders made in this case in so far as they remain
outstanding are extended for full compliance by the parties by
01 August 2022.
4. All Counsels appearing in this, and the related proceedings
shall carefully study any response, report and documentation
that may have been filed by the original Defendants or those
joined by the Court orders and come prepared to assist the
Court as to the proper compliance or noncompliance of the
previous orders.
5. The parties are required to carefully study the Environment
Act, Pollution Act, or such other legislation that concerns the
environment, the various international agreements or
conventions concerning pollution and the environment and
come prepared to inform the Court whether the relevant
authorities in Papua New Guinea are taking all of the correct
steps or some of the steps only and what improvements are
required or none at all and what steps must be taken to ensure
compliance of the Environment Act and achieve the stated
objective of that legislation.”
42. All these orders were made prior to the date of the Minister’s
Decision. The orders were in force when that Decision was made. Those
orders are still in force as confirmed by the Orders made by this Court in
this proceeding on 13th July 2023, which relevantly reads:
“1. The Court reaffirms its earlier orders in a separate
proceeding under OS 9 of 2020 referenced in this proceeding
that the Papua New Guinea Forest Authority issues no more
logging Permits or Forest Clearance Authorities (FCAs) until
orders for fully accounting for all logging and operations
carried out under all prior logging permits, inspection of,
compliance of the various conditions and the satisfactory report
that the operations have been within the permitted limits and
there has been no breach.
2 The restrain on further logging shall continue to run until
the PNG Forest Authority, Department of Environment and
Conservation, Climate Change Development Authority,
Conservation and Environment Protection Authority ... and the
relevant authorities are able to satisfy this Court and the
Nation that further logging is permissible and that carbon
offset projects are not warranted in the country.
3 The Department of Environment and Conservation and the
two authorities referred to in term 2 of these orders shall also
table before this Court on the next return date, the current
position on carbon offset trading, rules and regulations
surrounding that and the interplay between the PNG Forest
Authority and themselves as to conservation, as to
management, as to permits and discharge of PNG's domestic
and international obligations on the various conventions,
agreements and or protocols.
4 Upon the provision of the various reports referred to in the
preceding orders, the Court will order all parties to meet,
discuss the issues presented and come up with resolutions
including what steps the Independent State of Papua New
Guinea should be taking and the relevant authorities should be
doing on the issues of climate change, environmental protection
and preservation of whatever is remaining in the country’s
rainforests.”
Consideration – Principles governing judicial review
43. I now turn to a consideration and determination of the issues
presented in the case present case. But before dealing specifically with
each of the issues, I first remind myself of the principles governing
judicial review. The starting foundation for judicial review is s.155(3) and
(4) of the Constitution and the provisions of Order 16 of the National
Court Rules 1984 as amended (NCR). It is now settled law that, judicial
review proceedings are exclusively governed by Order 16 of the NCR:
See Church of Jesus Christ of Latter-Day Saints Inc v Kimas (2022)
SC2280, per Kandakasi DCJ, Polume-Kiele and Dowa JJ. It is also
settled law that, judicial review is discretionary and is available to correct
errors in the decision-making process: See Rose Kekedo v. Burns Philp
(PNG) Ltd [1988-89] PNGLR 122. Further, it is trite law as represented
by the decision in Dusava v. Justice Doherty [1999] PNGLR 419, per
Sakora J (as he then was) that the underlying principles in judicial review
proceedings are whether the decision maker has:
(1) acted in excess of jurisdiction.
(2) committed an error of law on the face of the record.
(3) failed to comply with principles of natural justice.
(4) acted unreasonably or the Wednesbury Principle – where
power is exercised in an unreasonable manner.
Consideration and determination of the Issues
(1) (i) Ultra Vires – First Issue
44. Now turning to the specific issues in the present case, I will deal
firstly with the issue of ultra vires. In respect of that, firstly, Mayur
through its learned Counsel Mr. Shepherd, takes issue with Mosoro’s
claim that the Minister issued a direction for the cancellation of the
Permits. But the evidence does not disclose the direction. Instead, it
discloses an instrument cancelling the Permits. Secondly, Mayur submits
the Minister’s decision dated 27th May 2022 is in “Form 182” issued
pursuant to s. 97 of the Act and the Forestry Regulation, s. 184. But s. 97
relates to the cancellation of licences issued under s. 91 of the Act as does
Regulation s.184. Additionally, the prescribed “Form 182” is titled
“Cancellation of Licence”. Thirdly, Mayur submits the documents which
were issued to it by the then Minister for Forests on 7th January 2022
were titled “Timber Permits” and were issued pursuant to s. 73 of the Act
and Regulation s.118. The prescribed form used was “Form 115”. That
being the case, Mayur submits, permits issued under s. 73 of the Act can
only be cancelled pursuant to the provisions of s. 86 of the Act and not s.
97 of the Act. Finally, Mayur submits, the Minister had no jurisdiction to
purportedly cancel the Permits. He therefore acted ultra vires his powers.
Proceeding on that basis, Mayur, submits the first ground of ultra vires is
made out. Hence it must be upheld.
45. The Minister has not instructed any lawyer to represent him and
put his side of the story to the allegations and or the claims against him.
Hence, there is no response from the Minister. The 2nd and 3rd
Defendants (the Defendants), through their learned Counsel, Mr Unua, in
effectly agree with Mayur’s submission that s.86 of the Act deals with the
cancellation of timber permits that are issued under section 73 of the Act.
They then submit that timber permits are defined under s. 2 of the Act as
being a timber permit issued under sections 73 and 75 of the Act.
46. Further, the NFB and the PNGFA argue that there is no provision
under the Forestry Act for a grant of forest carbon concession trading
permits, or the Permits in the present case. Their grants were under the
precarious hand of the then Minister and a mistaken application of the
provisions of the Act. The correct authority to issue carbon concession
permits in terms of jurisdiction would be the CCDA which is governed by
the CC(M)(Amendment) Act.
47. Additionally, the NFB and PNGFA refer to the decisions in
Ombudsman Commission v. Yama (2004) SC747 (Injia DCJ, Sakora &
Sawong JJ), Tapale v. Secretary, Department of Southern Highlands &
Southern Highlands Provincial Government [1995] PNGLR 22, per
Woods J and Port Services PNG Pty Ltd v. Gioctau Tanabi [1995]
PNGLR 391 (per Sheehan J), to reiterate the points that:
(1) judicial review is confined to reviewing the process by
which a decision is reached and not the decision made.
(2) as a discretionary matter, judicial review is not about
interfering and or monitoring or overseeing the actions of
statutory authorities or departmental heads directly
empowered and responsible for their own sphere other than
in exceptional circumstances. 48. Further, they submit that Mayur was not a FIP under the provisions of the Forestry Act from the start to even be considered and given a Permit. They then submit, Mayur, a multimillion-dollar foreign company failed to comply with the relevant laws in relation to foreign entities operating business in the country and have now also transgressed against the laws in relation to carbon permits. Finally, they submit, the then Minister pressured them into entertaining Mayur’s application and have it issued with the Permits. Furthermore, they submit that Mayur had the financial resources to properly conduct prior due diligence to ensure they entered into agreements or projects that are sanctioned by law, which Mayur failed to do. (1) (ii) Consideration and Decision on First Issue – Ultra vires 49. The Defendants submissions centred around ss. 73, 75 and 86 of the Forestry Act, in fact support Mayur’s arguments. The rest of their submissions with respect, fail to respond to the points being made by Mayur. In short, central to Mayur’s arguments is that the Minister acted ultra vires the prescribed process and procedure by s. 86, when the Minister instead, employed s. 97 to cancel the Permits which were issued under s. 73 of the Act and not under s. 91 to render s. 97 relevant and applicable. Obviously, the Minister used the wrong provision to cancel the Permits. In any case, neither under ss. 86 (or 97) nor under any other provision of the Act, the Minister had any power to act unilaterally and independently of the NFB and the managing director of the PNGFA. 50. On the issue of Mayur not being FIP, the Permits not provided for by the Act and the former Minister exerting pressure, I find and accept Mayur’s submissions that there are several problems attending these aspects. Firstly, the Defendants base their submissions on a refusal of an application by Mayur for FIP. That rejection was premised on “the single shareholder listed was not registered in PNG and cannot act as a single shareholder.” That was despite the change in the Companies Act. The Companies Act Chp. 146 was repealed and replaced by the Companies Act 1997 (CA1997). Section 11 of the current 1997 Act provides for a company to have a minimum of one shareholder and a minimum of one director to be registered in PNG. No corresponding change was made to the Forestry Act when the CA1997 was passed. Additionally, the evidence reveals Mayur is duly registered as a company under the CA1997 and is also registered as a foreign owned company in PNG for the purposes of conducting businesses lawfully in PNG. The reason given by Mosoro is therefore flawed.
51. Secondly, the PNGFA’s undertakings in the HOA included an
undertaking to procure and provide any authorisation necessary for
Mayur to develop the Carbon Offset Project and a similar undertaking
was also given in the OTPD including registration as FIP. In respect of
that, Mayur received a request by the then Chairman and Minister prior to
the signing of the HOA on 23rd September 2021, to apply for registration
as a FIP. Mayur immediately paid for and applied to register as a FIP.
