Wisa Susupie v PNG Forest Authority & Others [2020]
Dispute over the issuing of an FMA for Kamula Doso in Western Province
Logging companies mentioned in this document:
N11258
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 192 OF 2020 (IECMS)
BETWEEN
WISA SUSUPIE- In his Capacity as a MEMBER OF THE PROVINCIAL
FOREST MANAGEMENT COMMITTEE- WESTERN PROVINCE &
CHAIRMAN OF TUMU TIMBERS DEVELOPMENT LIMITED
First Plaintiff
AND:
TUMU TIMBERS DEVELOPMENT LIMITED
Second Plaintiff
AND
RUPERT TAMBUA – As CHAIRMAN & OTHER
MEMBERS OF THE PROVINCIAL FOREST
MANAGEMENT COMMITTEE OF WESTERN
PROVINCE
First Defendant
AND
THE PAPUA NEW GUINEA FOREST
AUTHORITY
Second Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW
GUINEA
Third Defendant
WAIGANI: KANDAKASI DCJ
06 MARCH 2023; 28 APRIL 2025
PRACTICE & PROCEDURE – Application for set aside of conditional
interlocutory orders – Orders requiring compliance of previous orders by applicant
- No explanation for failing to comply with prior and the orders sought to be set
aside – Intend and purpose of the orders - Relevant requirements and the law – Application an abuse of process for file outside required time and without leave of the Court. PRACTICE & PROCEDURE – Correct party to raise failure to meet notice requirements under the Claims by and Against the State Act when the State is named as a party – Only State entitled to raise any lack of notice – Abuse of process for other parties to raise, PRACTICE & PROCEDURE – Application for summary judgment – relevant principles and considerations – Reasonable cause of action disclosed – Summary determination inappropriate remedy ENVIRONMENT LAW – Climate Change Emergency - Urgent and immediate actions in mitigation and adaptation required – Environmental Rule of Law – Relevant Principles – World Declarations - 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– Court orders requiring compliance of international and domestic law for appropriate climate change related action not complied with – Application seeking to set aside such orders contemptuous – Application dismissed. Facts A group of customary rainforest resource owners (plaintiffs) issue proceedings and applied for interim restraining orders against a decision of a Provincial Forest Management Committee (PFMC) from being given effect to. The decision certified their area as a Forest Management Area (FMA). That would have seen a logging out of the rainforest resulting in possible irreparable damage to the rainforests and the biodiversity dependent on it and thereby contribute adversely to the climate change related emergency. The plaintiffs claimed they were not given the opportunity through their duly elected representative (first plaintiff) and the chairman of their landowner company (second defendant) before the decision in question was arrived at. This they claimed was deliberate because the defendants knew the plaintiffs were opposed to their area being certified as an FMA because they had already entered into a contract to maintain their rainforest and get into a carbon trade business.
Given the climate change related emergency and the need to protect the remaining
rainforests of the world which includes those in Papua New Guinea and being
convinced that irreparable harm or damage could be done to the rainforests
concerned, the Court on 10 March 2021 granted the interim orders that were
sought (10 March Orders). The orders were in effect a repeat and reinforcement of
orders previously made against the Papua New Guinea Forest Authority (PNGFA),
the Climate Change Development Authority (CCDA) and the Conservation
Environment Protection Authority (CEPA) and the State, which remain to be
complied with. Included in the 10 March Orders was an order dispensing with the
strict requirements for service of the proceedings and the motion for the interim
orders. The orders were subsequently extended and reaffirmed by several
subsequent orders. On each occasion the defendants failed to turn up despite the
service of the proceedings and motion leading to the 10 March Orders.
The second defendant, the PNGFA in whose absence the 10 March Orders were
made, applied to set aside those orders only. That application was filed more than
a year after the 10 March Orders were made and entered. To explain that long
delay, the PNGFA claimed Covid-19 pandemic prevented it from filing the
application earlier. It also claimed a lack of service of the proceedings and
application caused the delay as well. The PNGFA filed three affidavits deposed to
by its managing director in support of its application, making claims that were not
supported by any evidence directly on point. It also did not produce any evidence
of any of the people involved in the organisation of and or attendance at the
meeting, the subject of the proceedings. The main ground relied upon was that the
proceeding and the motion for the interim orders were not served on them.
However, PNGFA did not address the Court dispensing with the strict requirements
for service, affidavit of service and it filing an unconditional notice of intention to
defend. In the alternative it applied for a dismissal of the proceeding on three
grounds. The three grounds were: (1) a failure to comply with the requirements of
s5 of the Claims By and Against the State Act (CBASA); (2) pursuant to O12, r40
of National Court Rules (NCR) no reasonable cause of action was disclosed ; and
(3) the originating summons was defective because it did have endorsed on it a
warning for the defendants to file their notices of intention to defend, as required
by O4 rr25 and 26 of the NCR.
Held:
1. The Independent State of Papua New Guinea is the correct party to raise the
issue of any lack of notice under s5 of the CBASA. In this case, the State
which was named as a party did not raise the issue because evidence before
the Court disclosed the required notice was given.