Given the law as noted above, there was no impediment for a grant of the
application. Hence, the reason given for a refusal of the application was
flawed.
52. Thirdly, Mosoro’s letter dated 6th January 2022, Annexure ‘G” to
the Affidavit of Mulder, advised the then Minister that, “all processes
under the Act have been fully completed and the grant of the first ever
timber permits relating to carbon trading over the Kamula Doso FMA
Blocks are all in order now for your grant as attached”. So, what has
happened to cause the change resulting in the cancellation? Mosoro or
the Minister of any of the Defendants provide no explanation for this.
53. Fourthly, the reasons now given for the cancellation, namely, the
purported direction, Mayur not being registered as a FIP, the Act not
providing for the Permits and the former Minister exerting pressure were
not given in the decision cancelling the Permits. In other words, they
were not provided at the time of making the Decision until after the
Minister purportedly cancelled the permits pursuant to s. 97 of the Act.
The duty to provide reasons for any decision at the time of a decision
maker making his decision or its pronouncement, is well established in
our jurisdiction. The decision of their Honours, Salika DCJ (as he then
was) and Batari J in their joint judgment in Amet v. Yama (2010) SC1064
state that succinctly in these terms at [12]:
“A pronouncement by the court falling short of given reasons will
inevitably lead to a conclusion that the court or a decision making
authority has no good reason for the decision made.”
54. The obligation to give reasons for a decision by the Courts or an
administrative decision maker is inherent and must be discharged at the
time of pronouncing the decision, even in cases where the relevant statute
is silent on it or fails to provide for it. I made that point clear in my
recent decision in the matter of Michael Wapi v. Dr. Eric Kwa & Ors
(2022) N10362, in the following terms at [33]:
“As can be seen from these provisions, there is no provision
expressly requiring the Land Board and or the Head of State to
give reasons. It is however trite law that every public decision
maker is obliged to give reasons for their decision. The decision in
Electoral Commission v Bernard Kaku (2019) SC1866 is one of the
latest decisions on point. There, in the context of a review of a
decision by the National Court in an election petition and sitting as
a single judge of the Supreme Court, I reviewed the decisions on
point. I then said:
‘Obviously, as a decision maker, the learned trial Judge was
obliged to give his reasons for either deciding against the
Commission’s Objection or his decision not to make a decision
on that Objection. It is settled law that, every decision maker
is obliged to give his or her reasons for their decisions.’”
55. Applying the law to the present case on the belated inclusion of
purported reasons of Mayur not being a FIP, the Minister issuing a
direction and the permits being illegal are, afterthoughts. They did not
constitute either partially or wholly the reasons for the Decision to cancel
the Permits. Given these, the belated inclusions cannot be accepted as
they are afterthoughts.
56. Fifthly, the decision leading to, and the eventual grant of the
Permits was deliberate and well considered given all the developments
globally on the Climate Change Emergency and Environment front. That
includes the need for urgent actions to be taken to prevent further
deforestation, preserve what we have and, whilst doing that, also
economically gain from taking such steps. The evidence before the Court
reveals the following:
(1) The EA2000 and several amendments to that Act with the
latest one being the Environment (Amendment) Act 2012
were passed to domesticate international conventions,
treaties, protocols, or agreements and have a comprehensive
environment legislation that is more current and more
modern. For more discussions on the significance of the
EA2000 as amended, see: Saonu v. Mori & Ors (supra).
(2) Successive governments and Ministers have stressed the
need to preserve the nation’s forest resources, introduce
carbon offset projects and comply with the scheme known as
reducing emissions from deforestation and degradation or in
short, REDD+ Scheme. The idea behind this scheme is for
forests to be saved from clearing and credits are issued for
the carbon stored in the forests left standing. Each credit is
equal to one tonne of carbon dioxide or equivalent emissions.
(3) In fact, PNGFA announced in the Draft 2012 National Forest
Plan that four REDD+ Scheme pilot programs were
underway and one, the April Salumei in East Sepik was
launched despite there being no specific expressed legislative
procedures.
(4) The CC(M)A was passed with specific and detailed
regulations yet to come. Draft Regulations are on foot
awaiting promulgation.
(5) A deliberate and considered decision was made by the then
Minister Schnaubelt under s. 7 (2) of the Act who issued
directions for the development of an appropriate policy
document, to actualize carbon offsetting projects with a
specific legislative framework for it.
(6) The Defendants accepted and agreed with the process
employed by former occupiers of the relevant NFB positions
in the PNGFA as did the Office of Climate Change, the
relevant Provincial Governor, and the landowners.
(7) The Minister for Climate Change has endorsed and approved
the Project and has indicated how the Project should proceed.
The Minister also specifically supports Mayur’s “carbon
offset” proposals.
57. There is no evidence of the kinds of pressure exerted by Minister
Schnaubelt as alleged by the Defendants or at all. I therefore reject the
claim of pressure being exerted by Minister Schnaubelt. There is also no
evidence of Minister Mirisim, who made the Decision without the
managing director of the PNGFA and the NFB playing their respective
parts, taking the foregoing developments on the Climate Change
Emergency and the Environment globally and within the country
seriously into account before getting to the Decision to cancel the
Permits.
58. Sixthly, the detailed process employed by the former Minister
Schnaubelt and the holders and or occupiers of the relevant offices of the
Defendants needed to be followed. If, however there was a lack of clarity
for the Minister and the rest of the Defendants, as to the correct process to
cancel a timber permit, howsoever it was granted, the answer lied and lies
in the law and process provided for by the Act itself which was employed
to grant the Permits at the first place and was used to cancel the Permits.
59. The relevant provisions are ss. 2, 73, 75, 86, 91 – 97 and the whole
of the Act which provides for the different kinds of licenses or permits
that can be granted. These includes Burning Permits under s. 53, Timber
Permits under s. 73, Timber Authorities under s. 87, Forest Clearing
Authorities under s. 90D (22) and Licenses under s. 91. Each have their
own prescribed processes for applications, grant of the relevant permits,
authorities, and or licenses. Then specifically for timber permits, forest
clearing authorities and licenses, there are prescribed suspension and or
cancellations processes. This is especially clear for licenses and timber
permits.
60. Section 86 is the prescribed process for cancellation of timber
permits issued under s. 73 whilst s. 97 is the prescribe process for the
cancellation of licenses issued under s. 91. They fall under two separate
subdivisions. Subdivision C comprising of ss. 73 – 86 covers timber
permits. On the other hand, Subdivision E comprising of ss. 91 – 97
provides for licenses.
61. Sections 86 and 97 are in identical terms. Section 86 reads:
86. Conviction of the Holder of a Timber Permit, etc.
(1) Where the holder of a timber permit (or where the holder is a
corporate person, any of the principals of the holder)–
(a) is or are convicted of an offence–
(i) against this Act; or
(ii) concerning forestry matters, against any other law; or
(b) has or have failed to comply with any of the conditions of the
timber permit,
the Minister may cancel the timber permit.
(2) For the purposes of Subsection (1), “principals” includes
director, manager, secretary or other similar officer or any person
purporting to act in such a capacity.
(3) Where it is proposed to cancel a timber permit under
Subsection (1), the Managing Director shall serve a notice on the
holder–
(a) advising him of the intention to cancel the timber permit and
of the reasons for the intended cancellation; and
(b) requiring him,
within 14 days from the date of service of the notice, to make
representations as to why the timber permit should not be
cancelled.
(4) On the request of the holder within 14 days from the date of
service of the notice under Subsection (3), the Managing Director
shall allow the holder an opportunity to be heard.
(5) Where the holder does not make, within the 14 day period,
representations under Subsection (3)(b) or a request to be heard
under Subsection (4), the Minister shall cancel the timber permit.
(6) The Minister shall consider any representations made under
Subsection (3)(b), and, where appropriate, shall cancel the timber
permit.
(7) Where there has been a hearing under Subsection (4)–
(a) the Managing Director shall make and forward to the Board a
written report on the hearing; and
(b) the Board shall consider the report and forward it, together
with its recommendations thereon, to the Minister; and
(c) the Minister shall consider the report and the
recommendations from the Board and, where appropriate, shall
cancel the permit.”
(Underlining supplied)
62. Since s. 97 is in identical terms it is not necessary to have that
reproduced. The only difference to note is the word “licence”.
63. The definition of the phrased “timber permit” in s. 2 of the Act adds
further clarity by it being specific and restricting itself to a timber permit
issued under s. 73 and 75 or under the earlier repealed Act. The relevant
definition reads:
“‘timber permit’ means a timber permit granted under Section 73
or 75 and includes–
(a) a permit or licence granted under the Forestry Act (Chapter
216) (repealed) continued by virtue of Section 137; and
(b) an agreement deemed to be a timber permit by virtue of
Section 137(1A); and
(c) an extension to an existing approved timber permit
operation which is consolidated under an existing approved
timber permit under Section 64...”
(Underlining supplied)
64. Seventhly, I find no provision is made under s. 86 or 97 for the
Minister to issue any directions. The Minister has power to issue
directions, under s. 47 (2) (c) (i), which reads in relevant parts:
“47 National Forest Plan.
(1) The Authority shall cause to be drawn up a National
Forest Plan to provide a detailed statement of how the
National and Provincial Governments intend to
manage and utilize country’s forest resources.
(2) The National Forest Plan shall–
(a) be consistent with the national forest policy and
relevant Government policies; and
(b) be based on a certified National Forest
Inventory which shall include particulars as
prescribed; and
(c) consist of–
(i) National Forestry Development Guidelines
prepared by the Minister in consultation with
the Board and endorsed by the National
Executive Council...”
(Underlining supplied)
65. To discharge that power, duty, or obligation, the Minister could
possibly issue a direction for purposes of getting the NFB to assist in the
development of a National Forestry Development Guidelines.
66. Another provision under which the Minister could issue directions
is s. 7 (2) of the Act. The provision reads as follows:
“Subject to this Act and any other law, the Minister may give to the
Authority, through the Board, any direction in regard to the carrying
out of the functions of the Authority as he considers necessary for the
purpose of achieving the objectives of the Authority.”
(Underlining supplied)
67. In my view, this is not an open-ended authorisation. Instead, it is
restricted to achieving “the objectives of the Authority”. The objectives
are clearly spelt out in s. 6 of the Forestry Act in the following terms:
“In carrying out its functions under this Act, the Authority shall
pursue the following objectives:
(a) the management, development and protection of the Nation’s
forest resources and environment in such a way as to
conserve and renew them as an asset for succeeding
generations;
(b) the maximization of Papua New Guinea participation in the
wise use and development of the forest resources as a
renewable asset;
(c) the utilization of the Nation’s forest resources to achieve
economic growth, employment creation and industrial and
increased “downstream” processing of the forest resources;
(d) the encouragement of scientific study and research into
forest resources so as to contribute towards a sound
ecological balance, consistent with the National development
objectives;
(e) the increased acquisition and dissemination of skills,
knowledge and information in forestry through education
and training;
(f) the pursuit of effective strategies, including improved
administrative and legal machinery, for managing forest
resources and the management of National, provincial and
local interests.
(Underlining supplied)
68. These objectives, in my view are listed in the order of priority.
They are made the objectives of the Forestry Act going by the preamble
to the Act. This is very important for the times we are living in and what
humanity needs to do urgently. The following statement of the UN in its
website succinctly describes the times we are in:
“Climate Change is the defining issue of our time and we are at a
defining moment. From shifting weather patterns that threaten food
production, to rising sea levels that increase the risk of
catastrophic flooding, the impacts of climate change are global in
scope and unprecedented in scale. Without drastic action today,
adapting to these impacts in the future will be more difficult and
costly.”
(Underlining supplied)
69. Given the above scenario, the priority objectives must be the first
stated objective in s. 6 (a) of the Forestry Act. As could easily be seen,
the first objective is aimed at the wise use, “management, development,
and protection of the Nation’s forest resources and environment as a
renewable asset in ways that will conserve and renew them as an asset for
present and succeeding generations.” In my respectful view, a fulfillment
of the first objective forms the foundation for the other objectives to be
meaningful and achievable. It should necessarily follow therefore that,
any direction the Minister gives under s. 7 (2) of the Act, must
accommodate the first objective first and then the other objectives. Such
directions must also be consistent with any relevant and prevailing
government policies, or if there is a lack of any such policy, the direction
must be for the purposes of developing an appropriate policy which are in
turn consistent with the priority objectives of the Act and PNG’s
international obligations.
70. Finally, I turn specifically to the Defendants’ argument that there
are no specific provisions of the Forestry Act that provided for Permits or
provisions that deal with carbon offset projects. Following on from the
fourth point above, a close look at the preamble to the Act and the
objectives and functions of the PNGFA under s. 6 and 7 are in my view,
wide enough to cover an issuance of the kind of permits that were issued
in this case. This is possible under s. 6 (a) of the objectives and s. 7 (1)
(e) (j) (k) and (2) of the Act. I have already quoted the provisions of s. 6
(a). Section 7 (1) (e) (j) and (k) read:
Section 7 (1) (e) (j) (k) and (2)
“(e) to select operators and negotiate conditions on which timber
permits, timber authorities, large scale agricultural or other land
use and road forest clearing authorities and licences may be
granted in accordance with the provisions of this Act; and
(j) to act as agent for the State, as required, in relation to any
international agreement relating to forestry matters; and
(k) to carry out such other functions as are necessary to achieve its
objectives or as are given to it under this Act or any other law.
(2) Subject to this Act and any other law, the Minister may give to
the Authority, through the Board, any direction in regard to the
carrying out of the functions of the Authority as he considers
necessary for the purpose of achieving the objectives of the
Authority.
(Underlining supplied)
71. It is settled law, that all statutory provisions must be given their
fair, large and liberal interpretation to give effect to the purpose and or
object of the legislation and the provision under consideration. In my
decision in the 5-member Supreme Court decision in William Hagahuno
v. Johnson Tuke (2020) SC2018, I referred to almost all the previous
Supreme Court decisions on point and concluded at [57] in these terms:
“Proceeding on that basis, it is settled law that, the fair large
liberal and purposive approach should be employed for the
interpretation and application of a Constitutional law and other
statutory provisions as opposed to the narrow and restrictive
approach. The Supreme Court has been repeatedly making this
point clear and have also applied the principle in many cases.”
72. Going by that settled interpretation principle, I find the objectives
and functions of the PNGFA and the whole Act, is not restricted only to
logging or cutting of trees for commercial purposes. Instead, it most
importantly includes as a priority the “protection of the Nation’s Forest
resources and environment in such a way as to conserve and renew them
as an asset for succeeding generations.” This is best achieved by a carbon
offset project more than timber permits that allow for logging. Consistent
with the broad provisions of the objectives of the Act, s. 73 under which
the permits were issued does not restrict the grant of timber permits only
for the purposes of logging or cutting of trees. In other words, s. 73 under
which the Permits were granted, and other provisions of the Act, do not in
any way expressly exclude the grant of permits for carbon offset projects.
To do so would be inconsistent with the first expressly stated objective or
purpose of the Act.
73. Having regard to the relevant expressed provisions of the Act, the
foregoing discussions, and the relevant evidence on point or lack thereof,
I find the belated claims of Mayur not being a FIP and the Permits
granted to it are illegal cannot be sustained. If, however, they could be
sustained despite the foregoing findings and discussions, that did not
authorise or grant any power to the Minister to act unilaterally and
independently of the managing director of the PNGFA and the NFB. He
was obliged to act strictly in accordance with the provisions of s. 86 of
the Act. Consequently, I find the Minister clearly acted ultra vires his
powers in employing the wrong provision s. 97 instead of s. 86 and or s. 7
(2) of the Act to issue his alleged direction and cancel the Permits.
Accordingly, I uphold the first ground for review.
(2) (i) Non-Compliance – Second Issue
74. This takes us to the next issue, which is one of non-compliance of
the relevant provisions of the applicable provisions of the Act when the
Minister decided to cancel the Permits. This ground follows from the
first ground. Mayur’s argument is simply that, the Minister failed to
follow the process and procedure provided for either under the correct
provision, s. 86 or even under s. 97, the provision wrongly used by the
Minister before getting to the ultimate decision to cancel the Permits.
75. I have already reproduced the provisions of s. 86 above. In my
humble view, these provisions by subsections (1), (3) to (7) provide for a
total of 8 steps to be followed for a proper consideration and cancellation
of a timber permit. I set out the steps in the following:
1. The holder of a timber permit is either:
(1) convicted of an offence:
(a) against the Forestry Act, or
(b) concerning forestry matters; or
(c) or against any other law; or
(2) has or have failed to comply with any of the
conditions of the timber permit.
2. Upon any of the triggers under step 1 occurring, the second
step is for the Managing Director of PNGFA to serve a notice
of an intention to cancel on the holder of the permit. The
notice must:
(a) advise the holder of the intention to cancel the
holder’s timber permit;
(b) state the reasons for the intended cancellation; and
(c) require the holder of the permit to make within 14
days from the date of service of the notice,
representations as to why the permit should not be
cancelled.
3. Within 14 days from the date of the service of the notice in
accordance with step 2, the holder of the permit may make a
representation as to why the cancellation should not take
place or request an opportunity to be heard.
4. If the holder does not make a request or a representation
under step 3 above, the Minister can proceed to cancel the
permit as indicated in the notice.
5. If the holder makes any representation under step 3, the
Minister must consider it and where appropriate, cancel the
permit and that would be the end of the process. If, however,
the permit holder requests an opportunity to be heard under
step 3, such an opportunity must be accorded, and a hearing
must take place.
6. Where a hearing takes place, the Managing Director of
PNGFA must make and forward to the Board a written report
on the hearing.
7. Upon receipt of the report under step 6, the Board must then
consider the report under step 6 and forward it, together with
its recommendations thereon, to the Minister.
8. Upon receipt of the report and recommendations under step
7, the Minister must consider the report and the
recommendations of the Board and, where appropriate,
cancel the permit.
76. In the present case, there is no evidence of a due compliance or a
meeting of any or all these steps before the decision to cancel was arrived
at. The evidence before the Court shows Mayur was not aware of the
purported cancellation of its Permits until 20th July 2022, when the
Defendants published the notice of cancellation in the local newspapers.
77. The Defendants submit that, the only relevant consideration that
the Defendants considered were the illegality of the Permits and that
Mayur being a non FIP under the Act. They then repeat their earlier
arguments under the first issue on these points.