2. The law allows for the dismissal of proceedings under O12, r40 of the National Court Rules (NCR) if the Court can conclude at once that the pleadings are so obviously and incontestably bad that it is beyond repair and that the only option left is to dismiss the claim. The originating summons and the supporting affidavit evidence clearly disclose a cause of action known to law which concerns the deforestation in the light of the climate change emergency (Cited and applied Kerry Lerro v. Philip Stagg & Ors (2006) N3050 and Philip Takori v. Simon Yagari & Ors (2007) SC905) 3. It is settled law that, the rules of the Court are only a means to an end and not an end in themselves. The Court must do justice on the substantive merits of the case. The lack of endorsement of the warning for the defendants to file their defence pursuant to O4, rr25 and 26 of the NCR in the originating summons in this case is a minor defect that can be cured pursuant to O1, r7 of the NCR, and should not be in the way of doing justice on the substantive merits of the case (Cited and applied Public Officers Superannuation Fund Board v. Imanakuan (2001) SC677) 4. The application is not correctly before the Court because it has been filed outside the timeframe prescribed by O12,r8 (2) and (3) of the NCR and without any leave sought and granted pursuant to O1,r7 of the NCR, no reasonable explanation has been offered for filing the application out of time and the lengthy delay in filing and no arguable case has been presented against the plaintiffs’ claim and the orders sought to be set aside (Cited and applied Barry v. Luma (2017) SC1639). 5. The orders sought to be set aside cannot be set aside because: (1) they are a repeat and reaffirmation of previous orders in other proceedings which remain to be fully complied with by the PNGFA, the CCDA and others; and (2) those orders have been subsequently extended and reaffirmed by subsequent orders which have not been also sought to be set aside. 6. The PNGFA had not: (1) complied with the orders of the Court and has failed to address one of the main reasons for granting the 10 March Orders, which was to protect the rainforests facing the risk of irreparable harm or damage by the decision that is the subject of the challenge in this proceeding; and (2) address the international principles on environmental rule which includes the principle of 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 (Cited and applied
Mayur Renewables Limited v. The Hon. Solan Mirisim & Ors (2024)
N10649).
7. For the foregoing reasons the application was dismissed. The Court also
affirmed the 10 March Orders, and all the orders previously made, set
timeframes for their compliance including a return date, the managing
directors of the PNGFA and CCDA to appear in court and failing compliance
they be dealt with for contempt of Court.
Cases cited
Kauba v. Willie (2021) SC2162
PNG Power Ltd v. Augerea (2013) SC1245
Kerry Lerro v. Philip Stagg & Ors (2006) N3050
Philip Takori v. Simon Yagari & Ors (2007) SC905
Bluewater International Ltd v. Mumu (2019) SC1798
Geru Holdings Ltd v. Kruse (2023) SC2492
Yugari v. Waranduo (2024) SC2671
Tuwi v. Goodman Fileder International Ltd (2016) SC1500
Modilon General Hospital v. Liriope (2012) N4772
Public Officers Superannuation Fund Board v. Imanakuan (2001) SC677
Church of Jesus Christ of Latter-Day Saints Inc v. Kimas (2022) SC2280
Mayur Renewables Limited v. The Hon. Solan Mirisim & Ors (2024) N10649
Kittika v. Kavana (2010) N4051
Barry v. Luma (2017) SC1639
Harry Tovon v. Carl Malpo (2016) N6240
Lady Ni Cragnolini v. Teddy Taison & Anor (2023) SC2464
Kalgregos Electrical Limited v. Mamun Investments Limited & Ors (2024) SC2655
Saonu & Ors v. Mori & Ors (2021) N9170
Kula Oil Palm Ltd v. Tieba (2021) N9559
Counsel
Mr. J. Waka for the applicant/second defendant
Mr. B. Lakakit for the first and second respondents/first and second plaintiffs
1. KANDAKASI DCJ: The Papua New Guinea Forest Authority, the
Second Defendant in this proceeding (the PNGFA) by a Notice of Motion filed on
6 May 2022 seeks to set aside interim orders made by this Court on 10 March 2021
(10 March Orders). The main ground advanced is a claim of not being served with
the proceedings and the application leading to the orders. Additionally, the PNGFA
seeks, in the alternative, a dismissal of the proceedings on three grounds. The first
is their claim of a want of notice of intention to make a claim against the State
under s5 of the Claims by and Against the State Act (CBASA). The second is their
claim of a failure to disclose a reasonable cause of action within the meaning of
O12, r40 of the National Court Rules (NCR). The third and final ground is the
originating process is defective in that it does not bear a warning for the defendants
to file their notices of intention to defendants as required by O4 rr25 and 26 of the
NCR. The plaintiffs oppose the application in its entirety and take issue with all the
basis for the application.
2. The issues the Court must thus consider and determine are:
(1) Did the plaintiffs serve the proceedings and the motion for the 10
March Orders?
In the alternative:
(2) Have the plaintiffs met the requirement for notice under s5 of the
CBASA?
(3) Do the proceeding fail to disclose a reasonable cost cause of action?
(4) Is the originating summons defective such that it must be dismissed?
3. I will first deal with the alternative issues which seek to dismiss the
proceeding. If the proceeding gets dismissed, there will be no need to consider the
first issue. But if the proceeding survives, we will consider the first issue.
4. We begin with the issue of notice under s5 of the CBASA. Relevantly, s5 of
the CBASA stipulates:
“5. NOTICE OF CLAIMS AGAINST THE STATE.
(1) No action to enforce any claim against the State lies against the State
unless notice in writing of intention to make a claim is given in accordance
with this section by the claimant to–
(a) the Departmental Head of the Department responsible for justice
matters; or
(b) the Solicitor-General.
(2) A notice under this section shall be given–
(a) within a period of six months after the occurrence out of which the
claim
arose...”
5. As has been held in many Supreme Court decisions, the requirement for
notice is a condition precedent to any claim against the State. A recent statement of
the law confirming that position is the decision in Kauba v. Willie (2021) SC2162,
per Yagi J with whom Batari and Bona JJ agreed in the following terms:
“It is trite law in our jurisdiction that the requirement to give notice in
accordance with s. 5 of the CBASA is mandatory and a “condition
precedent” to a right to bring or pursue a claim against the State. Where a
notice is not given and a proceeding is filed such a proceeding will be
deemed incompetent, even if the claim in the proceeding may have
substantial merit.”
6. This obviously concerns claims against the State and by definition, State
agencies and instrumentalities: See PNG Power Ltd v. Augerea (2013) SC1245, per
Kandakasi (as I then was), Manuhu and Kawi, JJ at [51] – [70] for a detailed
discussion of the topic. Hence, all the cases concerning a meeting or a failure to
meet the notice requirement is a defence open to be raised by the State. In a case
where the Independent State of Papua New Guinea is named as a party, the State
will necessarily be the correct party to raise the issue, if indeed it has not been
served with the required notice. This necessarily flows from the fact that notice
must be given to the State in the way prescribed by s5(1) and (2) and not anyone
else and in any other way. Consequently, the State should be the correct party to
say it has or has not received the required notice in a case where it is named as a
party.