(2) (ii) Consideration and decision on Second issue – Noncompliance
78. If Mayur was not a FIP and the Permits are not provided for in the
Act, did that entitle the Minister to cancel the Permits in the way he did?
I repeat what I said about these arguments of the Defendants under the
first issue. Additionally, this brings to mind, the adage or proverb, namely
“two wrongs don’t make a right”, meaning, if someone has done
something wrong against another, it is not right to do something wrong in
return or take wrong steps or processes to correct the earlier wrong.
Instead, the correct and proper steps, or the right thing to do must be
taken or done to correctly correct any earlier error.
79. In the present case, rightly or wrongly, the Permits were granted by
the same Defendants except for the change in the persons occupying the
respective offices at different times. The grant of the Permits was under s.
73 of the Act. Section 86 being the correct and directly applicable
provision of the Act, expressly sets out the process for a cancellation of
the Permits. I set out the process at [73] above. That is the process that
should have been followed to correct the alleged wrongful grant of the
Permits. There is no evidence of following that prescribed process or
anything close to it to arrive at the Decision.
80. That failure to follow the process deprived the Minister of duly
considering: (1) the serious Climate Change related challenges we are
facing globally; (2) PNG’s international and domestic obligations to her people and the global citizens given the risks; (3) the relevant government policy related discussions; (4) and responses including: (i) the enactment of the EA2000 as amended, the CC(M)A; (ii) and the decision to take real and meaningful steps under the REDD+ Scheme. In these circumstances, I find the Minister failed to comply with the requirements of s. 86 or even under s. 97 of the Forestry Act. In this respect, I find, he failed to comply with each and every one of the prescribed steps, he acted unilaterally and independently of the NFB and the Managing Director of PNGFA. To this I add to the reasons I gave for my finding that the Minister acted ultra vires his powers. In these circumstances, I find the second ground has been made out. (3) (i) Denial of Natural Justice – Fourth Issue 81. This conveniently takes us to the fourth issue which concerns the principles of natural justice. Mayur submits it had a right to be heard in accordance with s. 59 of the Constitution and s. 86 of the Act, being the correct provision or even s. 97 being the wrong provision used by the Minister, before the decision to cancel the Permits could be arrived at. Consequently, Mayur argues it was denied natural justice or it’s right to be heard before its Permits were cancelled. That was in addition to not being served with any notice to show cause under the hand of the Managing Director of the PNGFA as required by both ss. 86 (correct provision) or s. 97 (wrong provision used) and the NFB deliberating on the issue before the Minister could decide to cancel the Permits. 82. In response, the Defendants acknowledge the existence and the requirements of s. 59 of the Constitution as providing for the principles of natural justice with the minimum requirement that Mayur had to be accorded the right to a representation or be heard before the cancellation decision was arrived at. Despite that acknowledgement, they revert to their submissions under the first issue in terms of Mayur not being a FIP and the Permits granted to it being illegal. They go on to argue, the illegality deprived Mayur of any standing and right to any notice and right to be accorded the right to be heard and be heard before the decision to cancel the Permits could be arrived at. In other words, the Defendants are effectively arguing that, the illegality of the Permits entitled the Minister to arrive at his Decision unilaterally and summarily in the manner he did. 83. Further, they refer to two decisions in support of their submissions. The first is the decision in Port Services PNG Pty Ltd v. Gioctau Tanabi (supra) as supporting their proposition that even if the Court finds that
there is sufficient evidence for breach of the principles of natural justice
or excess of powers, the matter must still be referred to the administrative
authority for that authority to make a lawful decision again. The second is
my decision in the Supreme Court in Electoral Commission v. Kaku
(2019) SC1866 at [21] where I had referred to my earlier decision in the
matter of Lee & Song Timber (PNG) Co. Ltd v. Burua [2003] PNGLR 21
and discussed the principle of natural justice in the following terms:
“One of the minimum requirements of the principles of natural
justice enshrined in our Constitution under s.59 (2) is the duty to
act fairly, and in principle, to be seen to be acting fairly. This is in
effect a codification of an old established principle represented by
cases like that of R v. Sussex Justice; Ex Parte McCarthy [1942] 1
K.B. 256.
The need to provide good reasons for any decision-maker for a
decision he or she makes is an important part of the principles of
natural justice. For a failure to give reasons has the potential to
form the foundation for a suggestion or suspicion that the decision
is without good reason. Lord Denning in General Electric Co. Ltd
v. Price Commission [1975] 1 C.R. 1 at 12 made that clear in these
terms:
‘If it (the decision maker) gives no reasons in a case when it
may reasonably be expected to do so, the Courts may infer
that it had no good reason for reaching its conclusion and act
accordingly.’”
84. Finally, they submit that, there is no breach of the principles of
natural justice because, Mayur was given reasons for the cancellation
Decision which are, clearly legal grounds and not mere grounds that can
be bypassed.
(3) (ii) Consideration & Decision on Denial of Natural Justice –
Fourth Issue
85. The starting point is s. 59 of the Constitution which provides for
the principles of natural justice in the following terms:
“59. Principles of natural justice.
(1) Subject to this Constitution and to any statute, the principles
of natural justice are the rules of the underlying law known by that
name developed for control of judicial and administrative
proceedings.
(2) The minimum requirement of natural justice is the duty to act
fairly and, in principle, to be seen to act fairly.”
(Underlining supplied)
86. This provision has been the subject of repeated considerations by
both the Supreme and National Courts. The Supreme Court first
considered the provision and the principles of natural justice in the case
of Premdas v. The State [1979] PNGLR 329, per Prentice CJ, Raine DCJ,
Saldanha, Wilson, and Andrew JJ. A Supreme Court decision that
elaborates on the principles of natural justice is the decision of the
Supreme Court in Nilkare v. Ombudsman Commission of Papua New
Guinea [1999] PNGLR 333, per Amet CJ, Kapi DCJ, Los & Injia JJ.
There, Amet CJ held:
“The requirements of the right to be heard could be deemed
complied with if the following procedures were adopted:
1. Notice is given of the nature and substance of the allegations
made against the leader.
2. Reasonable opportunity is given to the leader to respond,
either in writing or in person before the Commission, if the
leader so elects.
3. Particulars and clarification of the allegations ought to be
given if the leader requests the same in order that his right to
be heard in respect of the allegations are to be considered
adequate.
4. Any relevant documents are to be furnished to the leader if
requested, to enable the leader to fully respond to the
allegations.
(Underlining supplied)
87. Kapi DCJ, on his part endorsed what the trial judge concluded in
the same case in the following terms:
“On this issue, the trial judge concluded:
‘There is a misapprehension here. Notice of the right to be
heard and that hearing are quite different. The right in the
Leader to be heard is a Constitutional statutory and natural
justice requirement. The obligation on the Commission in
respect of that right, both under s 20(3) and in natural justice,
is to notify a leader of the fact that allegations have been
made against him; setting out the substance of the charges;
such that he is able to understand their nature and to inform
him of his right to be heard in respect of each of them; and to
accord him that right if he chooses to exercise it.’
That in my view is a correct statement of the law. The right to notify
a leader and the right to be heard are set out under OLDRL, s 20
(2) and (3) respectively. My only comment is that it is not necessary
to make reference to the principles of natural justice formulated as
part of the underlying law. The provisions of OLDRL are sufficient
in respect of natural justice matters.”
(Underlining supplied)
88. Subsequent decisions of the Supreme Court have adopted and
applied the principles enunciated in Nilkare v. Ombudsman Commission
(supra) case. One such decision is the one in Pruaitch v. Manek (2019)
SC1884, per Kandakasi DCJ, Shepherd & Berrigan JJ. There at [43] the
Court held:
“The obligation on the Commission in respect of the right to be heard
is well settled. The Commission is to notify a leader of the fact that
allegations have been made against him; setting out the substance of
the charges; such that he is able to understand their nature and to
inform him of his right to be heard in respect of each of them; and to
accord him that right if he chooses to exercise it: per Kapi DCJ in
Nilkare v. Ombudsman Commission of Papua New Guinea [1999]
PNGLR 333...”
(Underlining supplied)
89. Although the decisions in Nilkare v. Ombudsman Commission
(supra) and Pruaitch v. Ombudsman Commission (supra), concerned s. 20
of the Organic Law on Duties and Responsibilities of Leaders, the ratio
decidendi in those cases, equally apply in the context of other statutory
provisions such as ss. 86 and 97 of the Forestry Act. As did Kapi DCJ in
Nilkare v. Ombudsman Commission, I find the principles of natural justice
are already provided for in this case in s. 86 (correct one) or even s. 97
(wrongly used by the Minister) of the Act. The obligation to notify is in
ss. 86 (3) and or 97 (3). Subsections (4) of both ss.86 and 97 provide for
the right to make representations or give a permit holder the right to be
heard and hear the holder at a hearing. After having given such
opportunity to be heard and having heard a permit holder, subsection (7)
of ss.86 and or 97 provides for the decision to cancel a permit to be
arrived at. In both cases, there is no authorisation to proceed, unilaterally
to the exclusion of the NFB and the managing director of PNGFA and
without according a permit holder these rights. The only instance in
which the Minister could proceed summarily is where, the permit holder
fails to respond to a notice and or make any representation or request a
hearing.
90. There is no evidence from the Defendants of a due compliance of
the requirement to give notice and accord Mayur the right to be heard
before proceeding to cancel its Permits. There is also evidence, and they
make no submission on the part the NFB and the managing director
played in the cancellation. Similarly, they are making no submissions on
the meeting and the existence of first triggering step under subsection (1)
of both ss. 86 and 97 of the Act. The Defendants, including the Minister,
are not claiming they have or have attempted to comply with these most
basic yet fundamental requirements. Their submissions, however, seek to
justify their failure to observe these important and critical procedural
requirements by their claims of Mayur not being a FIP and the Permits
being illegal. There is therefore no dispute that the Defendants failed to
observe and meet the next important steps after the first triggering steps
of giving notice, namely, according Mayur the right to be heard, hearing it
out and then coming to a decision. Instead of acknowledging that failure
on the part of his clients, and advising them appropriately to resolve this
matter, even under directions of the Court, Counsel for the Defendants,
has taken a position in total disregard of the relevant provisions of the
Forestry Act that were referred to above, and carried on as if those
provisions and generally the principles of natural justice as enshrined in s.
59 of the Constitution do not exist in our legal system.
91. Counsel’s conduct in this respect is a clear breach in my view of
his duties to the Court and to his client. His conduct in my view is a
breach of the provisions of Rules 3 and 8 of the lawyers’ Professional
Conduct Rules. These provisions relevantly read:
“3. Duty of Every Lawyer
It is the duty of a lawyer -
(a) not to engage in conduct (whether in pursuit of his
profession or otherwise) which–
....
(iii) is unprofessional; or
(iv) is prejudicial to the administration of justice; or
(v) may otherwise bring the legal profession into disrepute;
and
(b) to observe the ethics and etiquette of the legal profession;
and
(c) to be competent in all his professional activities”
and
“8. DILIGENCE.
(1) A lawyer shall treat a client fairly and in good faith, giving
due regard to -
(a) the dependence by the client upon him and his special
training and experience; and
(b) the high degree of trust which the client is entitled to
place in him.
(2) A lawyer shall always be frank and open with his client and
with all others so far as his client’s interest may permit and
shall at all times give his client a candid opinion on any
professional matter in which he represents that client.
(3) A lawyer shall take such legal action consistent with his
retainer as is necessary and reasonably available to protect
and advance his client’s interests.
(4) A lawyer shall at all times use his best endeavours to
complete any work on behalf of his client as soon as is
reasonably possible.
...
(7) A lawyer shall, when in his client’s best interests, seek his
client’s instructions to endeavour to reach a solution by
settlement out of court rather than commence or continue
legal proceedings.”
92. Learned Counsel for the Defendants in my view, breached these
rules. Counsel has turned a blind eye to the conduct of the Minister which
was not in accordance with any provisions of the Forestry Act but, in fact
acting in breach of the provisions of s. 86 or even s. 97 of the Act, the
Minister wrongly use. It was the professional duty of Counsel to advice
his client to concede acting in breach of the principles of natural justice
and the process prescribed by s. 86 or 97 of the Act, in view of the
foregoing findings and reasons and assist his client to promptly resolve
this matter without unnecessarily putting the matter to trial. The position
taken by Counsel for the Defendants in my view, with respect, is
demonstrative of a lack of due diligence as required and in breach of Rule
8 (1), (2), (3), (4) and (7) of the Lawyers’ Professional Conduct Rules.
93. The conduct of Counsel here can be contrasted with the conduct of
Counsel for the Minister and decision maker in Arran Energy (Elevala)
Ltd & Ors v. Hon. Kerenga Kua & Ors (2023) N10268. That case raised
issues of noncompliance of processes prescribed under the Oil and Gas
Act 1998. On Counsel’s advice, the Minister agreed to the plaintiffs’
claims, recalled, retract his decision the subject of the proceeding and
replaced it with a new decision that duly complied with the prescribed
processes under the Act. Endorsing the steps taken by the Minister in that
case, I said in the context of an argument that the Minister was functus
officio at [35]:
Citing from my earlier decision in “There are three further
foundations for holding that the doctrine of functus officio has no
application independent of s. 35 of the Interpretation Act and the
forgoing discussion in administrative decisions unless a subject
specific legislation clearly and expressly provides for the
application of that doctrine. The first of the three factors is that,
modern judiciaries recognise the parties in a dispute’s autonomy
and or right of self-determination in the resolution of their conflicts
or disputes... For any decision they make and resolution they
themselves arrive at, finally and fully resolves all issues between
them and they can live with that as opposed to a court decision
imposed upon them... Consistent with that recognition, Parliament
added Part IIA of the National Court Act in 2008 through National
Court Amendment Act 2008 (Number 4 of 2008). Based on that
legislative foundation and the provisions of s. 184 of the
Constitution, the Judiciary on its part promulgated the ADR Rules
2010.”
94. Koitaki Plantations Ltd v. Charlton Ltd (2014) N5656, I noted the
cause for that change in legislation in these terms:
“Driven by a desire to overcome the problem of backlogs and to
ensure delivery on the wish to resolve conflicts expeditiously at less
costs in a timely manner, ADR and in particular mediation were
introduced. ... Since their inception, ADR and mediation began and
continue to deliver on the desire that led to their introduction so
much so that the world was persuaded to accept them.”
95. I went on to discuss the decisions of the Supreme Court in NCDC
v. Yama Security Services Pty Ltd (2003) SC707 and Henry Torobert v.
Mary Torobert (2012) SC1198 which spoke in support of mediation and
the parties’ own resolution of their disputes. I also went on to discuss my
decision in Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014)
N5636, which provides a list of cases or issues inappropriate for
mediation and hence the parties’ own resolution. Thereafter, I cited my
summation of the effect of the development of the law in relation to
parties resolving their disputes through mediation and other forms of
ADR and lawyers’ duties in the following terms:
“The sum effect of all these is that a lawyer is now more duty
bound than ever before to take all steps necessary to have a client’s
case resolved within a reasonable time and at less costs. That duty
is imposed by the lawyers Professional Conduct Rules 1989 and
the relevant and applicable legislation which includes the relevant
provisions of the National Court Act and the ADR Rules that were
enacted thereunder. Unless a case falls in the category of questions
or cases inappropriate for resolution by ADR and or mediation,
lawyers are bound both by their professional conduct rules as well
as the relevant legislation and the various judicial pronouncements
from both the Supreme and National Courts to take all steps
necessary to resolve their client’s cases more readily out of court. A
lawyer who fails in his or her duty without good reason would be
guilty of misconduct as a lawyer and undoubtedly attract unto
oneself, personal liability for costs and interests unnecessarily
forced on the client by their.”
96. Turning specifically to judicial review proceedings, I commented at
[41] and [42]:
“It should follow therefore that, unless a case, and in particular in
a judicial review matter which concerns an administrative decision
and not a court decision, presents an issue of the type listed in
paragraph 18 of the decision in Able Construction Ltd v. W.R.
Carpenter and Order 2, Rule 2 (3) (b) of the ADR Rules 2022, they
are ideal for resolution by the parties through their own direct
negotiations or choices and failing that, by mediation or such other
forms of facilitated settlement. The lawyers should be the first in
line to encourage their respective clients to have the matter
resolved. Consistent with their Professional Conduct Rules [and]
the ADR Rules 2022, they have a duty to assist the parties to
resolve their dispute rather than insisting on litigation. This is
necessitated by the fact that a Court in a judicial review
proceeding can only determine whether due process and procedure
has been followed by a decision maker to arrive at his or her
decision but not the correctness or otherwise of the decision itself.”
97. I went on to say at [43] and [44]:
“43. Hence, a successful judicial review application would see the
substantive matter left to be dealt with by the decision maker in
accordance with the prescribed process and procedure. That may
not fully resolve the issues between the parties. If a decision maker
agrees or decides at any stage of the proceeding to retract, review,
or otherwise revisit his or her decision which is the subject of a
judicial review application, that should be readily permitted.
44. This leads us to the second additional factor. Appropriate and
timely administrative decisions by the executive arm of the
government is necessary for the good order, smooth, efficient, and
effective functioning of public administration by the executive arm
of government. Litigation through the judicial review process puts
a brake on that. It is a given fact in our jurisdiction that, such
proceedings, like other matters before the courts, sometimes takes
years to reach finality. Given the importance of an efficient and
effective public administration, the courts when dealing with
judicial review matters, must never lose sight of the principles that
underpin the doctrine of separation of powers. ...
When an administrative decision maker faced with a judicial
review application, concedes, and is prepared to do what is
required to resolve the issue, the judiciary’s duty it should be to
respect such acceptance of responsibility and allow the decision
maker to resolve the matter. The same goes for a plaintiff who
brings a judicial review application in which the decision maker
concedes and is prepared to resolve or fix the problem presented in
the judicial review application rather than insist and press on the
litigation path. A plaintiff will of course, have the right to return to
the Court if the decision maker’s subsequent decision fails to
resolve the matter in controversy and there are good grounds for
judicial review. Hence, the plaintiff does not miss out on anything
save only for costs which can be easily taken care of by an
appropriate order. In the light of all this, a party insisting on
litigation should not be permitted.”