7. In this case, the State is named as the second defendant. The State has not
raised the issue of any lack of s5 notice. This is not surprising because, there is
evidence of the plaintiffs having given the required notice by letter dated 03
November 2020, a copy of which is annexed and marked with the letter “B” to the
affidavit of Wisa Susupie sworn on 06 May 2022. Since the cause of action
accrued between 14 – 16 July 2020, the notice of intention to make this claim was
given within the required period. It follows therefore, that PNGFA is improperly
and unnecessarily raising the issue of notice, when the State who is entitled to raise
the issue, if that was an issue, is not doing so. In these circumstances, I find the
issue is raised without any merit and it amounts to an abuse of the process of the
Court. For this reason, I order a dismissal of PNGFA’s claim based on s5 of the
CBASA.
Failure to disclose a reasonable cause of action
8. I now turn to the second alternative ground of a failure to disclose a
reasonable cause of action based on O12, r 40 of the NCR. The relevant law on this
is well settled in our jurisdiction. In my decision in Kerry Lerro v. Philip Stagg &
Ors (2006) N3050, I looked at most of the cases on point at the time of that
decision and summed up the law at [13]. Then at [14] I added:
“...the pleadings must be so bad and or vague and is not a case of lack of
particulars or a lack of better pleading which cannot be cured by a request
and or orders for further and better particulars and or amendment
respectively under O.8, rr. 36, 50 or 51 of the Rules. Lack of particulars or
lack of better pleadings is distinctly separate from a failure to disclose a
reasonable cause of action or an action that is frivolous, vexatious or
harassment. As such, clear and separate consequences follow. There is
provision under the rules for requesting and or orders for further and better
particulars or better pleadings as opposed to a right in a defendant or an
opposing party to apply for a dismissal straightaway. A party must be careful
not to ask for and the Court must stop to ensure that it is not being asked to
dismiss a claim because of lack of particulars or lack of proper pleading
which can be cured by appropriate amendments to the pleadings. Regard
must also be had to the fact that the Rules are not an end in themselves but a
means to an end and by reason of which a strict compliance of the Rules can
be dispensed in the interest of doing justice in accordance with O.1, r.7 of
the Rules... in appropriate cases.”
9. These summation and statement of the law has been subsequently endorsed
and applied with approval in numerous National and Supreme Court decisions.
The decision of the Supreme Court in Philip Takori v. Simon Yagari & Ors (2007)
SC905, per Kirriwom, Gavara-Nanu and Kandakasi JJ (as we then were) is an
example of a case on point. At [25] the Court, after quoting the above summation
said in its own words:
“We agree with the above summation of the relevant principles of law. We
also agree with the addition to those principles because, they are consistent
with the way in which the law has built around O12 r 40 in our jurisdiction
to avoid any confusion between disclosing a cause of action as opposed to
insufficiency of pleadings which can be cured by amendments.”
10. The decision in Takori v. Yagari (supra) has been in turn endorsed with
approval and applied by several other Supreme Court decisions. This includes for
example the Supreme Court decisions in Bluewater International Ltd v. Mumu
(2019) SC1798 at [12]; Geru Holdings Ltd v. Kruse (2023) SC2492 at [31]; Yugari v. Waranduo (2024) SC2671 at [53] and Tuwi v. Goodman Fileder International Ltd (2016) SC1500 at [23]. 11. Going by the principles of law as discussed above, I had a look at the originating summons in the present case. It is clearly alleging breaches of certain provisions of the Forestry Act in the conduct of a particular meeting and decisions arrived at the relevant meeting. The applicant clearly understands the matters alleged and takes issue with it in its application for a set aside of the 10 March Orders. It has not expressed any difficulty in understanding what the plaintiffs are claiming. Instead, it clearly understands what the plaintiffs are claiming, and it has gone into challenging the basis for the plaintiffs’ allegations and claims, the plaintiffs’ claims are not sustainable. 12. Closely looking at the main basis for the plaintiffs’ claim per the originating summons clearly shows, the basis for their claim. It concerns the conduct of a particular meeting of the Western Provincial Forest Management Committee (PFMC) held on 16 July 2020 and a particular agenda item, item number 06 which related to a “Certification of Kamula Doso, Block 1, 2 & 3, in Kiunga and a resolution concerning that item. The plaintiffs claim the agenda was deferred for consideration at a later meeting but was brought forward and dealt with without informing them. The resolution unless set aside, allows for logging as opposed to preserving the rainforests in the relevant area through carbon trade despite the climate change related emergency we as a nation and the global community are in today. Orders in earlier proceedings already restrain the issuance of logging permits or such authorities to clear forests until previous such permits are properly accounted for. The accounting is in terms of the grant of environmental permits, compliance of their conditions, any environmental harm cause by logging and other forest clearance operations and making good of the same, adhering to and giving effect to relevant provisions of the Environmental Act 2000 as amended, international agreements and obligation in relation to the climate change related emergency, including the alternative of carbon trade. 13. The plaintiffs have filed affidavit evidence forming the basis for their claim. The PNGFA has not produced any affidavit evidence specifically rebutting the plaintiffs’ affidavit evidence. It has also not file any affidavit evidence disclosing any compliance of the previous restraining orders. 14. The question of whether the plaintiffs will succeed in their claim is not an appropriate question at this stage of the proceeding. It will be an appropriate question at the trial stage. The relevant question at this stage is whether a cause of
action known to law is disclosed. The evidence, the plaintiffs rely upon stand
unrebutted. Given the pleadings in the originating summons and the affidavit
evidence before this Court, with respect, the Court can not at once conclude that
the plaintiffs’ pleadings and affidavits filed in support fail to disclose a reasonable
cause of action that is known to law. In other words, this Court cannot as the
Supreme Court in Takori v. Yagari (supra) emphasised, conclude at once, after
examining the originating summons and the competing affidavits, that the plaintiffs
claim here is so obviously and incontestably bad that it is beyond repair and that
the only option left is to dismiss the claim.
15. For these reasons, I find the application to dismiss this proceeding pursuant
to O12, r40 is not supported by what is disclosed by the pleadings in the plaintiffs’
originating summons and the affidavit evidence filed by the plaintiffs.
Consequently, the application is against the law on point. In these circumstances, I
find the application seeking to dismiss the proceeding for an alleged failure to
disclose a reasonable cause of action is without merit and an abuse of the process
of the Court. Accordingly, I order a dismissal of this ground as well.
Is the originating summons defective?
16. I now turn to a consideration of the third alternative ground. That ground
concerns a claim that the originating summons is defective as it fails to carry a
warning for the filing of a notice of intention to for the defendants pursuant to O 4,
2r25 and 26 of the NCR. Learned Counsel for the PNGFA relies on the decision of
Davani J in Modilon General Hospital v. Liriope (2012) N4772 to support his
submissions. There, her honour raised the point on her own motion and dismissed
the proceeding. She reasoned:
“A Originating Summons not in the form prescribed by Order 4 Rule 25 and
26 of the NCR and not endorsed with a warning to file a Notice of Intention
to Defend is a nullity. No amount of amendment can cure the fact that orders
were taken out on defective proceedings.”
17. It is settled law by numerous decisions of the Supreme Court that, the rules
are not an end in themselves but a means to an end. The are supposed to be
flexible and where there is a lack of strict compliance of the rules the provisions of
O1, r 7 is there to dispense with any such noncompliance to do justice on the
substantive merits of the case. One such decision of the Supreme Court is its
decision in Public Officers Superannuation Fund Board v. Imanakuan (2001)
SC677, per Amet CJ, Gavara-Nanu and Kandakasi, JJ (as we then were). There the
Court held:
“It is now settled law that, the Rules of the Court are not an end in them but
a means to an end in all matters going before the Courts. They are only a
code of practice and there is no doubt where justice so requires, strict
adherence to the rules can be dispensed with in the circumstances of a
particular case. For more discussion on this see Anthony John Polling v.
Motor Vehicle Insurance (PNG) Trust & Others [1986] PNGLR 228 at
page 230 and The South Pacific Post Pty Ltd v. Ephraim Ikenna
Maduabuchi Nwokolo [1984] PNGLR 38 at page 46. It should be borne in
mind that, the Rules are designed to guide and assist the Courts and the
parties to reach a fair, orderly and expeditious resolution of matters before
the Courts. Their application was thus intended to be flexible: See Andrew
Kimberi of Paulus & Dowa Lawyers v. The State (1988) SC545 at page 22.
This compliments the provisions of s. 155 of the Constitution.”
18. The decision in the above case has been subsequently adopted and applied in
many subsequent Supreme Court decision. This includes the decisions in Takori v
Yagari (supra) at [12]; Church of Jesus Christ of Latter-Day Saints Inc v. Kimas
(2022) SC2280 per Kandakasi DCJ at [14].
19. The submissions for PNGFA fails to address the law as enunciated by the
various decisions of the Supreme Court on point. The decisions of the Supreme
Court are binding on the National Court. Hence, the decision of her honour Davani
J in Modilon General Hospital v. Liriope (supra) is against the clear statement of
the law by the Supreme in the cases cited and others. It must therefore give way to
the decisions of the Supreme Court on point.
20. Going by the law has enunciated by the Supreme Court decisions in the
present case, the failure to have the warning for the filing of the defendants’ notice
of intention to defend is a minor irregularity that can be easily dispensed with
pursuant to O1, r7 of the NCR to do justice on the substantive merits of the case.
The substantive matter concern parts of the country and the world’s last remaining
rainforests in the face of climate change induced and related threats to human life
and other life forms on earth. I will touch on this a little more when dealing with
the remain grounding for the application.
21. For the issue being addressed now, I find PNGFA is raising a highly
technical issue without having any regard to the authoritative decisions of the
Supreme Court on point and more so without any regard to the substantive merits
of the case. I find this is yet another instance of PNGFA abusing the courts process
in raising an issue that as no merit and proper legal foundation. Accordingly, I
order a dismissal of this ground too.
Application for set aside of 10 March Orders
22. This now leads us to deal with PNGFA’s other arguments in support of its
application for a set aside of the 10 March Orders. This requires consideration and
appreciation of the relevant factual background and the relevant chronology of
events leading to the orders in question. Thus, I get into that now.
23. By originating summons filed on 08 December 2020, the plaintiffs seek the
following two main reliefs:
“1. An Order in the Nature of a Declaration that the conduct of the
purported Provincial Forest Management Committee meeting on the 16
July 2020, particularly on Agenda No. 06 — Certification of Kamula
Doso (Block 1, 2 & 3), in Kiunga (Hotel Century) and resolution
passed therein is/was unlawful, illegal and invalid by reason of not
having the required quorum for the meeting and
2. Pursuant to Order 12, Rule 1 of the National Court Rules and or
Section 155(4) of the Constitution an order in the nature of
interlocutory injunction restraining forthwith the Second Defendant
from accepting, registering or endorsing and or approving any
document including the meeting minutes and or resolutions passed on
the 16 July 2020 at New Century Hotel in Kiunga, Westem Province,
that certified the Kamula Doso Project Area, Blocks 1, 2 and 3 as a
Forest Management Area (FMA) by the Westem Provincial Forest
Management Committee until further Orders of this Court.”
24. Also, on 08 December 2020, the plaintiffs file a notice of motion seeking
amongst others an urgent interim injunctive order in the following terms:
“An interim Injunctive Order restraining the PNG Forest Authority, the
Forestry Board, its servants and agents and whosoever from registering,
recognizing, endorsing and or certifying the meeting minutes and resolution
of the Provincial Forest Management Committee of 16 July 2020,
particularly on Agenda #06 — Certification of Kamula Doso (Block 1, 2 &
3), until further orders of this Court.”
25. That motion and the proceedings were served on the defendants on 10
December 2020. This is confirmed by the affidavit of service by the first plaintiff,
Wisa Susupie sworn on 11 and filed on 17 February 2021, document number 5 on
the Court file.