98. Returning to the case at hand, Counsel for the Defendants, without
any legislative or case authority supporting his submissions, chose to
advance the argument that because the Permits were granted illegally, that
disentitled Mayur to any notice, the right to be heard and a hearing before
the Decision to cancel was arrived at. Inherent in the argument, is
effectively a submission that the Minister was entitled to proceed to
summarily cancel the Permits and do so on his own and to the exclusion
of the managing director of the PNGFA and the NFB. This kind of
conduct and or attitude is clearly an affront and an offence against the
long establish principles of law in a just and democratic society like ours
which is governed by the rule of law with due process and procedures and
not by dictators, or the like, who become law unto themselves. I repeat,
“two wrongs don’t make a right”. Public order, good administration and
good governance dictates forewarning or notice, an according of an
opportunity to be heard and hear the person who stands to be adversely
affected by a proposed public authority’s decision before the decision is
in fact made. Exceptions to this are limited to cases in which the law
expressly excludes the right to be heard for good reason.
99. In the present case, going by ss. 86 or 97 of the Act, Mayur was
entitled to notice, opportunity given to be heard and be heard but was not
given accorded those rights and opportunity before the Decision to cancel
the Permits was arrived at. Accordingly, I find the ground of denial of
natural justice is made out.
(4) (i) Unreasonable Decision – Third Issue
100. This takes us to the fourth issue of the Decision being unreasonable
in the Wednesbury sense. In respect of that issue, Mayur submits firstly
that, the Decision to cancel the Permits was contrary to PNGFA’s own
policy statements and statements by its past Ministers, such as the
statements made by Former Minister, Hon. Belden Namah. Secondly, it
submits, the Decision was contrary to the directions given by the former
Minister Schnaubelt, which were not revoked or cancelled. Thirdly, it
submits the Decision was contrary to the OTPD, the HOA, Memorandum
of Agreement, and the Directions of the former Minister. Fourthly, the
decision was contrary to the matters outlined at [12] to [42] of this
judgment. Finally, the Decision was contrary to the wishes of the
landowners as is evidenced by the OTPD.
101. The Defendants’ arguments under this issue are in the same terms
as those presented under the first and second issues. In short, they argue
that the only relevant considerations are the illegality of the Permits based
on the lack of any provision for such permits under the Forestry Act and
Mayur not being a FIP. As already noted, the argument here effectively is
that the illegality rendered Mayur lacking standing to apply for and being
granted the Permits in the first place. Consequently, they submit
effectively that the Minister was entitled to proceed to unilaterally and
summarily cancel the Permits without the NFB and the Managing
Director of the PNGFA playing their respective parts.
(4) (ii) Consideration and determination of the issue of
reasonableness of Decision – Third Issue
102. The principles of law on this issue are well settled. Numerous
decisions of the Supreme Court discuss and state the relevant principles.
One such decision is the decision in Ombudsman Commission v. Peter
Yama (2004) SC 747, per Injia DCJ, Sakora & Sawong JJ (as they then
were). That decision states the law in these terms:
“The Wednesbury principle of ‘unreasonableness’ is described by
Lord Green MR as a decision that is ‘so absurd that no sensible
person could dream that it lay within the powers of the authority -
a decision that no reasonable body, could have come to.’ It is
embodied in the principle of ‘irrationality’ that we referred earlier.
We prefer a simplified break-up of this principle into six (6)
categories by Doherty J in Kim Food & Sons Pty Ltd v. Minister
for Finance and Planning N1464 (1996) as follows:
(a) It must be a real exercise of the discretion;
(b) The body must have regard to matters which it is expressly
or by implication referred by the statute conferring the
discretion;
(c) It must ignore irrelevant considerations.
(d) It must not operate on the basis of bad faith or dishonesty;
(e) It must direct itself properly in law; and
(f) It must act as any reasonable person would act and must not
be so absurd in its action that no reasonable person would act
in that way.”
103. In my view, this means the whole of a decision makers conducts
prior to, during and after the decision is made would be relevant. In the
present case, I find the Minister acted unreasonably for several reasons.
Firstly, going by either s. 86 (correct provision) or s. 97 (wrongly relied
upon by the Minister) of the Act, the Minister failed to satisfy himself that
one of the triggers or condition precedent namely, a conviction of an
offence (a) against the Forestry Act, or (b) any conviction concerning
forestry matters or against any other law and or (c) Mayur failing to
comply with any of the conditions of the Permits existed as a matter of
fact. Proceeding without any such trigger or a condition precedent being
established against Mayur, suggests not only was the decision wrong and
unlawful but suggests unreasonableness in the process employed and
without having any valid cause established against Mayur, by way of any
of the prescribed triggers.
104. Secondly, despite the lack of an existence of any of the condition
precedent or triggers, the Minister decided to proceed to cancel the
Permits. That he did, without first meeting the relevant and necessary
process prescribed by s. 86 or s. 97 of the Act as I outlined at [75] and
discussed above. A reasonable and fair-minded decision maker would
always check and see to it that, all due process and procedures have been
duly met or fulfilled and there is no impediment to proceeding to making
a decision without first hearing the person standing to be affected by the
proposed decision. In the instant case, the Minister failed to follow the
prescribed process and meet the relevant requirements. 105. Thirdly, the discussion and findings under the grounds of ultra vires, non-compliance, and denial of natural justice together and separately on their own renders the Decision unreasonable and is a Decision no reasonable decision maker would have arrived at. 106. Fourthly, as already noted in the context of the grounds for review earlier discussed and determined, the Minister and the other Defendants effectively take no issue on their failure to follow due process and the procedure prescribed under s. 86 (correct provision) or s. 97 (wrongly used by the Minister). Yet, as already noted, the Defendants seek to justify their failures and protect the Decision by their claim of Mayur not being a FIP and the Permits not being provided for by any specific provisions of the Act. I addressed these claims of the Defendants in my consideration and determination of the issues of ultra vires and denial of natural justice. Also, I have already found that these claims are an affront and an offence against the rule of law with its due process and procedures in a democratic society like ours and should not be allowed to stand. To those I now add a few additional points. 107. Firstly, the submission and position of the Defendants is maintained without any response to Mayur’s submissions that it applied to become a FIP which was wrongly rejected due to a wrong position at law taken by the managing director of the PNGFA. 108. Secondly, the issue of FIP and Permits not provided for in the Act, are matters that the former Minister Walter Schnaubelt, the then members of the NFB, the managing director and the leaders of the PNGFA were very aware of at the time of considering Mayur’s application for a grant of the Permits and the decision granting that application. A deliberate decision was made to grant the Permits. The decision put words into action on PNG’s international and domestic obligations in the light of Climate Change and the related emergency or the pandemic that is waiting to happen unless serious, urgent, and meaningful steps are taken by all of humanity in Climate Change mitigation and adaptation efforts. The decision leading to the grant of the Permits at the first place were compelled or dictated by the Climate Change Emergency and the need for appropriate action. 109. In my decision in Saonu v. Mori (supra), I described the Climate Change related risks or threats as the next pandemic after the Covid-19 pandemic at [69] in the following terms:
“... our global village is facing the next possible pandemic, namely
climate change and its many associated adverse consequences
caused mainly by global warming due to increased levels of
greenhouse emissions, unless all countries and all persons
meaningfully take mitigation and adaptation measures in earnest.
Human activity since the industrial revolution in the 1770s which
has and is continuing to adversely impact upon the environment is
contributing substantially to greenhouse gas emissions. Serious
global concern over this likely next pandemic has given rise to
several international protocols such as the Kyoto Protocol which
operationalises the United Nations Framework Convention on
Climate Change by committing industrialized countries and
economies in transition to limit and reduce greenhouse gases
emissions in accordance with agreed individual targets. ...It follows
therefore that, as a sensible and responsible global citizen, PNG
through the Minister and the MD of CEPA [ and everyone else],
should stay guided by the objects and purpose of the
EA2000 ...This is necessitated and or dictated by the challenge that
are facing our country and the world today due to climate change
and its many adverse consequences.”
110. I have already found in the present case, the conduct and attitude of
the Minister Mirisim and the rest of the Defendants and their Counsel as
an affront and offence to the rule of law. I now also find the conduct and
or attitude displayed by the Defendants and their Counsel is also an
affront and offence against the various global and domestic resolves and
efforts made to meaningfully address humanity’s existential threat posed
by the Climate Change Emergency.
111. The United Nations Environment Programme or UNEP describes
the emergency in the following terms:
“The science is clear. The world is in a state of climate emergency,
and we need to shift into emergency gear. Humanity’s burning of
fossil fuels has emitted enough greenhouse gases (GHGs) to
significantly alter the composition of the atmosphere and average
world temperature has risen between 1.1 and 1.2°C.”
(Underlining supplied)
112. Standing at the core of the steps our global village has taken and
needs to take is United Nations Environment Programme (UNEP) with a
four-pronged approach. The UNEP describes the approaches as follows:
“1. Providing cutting-edge research to support science-based
decision-making.
2. Working across sectors to support the transition to a low-
carbon, more resilient future and reduce emissions while
adapting to the climate impacts.
3. Ensuring a just transition to a carbon-neutral world, by
empowering communities to adapt to changing conditions and
increase resilience.
4. Providing sustainable mechanisms to unlock finance for
mitigation and adaptation efforts.”
113. In my decision in Kula Oil Palm Ltd v. Tieba (supra) I noted in that
context and commented on how much deforestation contributes to the
emergency at [22] in the following terms:
“All the known science around us is pointing us to only one
conclusion, namely, global warming and climate change is real
and is not a science fiction or theory anymore. The focus has
shifted to what adaptation and mitigation efforts, must we
urgently take not only for the sinking countries and cities, but
the whole world or our global village.”
114. I went on to note at [23]:
“Global warming is attributable to greenhouse gas emissions.
Greenhouse gas is a gas that absorbs and emits radiant energy
within the thermal infrared range, causing the greenhouse effect...
The primary greenhouse gases in the Earth’s atmosphere are water
vapor (H2O), carbon dioxide (CO2), methane (CH4), nitrous oxide
(N2O), and ozone (O3). Without greenhouse gases, the average
temperature of Earth’s surface would be about −18 °C (0 °F), ...
rather than the present average of 15 °C (59 °F).”
115. Finally, at [24] I noted:
“There is no debate that, human activities since the beginning of
the Industrial Revolution (around 1750) have increased the
atmospheric concentration of carbon dioxide by almost 50%, from
280ppm in 1750 to 419ppm in 2021... The last time the
atmospheric concentration of carbon dioxide was this high was
over 3 million years ago... This increase has occurred despite the
absorption of more than half of the emissions by various natural
carbon sinks in the carbon cycle.... According to the United
Nations’ Intergovernmental Panel on Climate Change (IPCC), at
current greenhouse gas emission rates, the globe’s temperature
could increase by 2 °C (3.6 °F), which is the upper limit to avoid
“dangerous” levels by 2050.... Deforestation contributes about
20% of the total greenhouse gas.”
116. Scientific American in its article headed Deforestation and Its
Extreme Effect on Global Warming, elaborates in these terms:
“By most accounts, deforestation in tropical rainforests adds more
carbon dioxide to the atmosphere than the sum total of cars and
trucks on the world’s roads. According to the World Carfree
Network (WCN), cars and trucks account for about 14 percent of
global carbon emissions, while most analysts attribute upwards of
15 percent to deforestation.”
117. The article goes on to explain why logging contributes more to
greenhouse gas emissions in the following way:
“The reason that logging is so bad for the climate is that when
trees are felled they release the carbon they are storing into the
atmosphere, where it mingles with greenhouse gases from other
sources and contributes to global warming accordingly. The
upshot is that we should be doing as much to prevent
deforestation as we are to increase fuel efficiency and reduce
automobile usage.”
118. As the article goes on to explain, one sure way to reduce
greenhouse gas emissions and contribute to slowing down global
warming is to reduce deforestation. Several responsible tropical
governments with rainforests are already on to that measure by getting
into deliberate participation in the United Nations’ REDD+ Scheme. The
article goes onto say, the REDD+ Scheme mainly works to establish
incentives for the people who care for the forest to manage it sustainably
while still being able to benefit economically. It then reports the REDD+
Scheme “has channeled over $117 million in direct financial aid and
educational support into national deforestation reduction efforts in 44
developing countries across Africa, Asia and Latin America since its 2008
inception.”
119. In the light of the Climate Change Emergency and the global
efforts and steps taken by responsible governments, the Project in the
instant case was no ordinary case. It was special and important. The
matter concerned a deliberate decision that was arrived at, and action
taken by the former Minister Schnaubelt and the then NFB and those
leading the PNGFA at the relevant time to develop and implement one of
PNG’s first ever REDD+ Scheme or a project. The relevant authorities or
decision makers were distinctly aware of the fact that the Act does not
expressly provide for the kinds of Permits that were issued and provided
for a back filling of this appearance of a void in the legislation.
120. Repeating what I already stated, our country is part of the global
village that is faced with the existential threat or the next pandemic
waiting to happen. This calls for urgent and immediate steps to be taken
as is usually done in any emergency or a pandemic like the recent
Covid-19 Pandemic, for example. An emergency or a pandemic often
sees certain laws and rights get suspended such as those we experienced
under the Covid-19 Pandemic to effectively deal with the emergency or
pandemic. Some of the steps may be completely new or original and
unprecedented and may not already be prescribed and or provided for by
existing legislation. As was done in the Covid-19 Pandemic, most
sensible and responsible nations are taking unprecedented steps with the
Climate Change Emergency. These unprecedented steps are dictating
legislative reform and changes to give them their written legal
foundations based on experiences. The law thus coming into existence is
to guide present and future executive, judicial and all other decision
makers and most importantly, guide human conduct and behaviour going
into the future.
121. In the Climate Change related emergency, we are fortunate to have
a whole body of law that is being developed and crystalized into accepted
and settled principles under the broad heading of Environmental Rule of
Law internationally and domestically by many countries. These principles
are succinctly state in the International Union for Conservation of Nature
World Declaration on the Environmental Rule of Law (World
Declaration). That World Declaration was made by a group of experts
from the World Commission on Environmental Law at the International
Union for Conservation of Nature World Environmental Law Congress in
April 2016. The declaration establishes 13 principles. The first 5
principles are relevant for our purposes. They are:
“Principle 1 – the obligation of each state, public or private entity,
and individual to protect nature.
Principle 2 – the right of each human and other living being to the
conservation, protection, and restoration of the health
and integrity of ecosystems; and the inherent right of
nature to exist, thrive, and evolve.
Principle 3 – the right of each human, present and future, to a safe,
clean, healthy, and sustainable environment.
Principle 4 – taking legal and other measures to protect and restore
ecosystem integrity and to sustain and enhance the
resilience of social-ecological systems.
Principle 5 – the principle of in dubio pro natura (i.e., in cases of
doubt, all matters before courts, administrative
agencies, and other decision makers shall be resolved
in a way most likely to favour the protection and
conservation of the environment, with preference to
be given to alternatives that are least harmful to the
environment).”
122. Although there is no evidence on point in the case before me now,
it is possible to infer from the steps taken by the former Minister
Schnaubelt and the then occupiers of NFB, the managing director and the
senior management of the PNGFA, worked in accordance with the above
principles and decided in favour of Mayur’s application and granted the
Permits.
123. Thirdly, I repeat my view under the issue of ultra vires that the
objectives of the Forestry Act combined with the functions of the PNGFA
are broad enough to accommodate permits of the kind issued in this case.
This is apparent from the first and priority objective of the Act in terms of
“management, development and protection of the Nation’s forest
resources and environment in such a way as to conserve and renew them
as an asset for succeeding generations”. That broadness of the objective
is complimented by the functions of the PNGFA in terms of:
“(j) to act as agent for the State, as required, in relation to any
international agreement relating to forestry matters; and
(k) to carry out such other functions as are necessary to achieve
its objectives or as are given to it under this Act or any other
law.”
124. In the context of that broadness, I also observed that the Act does
not restrict timber permits to be issued only for logging or cutting down
of trees. Further, I repeat my view that, the Act does not expressly
exclude any consideration and grant of timber permits for carbon
offsetting projects.
125. Finally, the lack of reason given at the time of the Decision, failure
to follow prescribed procedure and the broad objectives and functions of
the Act and the PNGFA, there are more questions than answers as to why
the Minister decided to cancel the Permits. The questions include:
(1) What caused Minister Mirisim to cancel the Permits?
(2) What became of the factors that underpinned and led to the
grant of the Permits at the first place?
(3) Did anyone complain and what was the nature of the
complaint?
(4) Was the alleged illegality of the Permits and Mayur not
being a FIP the only and real reasons for the Decision to
summarily cancel the Permits?
(5) Where did Minister Mirisim get his power from to cancel the
Permits unilaterally and summarily without the managing
director of the PNGFA and its Board playing their respective
parts?
(6) What is Minister Mirisim’s personal preference if Climate
Change related urgent and immediate action are not his
priorities?
(7) Was there any change in government policy to move away
from taking the appropriate steps to protect our forest
reserves and go down the path of REDD+ Schemes or
projects?
(8) If yes to question (7), what is the new policy?
(9) Does the new policy accommodate Climate Change and
related risks and the urgent steps that need to be taken in
mitigation and adaptation?
(10) If yes to question (7), when is a new REDD+ Scheme or
project going to be delivered in place of the cancelled
Permits and hence the proposal by Mayur?
(11) Who are the proponents for any REDD+ Scheme and do
they have the necessary persuasion, interest, capacity and
means to successfully implement the project?
(12) Was Mayur given notice and heard on the proposed change
in government policy?
(13) Given the long and controversial history of the Kamula Doso
Area, have the landowners who stood to gain from the
cancelled Permits and who now stand to be affected, duly
consulted by the Minister before arriving at the Decision to
cancel the Permits?
(14) If yes to question (13), what are the landowners’ views and
how is that reflected in the Decision?
(15) Was the Minister aware of the Orders the National Court
made in proceedings, OS 09 of 2020 and OS 192 of 2020?
(16) In the absence of any evidence or submissions from the
current Minister of Forests, what is his and that of the
executive government’s position on the Climate Change
Emergency and the urgent steps PNG as a country needs to
take in adaptation and or mitigation?