26. On 10 March 2021, the motion came before me for hearing. I heard and
granted the application for interim restraining orders together with other additional
orders. Included in the order was first an order dispensing with the requirements
for service for two main reasons. Firstly, although there was an indication of
service of the proceedings and the motion on the defendants, there was no affidavit
of service filed at that point confirming service. Secondly, the matter urgently
required such orders for the protection of parts of the country and the world’s
remaining rainforest which stood the risk of permanent irreparable harm or damage
by the decision that was sought to be set aside. This was necessitated by the need
for urgent protective action consistent with international environmental rule of law
principles. In that context, I also made the following orders:
“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.”
27. On 22 June 2021, the 10 March Orders returned. By then the defendants had
not complied with the orders and failed to appear in Court, despite being served
with the proceedings and the motion on 10 December 2020. The Court therefore
made the following orders:
1. This matter is adjourned to 29/06/2021 at 15:30pm on account of the
Defendants failure to appear in Court and for their apparent
noncompliance of the Courts previous orders.
2. The orders of 10/03/2021 are extended for full compliance, especially
by the Defendants.
3. The Defendants are required to appear in Court on the next adjourned
date ready to assist the Court in its efforts to have this matter completed
expeditiously, failing which bench warrants will be issue for their arrest
and remanded pending a hearing and determination of contempt
proceedings that will be issued on the same date.
4. ...
5. Further to the consequences that will follow under term 3 of these
orders for any further noncompliance by the defendants, the Court will
proceed to hear the Plaintiff and if a case is made out, grant the reliefs
sought or such other reliefs the Court considers appropriate.”
28. The matter next went before the Court on 14th July 2022 when the
proceeding was again 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... 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.”
29. As could be gathered from the above, I had earlier 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 accounted
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 and the
Environment Act 2000 as amended. Those orders were given rise to by the global
pressing need to preserve and maintain what is remaining of both the world and
our country’s rainforests. The orders in question were first made in OS No. 09 of
2020 – Robin Kami & Ors v. Asset Meriah PNG limited, Umboi Timber Investment
Limited & PNGFA & Ors on 07 and 08 June 2021, which are reproduced at [39] in
my published judgment in the matter of Mayur Renewables Limited v. The Hon.
Solan Mirisim & Ors (2024) N10649.
30. The orders relevantly read:
“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 practice: 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.”
31. By the time this proceeding came before me on 10 March 2021, the PNGFA
and the other authorities included in the earlier orders, failed to appear and failed to
comply with the first set of orders and those made under the earlier proceedings
under OS No. 09 of 2020. I thus made orders set out in the foregoing which were
like the ones I had made in the earlier proceedings. The application by the PNGFA
is only focused on setting aside the 10 March Orders and not the orders that
subsequently extended and strengthened those orders.
Relevant facts
32. The relevant facts giving rise to this proceeding and the issuance of the 10
March Orders are not the subject of any serious contest except only as to
organising and holding of the meeting, the subject of this proceeding. The first
plaintiff, Mr. Wisa Susupie (Mr. Susupie) is the chairman of the second plaintiff,
Tumu Timbers Development Limited (Tumu Timbers). Tumu Timbers is owned by
customary landowners of the Kamula Doso Forest area, blocks 1, 2 and 3 in the
Western Province. The landowners are corporatised through 52 incorporated land
groups (ILGs). The landowners are the shareholders of Tumu Timbers through
their 52 ILGs. Tumu Timbers was incorporated as a vehicle through which the
landowners could participate in the development of their forest and other
agricultural resources. In his capacity as Chairman of the Board of Directors of
Tumu Timbers and representative of the 52 landowning clans per the 52 ILGs, Mr.
Susupie is a member of the Western Province, Provincial Forest Management
Committee (PFMC).
33. The PFMC is a six-member committee established under the Forestry Act
1991. Its membership comprises of a senior officer in the Western Province,
nominated by the Provincial Government who is to be the chairman, an officer of
the National Forest Service nominated by the Managing Director of PNGFA,
presidents of the Local Level Governments situated within areas of the province
which contain forest resources who is to be the president nominated by the
Provincial Executive Committee, two persons representing landowning groups in
the province nominated by the Provincial Forest Management Committee, and one
person representing the non-governmental organisation dealing with environmental
or social issues nominated by the National Alliance of Non-Governmental
Organisations.
34. A meeting of the Western Provincial PFMC took place on 14 – 15 July 2020.
Only five members out of a total of six members attended. The plaintiffs claim
most of the previous meetings of the PFMC always had only five people attending.
On all these occasions the President of the relevant LLG who is a critical member
of the PFMC was absent and no one had represented him at the meetings.
35. According to Mr. Susupie, he was informed that a PFMC meeting was to be
held on the 14 - 15 of July 2020. He therefore flew to Kiunga to attend the
meeting. The meeting did commence on Monday 14 July 2020. Present and
participating in the meeting were the following:
1. Rupert Tabua - Chairman
2. John Mark Karlo - Provincial Forest Officer, Western Province
3. Jim Menge - Acting Area Manager (PNGFA), Southern Region
4. Wisa Susupie - Committee Member, Middle Fly District Landowners
Rep
5. Max Saiya - Alternate Member, Middle Fly District Landowners Rep
6. Waiti Kwani - Committee Member, North Fly District Landowners
Rep
7. Frank Hamesu -Alternate Member, North Fly District Landowners Rep
8. Elizaberth Matit - NGO Rep
9. Nemo Joel Bunn- Alternate NGO Rep
36. Further, according to Mr Susupie, he noticed amongst the landowners’
representative leaderships that they were representing the interests of different and
conflicting developers.
37. One of the items included in the agenda for the meeting was the Certification
of the Kamula Doso Blocks 1 - 3 Forest Management Area (FMA). That agenda
item was mentioned and put on hold until further notice. Minutes of the meeting,
which is annexure “A” to the affidavit of Mr. Susupie confirms the decisions and
resolutions arrived at in the said meeting. The decision to put on hold a
certification of the Kamula Doso Blocks 1 – 3, came about because of a letter from
a lawyer to the chairman of the PFMC requesting the chairman to put on hold the
relevant agenda for reasons only known to the chairman and the lawyer. That
decision was made around 3:30 on 15 July 2020. On the morning of 16 July 2020,
the meetings resolution for the Kamula Doso Certification of FMA was read out. It
was again confirmed that a resolution was passed to put that agenda on hold due to
landowner issues or problems. Thereafter around 10:00am on the same day Mr.