126. This lack of answers to the above questions, the lack of evidence, explanation and submissions from the Defendants reveals in my view, the Minister failed to take into account relevant factors in addition to failing to follow due process and meeting the requirements of natural justice to arrive at his Decision. This lack in answers and explanations also gives rise to the suggestion that the Minister had an ulterior motive or purpose which runs contrary to the current international (including PNG) resolve on the need to take urgent Climate Change related actions in adaptation and mitigation through schemes such as the REDD+ Schemes or Projects in response to the existential threat and emergency humanity is faced with today. 127. Having regard to all the foregoing, I find the Decision under review was an unreasonable Decision which was arrived at contrary to the process prescribed by s.86 or s.97 of the Forestry Act and generally the principles of natural justice, no reasonable and fair-minded decision maker would have arrived at. The review ground of the Decision was unreasonable, is therefore made out. (5) (i) Decision tainted by Bias – Fifth Issue 128. This leaves us to deal with the remaining issue of the decision being tainted by bias. Relying on the Affidavit of Thomas Charlton, Mayur submits the Decision was also tainted with bias on the part of Minister Mirisim. The argument for Mayur is that the Minister has been pro logging and was in favour of logging rather than carbon offset projects. Mayur further submits on this front, that the PNGFA is still pushing for logging in the Kamula Doso Area, whilst these proceedings are on foot and there are existing Court orders against logging. The evidence through the affidavit of Thomas Charlton confirms a logging company is preparing roads and bridges in the area for logging purposes. 129. The Defendants submit there is no evidence to support the allegation that the Defendants acted with bias. They repeat and maintain their position on the issue of Mayur not being a FIP and the Forestry Act not providing for and regulating Permits of the type issued in favour of Mayur. They then refer to the affidavit of Rabbie Lalo who deposes that the evidence of the Plaintiff in relation to the Free Prior Informed Consent (FPIC) as being under the auspices of Forestry Project and not a carbon offset project. Proceeding on that basis, the Defendants submit Mayur has not complied with the necessity of seeking and obtaining FPIC under the Act.
(5) (ii) Consideration and Decision on Bias – Fifth Issue
130. Just because a person is pro something does not necessarily follow
that he or she is bias when it comes to decision making. In the context of
the law and judicial review, much is dependent the relevant law, the
relevant facts, and the reasons for decision.
131. None of the parties assisted with any submissions on the relevant
principles of law on the question of bias and more so the test to determine
if a decision is tainted by bias or not. One of the leading authors, D
Smith in administrative law under which judicial review falls in his book,
Judicial Review of Administrative Action [3rd Edn; 1977] at p. 563 states
the relevant principles in the following terms:
“A more common formulation of the test is: Would a member of the
public, looking at the situation as a whole, reasonably suspect that
a member of the adjudicating body would be biased? Another
common formulation is: Is there in fact a real likelihood of bias?
There is no need, on either formulation, to prove actual bias;
indeed, the courts may refuse to entertain submission designed to
establish the actual bias of a member of an independent tribunal,
on the ground that such an inquiry would be unseemly. In practice
the tests of “reasonable suspicion” and “real likelihood” of bias
will generally lead to the same result. Seldom indeed will one find
a situation in which reasonable persons adequately apprised of the
facts will reasonably suspect bias but a court reviewing the facts
will hold that there was no real likelihood of bias. Neither
formulation is concerned wholly with appearances or wholly with
objective reality. In ninety-nine cases out of a hundred it is enough
for the court to ask itself whether a reasonable person viewing the
facts would think that there was a substantial possibility of bias.”
(Underlining supplied).
132. These principles have been adopted and applied in our jurisdiction
in many Supreme and National Court decisions. One of the decisions that
does that, is the decision of the Supreme Court in Application by Herman
Joseph Leahy (2006) SC981, per Kapi CJ, Cannings & David JJ where
the following his clear from the headnote to the judgment:
“ ...the test to be satisfied is: would a reasonable and fair-minded
person knowing all the relevant facts have a reasonable suspicion
or apprehension that a fair hearing was not possible? (Boateng v
The State [1990 PNGLR] 342, PNG Pipes Pty Ltd and Sankaran
Venugapal v Mujo Sefa, Globes Pty Ltd and Romy Macasaet (1998)
SC592 applied.
The suspicion or apprehension of bias must be based on
reasonable, not fanciful, grounds.”
133. With the above test in mind, I note firstly that, as a matter of fact,
Mayur has alleged with the support of evidence it produced that Minister
Mirisim, had a bias toward logging and not carbon offsetting projects.
Given that position, the suggestion is that, when he became Minister
again for Forests, he moved quickly to cancel the Permits without
observing due process and without according to Mayur who stood to be
directly affected adversely by his Decision, an opportunity to be heard.
The Minister and the other Defendants have not produced any evidence
rebutting that allegation in any way.
134. Secondly, the Defendants only response is their ready resort to
Mayur not being a FIP and the Act not providing for Permits. This does
not assist the Defendants at all for the reasons I have already given above
in rejecting their reliance on those points.
135. Finally, on the issue of FPIC, whilst it is an important requirement,
this was not given as one of the reasons for cancelling the Permits, when
the decision was made. It is an afterthought and as such it cannot be
considered for the purposes of a decision in this review.
136. Based on the forgoing facts and considerations, the relevant
question to ask is, would a reasonable and fair-minded person knowing
all the foregoing have a reasonable suspicion or apprehension that the
Minister did not fairly consider all the relevant facts, process, and
procedure before deciding to cancel the Permits. The answer to that
question is a yes. The Minister’s conduct which are the subject of
consideration and discussions under the grounds earlier considered, in my
humble view, lends support to the claim of bias. The absence of any
explanation given by Minister Mirisim or the current Minister and their
failure to provide reasonable reasons for the decision to cancel the
Permits in the way he chose to do so, lends further support for the claim
of bias. Accordingly, I uphold the ground of bias as claimed.
Decision in Summary
43. In summary I have upheld all the grounds for review. This lays the
necessary foundation for a grant of the main and consequential reliefs
sought by Mayur. Accordingly, I make an order in the form a certiorari to
quash Minister Mirisim’s Decision revoking the Permits granted to
Mayur. Then in the particular circumstances of this case, I am also
persuaded that I should grant Mayur’s requests for the interim injunctive
Orders made on 14th December 2022 (similar to Orders made in the other
proceedings, namely OS 09 of 2020 and OS 192 of 2020) to be made
permanent at least in so far as the Kamula Doso Blocks 1, 2, 3 Area is
concerned in view of the kind of attitude shown by PNGFA and its
disregard of Orders this Court has already made which are still current,
PNG’s international obligations and commitments under the various
Climate Change and Environment related conventions, treaties or
protocols which advocates amongst others, for REDD+ Schemes or
projects as opposed to logging and the wishes of the Kamula Doso Area
landowners.
44. Ultimately, and in short, I make the following orders based on the
foregoing reasons:
1. The Application for a review of the Decision of the First
Defendant dated 27 May 2022 is upheld.
2. An order in form of a certiorari to remove into this Court and
quash the decision of the First Defendant dated 27 May 2022
to cancel the Plaintiff’s Timber Permits numbered FCCTP1-
O1, FCCTP1-02 and FCCTP1-03 with respect to the Kamula
Doso Blocks 1, 2, and 3 Project Area.
3. Subject to term 4 of these orders, an order in the form of a
permanent injunction against the Defendants from cancelling
or otherwise taking any action or in action that will seriously
affect the implementation of the project covered by the
Plaintiffs Timber Permits numbered FCCTP1-O1, FCCTP1-02
and FCCTP1-03 with respect to the Kamula Doso, Blocks 1, 2
and 3 Project Area.
4. Term 3 of these orders do not preclude the Defendants from
exercising their powers and functions strictly in accordance
with the relevant provisions of the Forestry Act generally and
specifically under Section 86 of the Act if there is an intention
to cancel any or all three of the Permits under reference
FCCTP1-O1, FCCTP1-02 and FCCTP1-03 with respect to the
Kamula Doso Blocks 1, 2 and 3 Project Area.
5. The Court reiterates the restraining orders it had already
made in proceedings, OS. No. 09 of 2020 – Robin Kami &
Others v. Aset Meriah PNG Ltd, Umboi Timber Investments
Ltd & PNG Forest Authority & Ors and OS No.192 of 2020
Wisa Susapie and Tumu Timbers v. PNGFA, which impose an
immediate ban on any further grant of Timber Permits and
logging in all Timber Rights Purchase Areas throughout the
country until the Papua New Guinea National Forest Authority
(PNGFA), the Conservation and Environment Protection
Authority (CEPA), the Climate Change Development
Authority (CCDA), their respective boards or superiors and
the PNG Customs Services fully comply with the various
orders of the Court or the orders are revisited and set aside.
6. If the Plaintiff wishes to pursue its claim for damages, it
shall do so by way of a writ of summons pleading its damages
clearly and succinctly for the Defendants to consider and
respond and settle and or failing any settlement, determination
by the Court.
7. Costs of the proceeding are ordered in favour of the Plaintiff
to be agreed, if not taxed.
8. For clarity, this judgment and orders conclude this
proceeding, subject only to any enforcement proceeding.
9. Time for entry of these orders be abridged to the date of
settlement by the Registrar which shall take place forthwith.
___________________________________________________________
Ashurst Layers: Lawyers for the Plaintiff
Holingu Lawyers: Lawyers for the First Respondent