Susupie was excused and taken to the airport from where he took a flight to Port
Moresby, together with his Alternate Rep, Max Saiya from the Middle Fly District.
Together with him on the fight was Mr. Jim Menge, the Acting Area Manager
PNGFA, Southern Region representing the National Forest Authority.
38. The next day, 17 July 2020, Mr. Susupie learned with surprise from a phone
call from a Abilie Wape that the Kamula Doso Certification of FMA agenda was
dealt with in his and his alternate members’ absence. It seems the meeting was
recalled and conducted after Mr Susupie, his alternate member and Mr. Jim Menge,
the Acting Area Manager PNGFA, Southern Region representing the National
Forest Authority, had left and without any notice to them of the recall of the
meeting and dealing with of the agenda. The meeting that proceeded in these
members’ absence and a resolution to endorsed Kamula Doso Project as a Forest
Management Area was passed.
39. Mr. Susupie deposes in his affidavit that the resolution to put on hold the
agenda on certification of Kamula Doso as an FMA and having him and his
alternate excused from the meeting was deliberate to get them out of the meeting
and any consideration of the agenda with them participating knowing that they
were opposed to the proposed certification. He further deposes that the certification
of Kamula Doso as an FMA was unlawful, improper and not correct as he and in
his absence, his alternate as the representative of the landowners of the relevant project area and District were not present and did not participate in the deliberations that led to the relevant resolution. 40. Further, Mr. Susupie deposes that he is aware that the PFMC must get written consent from 75 % of the landowners approving any endorsement of any FMA. This was not secured. He goes on to depose that he represents 52 Incorporated Land Groups of Kamula Doso Blocks, 1 - 3 project area and he is the chairman of landowners’ company, Tumu Timbers was not given the opportunity to present their objection to the certification and before that, debate the agenda before a final decision could be arrived at. The recall of the agenda and proceeding to certify the Kamula Doso Blocks, 1- 3 in his and his alternate memberships absence was a denial of their and their peoples’ right to be heard. 41. Finally, Mr Susupie deposes that, on the 22 November 2012, the 52 ILGs he represents entered into a memorandum of agreement with a developer, Sky Resources Limited, at Awaba and Wawoi Falls. The said company was to conduct logging and agricultural projects in the Kamula Doso Project area. That agreement is current and binding. A copy of the agreement is annexure “B” to his affidavit. 42. The PNGFA denies the plaintiffs’ claims and claims on its part, the plaintiff’s claims are false, misleading and baseless. Based on those claims, the PNGFA argues for a grant of its application for a set aside of the 10 March Orders. To support its claims, the PNGFA relies upon three affidavits by John Mosoro, its managing director. The affidavits are the ones respectively filed on 06 May 2022, document number 15, 11 July 2022, document number 19 and 27 October 2022, document number not clear. The PNGFA also relies upon the affidavit of the Acting Managing Director of Climate Change and Development Authority (CCDA), Mr. William Lakain, filed on 27 October 2022, document number 28. The claims by PNGFA are not based on any evidence from any member of the PFMC having any personal knowledge and participation in any of the meetings which directly addresses and rebuts the plaintiff’s evidence, which formed the basis for the interim orders and the proceedings. 43. The evidence filed by or for the PNGFA claim without any evidence of the PNGFA of the CCDA and the other State authorities having fully complied with the orders make in these and the earlier proceedings, under OS No. 09 of 2020. Hence, the orders made in the earlier proceedings and the 10 March Orders made in this proceeding and the earlier proceeding remain to be complied with. 44. The claim of the proceeding and the orders not being served can easily be
determined by reference to the evidence on point. The affidavit of service by Mr.
Susupie, document number 5, as I already referred to earlier confirms the
proceedings were served on the defendants on 10 December 2020. Additionally, in
his affidavit sworn on 11 July 2022, at paragraph 3, Mr. John Mosoro, the
Managing Director of the PNGFA deposes to being aware of this proceeding and
the orders sought to be set aside and gets into claims of having complied with the
orders of the Court. He says nothing about when and how he has become aware of
the proceedings and the orders. Most importantly, the PNGFA filed its
unconditional notice of intention to defend on 10 March 2021, the same day the
orders sought to set aside were made. If service was a real issue, that notice should
have been filed as a conditional notice. The filing of the unconditional notice of
intention to defend put to rest any issue on service of the proceedings and the
motion leading to the 10 March Orders. The PNGFA makes no mention of the
affidavit of service and the filing of its unconditional notice of intention to defend.
The sworn testimony on the issue of service is to be preferred to the mere claims
by PNGFA. For these reasons, the claim by PNGFA of not been served as a
ground for the application is without any merit or basis and is dismissed.
45. This leads us to consider additional submissions made by learned Counsel
for the PNGFA. For these submissions, reliance is placed on O12, r8(3)(a) of the
NCR and the decision in Kittika v. Kavana (2010) N4051. In the case cited, Makail
J held a party applying for a set aside of an ex parte order must establish the
following:
(1) Why was the order allowed to be entered in the absence of the other
party.
(2) If there is a delay in making the application, there is a reasonable
explanation for the delay.
(3) There is an arguable case.
46. However, there are several decisions of the Supreme Court on the
application of the provisions of O12, r 8 (3) (a). Counsel for the PNGFA has,
however, failed to cite any one of them. One of the decisions on point is the
decision of the Supreme Court in Barry v. Luma (2017) SC1639. That decision
cited with approval one of my decisions in the National Court on point, namely my
decision in Harry Tovon v. Carl Malpo (2016) N6240. The Supreme Court
decision. in Barry v. Luma (supra) considered fully the provisions of Order 12,
Rule 8. The Court then went on to state what the whole provision of Order 12, r. 8
means in the following terms:
“It is clear from a reading of the whole of the provisions of Rule 8 that there
is general power, albeit discretionary, vested in the National Court to set
aside or vary a direction for entry of judgment or order. It is, however, also
important to note that such power can be exercised only when an application
(notice of motion) is filed “before entry of judgment” but this requirement
may be dispensed with in appropriate circumstances under Order 1 Rule 7.
Where the relief under Order 1 Rule 7 is not sought and or granted, there is
no power to be exercised.
(Underlining
supplied)
47. Another decision of the Supreme Court is the 5-member Supreme Court
decision in Lady Ni Cragnolini v. Teddy Taison & Anor (2023) SC2464. That
decision with respect did not give any consideration at all to the fact that a notice
of motion seeking to set aside an earlier order under O.12, r. 8 (1) needs to be filed
prior to and not after the entry of the judgment or order sought to be set aside.
That is also a requirement that must be met under O12, r. 8 (1) and (3) (b) by a
party seeking to set aside an earlier ex parte order or judgment, or a default
judgment or a judgment for possession of land must meet.
48. In a subsequent decision of the Supreme Court in Kalgregos Electrical
Limited v. Mamun Investments Limited & Ors (2024) SC2655, the Court reinforced
the position taken by the decision in Barry v. Luma (supra) in these terms at [27]:
“On our part, we note as did the Court in Barry v. Luma (supra) that Order
12, r. 8 need to be read as a whole. Here is why. The provision provides for
the setting aside or varying of a judgment or order and nothing more or
different. Subrule (1) grants that power to the Court, provided the
application for a set aside is filed prior to and not after the entry of the
judgment or order sought to be set aside.”
(Underlining
supplied)
49. Ultimately, after considering the decision in Barry v. Luma (supra) and Lady
Ni Cragnolini v. Teddy Taison & Anor (supra), the Court in Kalgregos Electrical
Limited v. Mamun Investments Limited & Ors (supra) concluded at [31]:
“Based on the foregoing, we are respectfully of the view that, anyone
applying in the National Court for a set aside of an earlier order that
dismissed a proceeding or determined part of a proceeding or a question
arising in the proceeding would be irregular and incompetent. Additionally,
filing such an application after the entry of the judgment or order sought to
be set aside without any dispensation or leave of the Court under Order 1, r.
7, would add to the application being irregularity and incompetent.
(Underlining
supplied)
50. Applying the law as discussed above to the present case, I note, the orders
sought to be set aside were entered on 31 March 2021. The application for set aside
of those orders was filed well after the order in question and some of the orders
made subsequently after those of 10 March 2021 were also entered. The applicant
PNGFA, has neither applied for leave under O1, r7 of the NCR, nor does his
learned Counsel make any submission on this point. The application is clearly
incompetent for being filed out of time and being pursued without first seeking and
obtaining the Court’s leave. This forms a strong foundation for a dismissal of the
application.
51. For completeness however, I will address other issues raised by the applicant
per the criteria outlined by Makail J, in his decision in Kittika v. Kavana (supra).
The criteria once again are:
(1) Why the order was allowed to be entered in the absence of the other
party.
(2) If there is a delay in making the application to set aside, a reasonable
explanation for the delay.
(3) There is an arguable case.
52. Relevantly, the question then is, has, the applicant met all these criteria to
succeed in its application. The relevant question for each of the criteria are:
(1) Has PNGFA provided a reasonable explanation for allowing the orders
sought to be set aside to be entered in its absence?
(2) Has there been a delay in making of the application to set aside, and if
yes, has the PNGFA provided any reasonable explanation for the
delay? and
(3) Has PNGFA disclosed an arguable case?
Reasonable explanation for orders to be made ex pate
53. The orders sought to be set aside came about after service of the proceedings
on the defendants. Additionally, and in any case the Court dispensed with strict
compliance of the requirements for service given the urgency of the matter in the
absence then of an affidavit of service. Orders made after the orders sought to be set aside were made, extended and reinforced the orders sought to be set aside. I already dismissed the applicant’s only argument of not being served. That dismissal was based on the evidence of service on the defendants and the PNGFA filing its unconditional notice of intention to defend. The PNGFA offered no explanation for failing to appear in Court when the 10 March Orders were first made. Its nonappearance continued for some time and on each occasion, there were adjournments and extensions of the orders. No explanation other than not being served, has been offered for these failures. Further, PNGFA fails to address the fact of the Court dispensing the strict requirements for service of the proceeding and the relevant motion prior to a hearing of the motion and a grant of the orders. Given all these, I answer the first question in the negative. Delay and Explanation 54. Turning to the second question, the orders were initially made 10 March 2021. Those orders were subsequently extended. The application for set aside of these orders was filed more than a year later and after their respective entries. No leave has been sought and granted for the applicant to proceed with its application after the entry of the orders. Only two reasons are advanced for the delay. The first is PNGFA claim of not being served with the proceeding, a claim I dismissed for the reasons given. The other is the claim the Covid-19 pandemic prevented it from filing it earlier. The claim is that the pandemic cripple many people including them, without any specific evidence on how the applicant was restricted or restrained it from functioning. Contrary to this submission, many businesses and offices including the Courts were functioning under government mandated safety measures. The affidavit of service reveals service of the proceedings and notice of motion leading to the 10 March Orders at the headquarters of PNGFA, which suggestions the PNGFA was open for business during the pandemic period. In these circumstances, I find the claim of Covid-19 contributed to the PNGFA’s lengthy delay in filing its application for set aside promptly is without merit and cannot be sustained. These leaves the PNGFA with no reasonable explanation for failing to file its application promptly before the entry of the orders and or soon after the entry of the 10 March Orders and for its lengthy delay in eventually filing the application on 06 May 2022. Hence, the second question is answered in the negative. An arguable case
55. This leads us to the last remaining question. Submissions for PNGFA claim
the quorum requirements for the PFMC were met, Mr Susupie does not represent
the landowning clans and ILGs and had a conflict of interest. These are matters
which require evidence directly on point from the sources directly to support them.
No such evidence has been filed, served and is relied upon in support of these
claims. The only evidence on point are the affidavits deposed to by Mr Mosoro,
which contains submissions and claims only.
56. The question of whether PNGFA has presented an arguable case, requires a
consideration of the basis for the plaintiffs’ claims and the defendants claims
against those claims as well as the reasons for the grant of the orders now sought to
be set aside. In this context it is also necessary to consider the basis for this, which
is a case that concerns a large rain forest area, as the affidavit evidence filed in this
proceeding and the formal judgment in Mayur Renewables Limited v. The Hon.
Solan Mirisim & Ors (supra) disclose. Term 5 of the final orders made in Mayur
Renewables Limited v. The Hon. Solan Mirisim & Ors made specific orders against
the PNGFA and the CCDA in the following terms:
“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.”
57. No evidence has been adduced by the PNGFA going into what has become
of these orders. Have they been appealed against? If yes, were they set aside or
quashed? If the orders have not been set aside or quashed by the Supreme Court or
the National Court, have the CCDA and PNGFA fully complied with the orders of
the Court? The duty was upon the applicant to adduce evidence clearly and
unequivocally answering each of these questions. This, it has failed to do.
58. One of the main reasons underpinning the orders sought to be set aside, was
the issue of climate change which is posing an existential threat for humanity
worldwide including Papua New Guinea and hence an emergency the whole of
humanity must address and deal with deliberately and precisely. One of the
considered measures is to stop deforestation with the economies dependant on
logging to go into projects such as carbon trading to preserve the little of what is
left globally of rainforests which is critical needed for maintaining biodiversity to
sustain human life. My decisions in Mayur Renewables Limited v. The Hon. Solan
Mirisim & Ors (supra) and before that, in Saonu & Ors v. Mori & Ors (2021)
N9170, highlight this point.
43. 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.”
44. I had regard to the authoritative statement on the issue made by the United
Nations Environment Programme or UNEP and the recommendations such
authorities were making. I also noted my decision in Kula Oil Palm Ltd v. Tieba
(2021) N9559, where I commented on how much deforestation contributes to the
emergency at [22] and [23]. I also noted at [24] there being no debate that “...
human activities since the beginning of the Industrial Revolution (around 1750)
have increased the atmospheric concentration of carbon dioxide. In that context, I
further noted at [25] that, science was also clear and not in dispute that
“deforestation in tropical rainforests adds more carbon dioxide to the atmosphere
than the sum total of cars and trucks on the world’s roads.
45. In that context, I noted at [119] in Mayur Renewables Limited v. The Hon.
Solan Mirisim & Ors (supra):
“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.”
46. Additionally, at [121] in Mayur Renewables Limited v. The Hon. Solan
Mirisim & Ors (supra) I noted the international development of a whole body of
law under the broad heading of Environmental Rule of Law with 5 broad principles
namely:
“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).”
47. The orders that are now sought to be set aside in this case, effectively
applied these internationally accepted principles for the protection of what is left in
our remaining rainforests. The orders are a repeat of other orders formally made
and are in place against the applicant and the CCDA. Additionally, the applicant,
PNGFA the authority responsible for our rain forests, who was a party to some of
the earlier proceedings and specific orders that were made against it and the
CCDA, fails to make any mention of the other proceedings and orders made in
those proceedings, what specific steps it has and will be taking in compliance with
the orders and meaningfully address the Climate Change emergency and what
steps it will be taking for our country to preserve its remaining rainforests. Instead
of taking such protective measures, PNGFA is more focused on promoting
deforestation of our rainforest through logging permits despite clear existing orders
against such action. The position taken by the PNGFA is also contrary to the
landowners’ wish to go into carbon trade and not logging. They have already
entered into a contract with Mayur Renewable Limited for that purpose. This is
confirmed by the affidavits of Mr Susupie sworn on 27 October 2022 and filed on
23 November 2022, document number 33 as well as the affidavit of Paul Mulder
sworn on 30 August 2022. Further and more seriously, the actions of the applicant
are contemptuous of the repeated Court orders that remain to be fully complied
with by the PNGFA and the CCDA. Furthermore, as already noted, the 10 March
Orders were subsequently extended and affirmed by several subsequent orders.
The application does not also seek to set aside the subsequent orders. In these
circumstances, I find PNGFA has presented no arguable case or at all a case for a
set aside only of the 10 March Orders.
48. The result of these considerations is that the applicant, the PNGFA has failed
to make a case for the Court to set aside the orders sought to be set aside. Instead,
the climate change emergency and the orders in this case and orders in similar
terms already made by this Court in OS No. 09 of 2020, which are still in existence
and are pending compliance by the applicant, PNGFA and the CCDA, warrant a
reaffirmation of the orders sought to be set aside and warrant an order for PNGFA
to immediately comply with all the orders it has failed to comply to date.
Final Orders
49. Accordingly, I make the following formal orders:
1. The application by the Second Defendants, the PNGFA seeking to set
aside this Courts orders of 10 March 2021 is dismissed.
2. Costs of and incidental to the application are ordered against the
Second Defendants, the PNGFA, to be taxed if not agreed.
3. The Second Defendant, the PNGFA and the CCDA are required to
fully comply with the orders made by this Court in these proceedings
as well as those made OS No. 09 of 2020 by 30 April 2025.
4. This and the proceedings referred to in term 3 of these orders are
listed to return before the this Court on 14 May 2025 at 1:30pm for
the PNGFA and the CCDA through their respective managing
directors, Mr John Mosoro and Ms Debra Sungi to appear in Court
and fully account for their compliance of the orders made in this and
the other proceedings with evidence of their having fully complied
with the various orders this Court has made to date.
5. Failing any compliance with term 3 and 4 of these orders, the Court
will issue bench warrants for the arrest of the respective managing
directors of the PNGFA and CCDA and anyone else responsible for
the noncompliance of the relevant orders and for the said persons to be
dealt with for contempt of Court.
6. Time for the entry of these orders is abridged to take place forthwith
upon the Court signing them.
59. Judgment and orders accordingly.
______________________________________________________________
Lawyers for the first and second plaintiffs: McGregor & Associates Lawyers
Lawyers for the second defendants: Namani & Associates Lawyers
