Post Courier, 19 March 2012
A SUPREME Court decision favouring a Boera land group has paved the way forward for aggrieved landowner parties contesting the LNG development at Papa Lealea.
A three-man Supreme Court bench ruled last week to cancel a National Court order of October 2009 be quashed and replaced with a new order granting them a judicial review at the National Court over the acquisition of their sea and seabed area for the LNG project.
The National Court decided in October 2009 to grant leave for judicial review of Behind Compulsory Acquisition of Traditional Sea and Seabed Area between the State and the landowners from Boera village in the West Hiri area of Central Province.
This was the order that has been cancelled by the Supreme Court and replaced with a new order. The new order keeps the decision to grant leave but restricts the grounds of judicial review and the relief sought so that they fall within the National Court’s jurisdiction. A three-judge Supreme Court bench announced its decision last week (March 9) in a 22-page judgment.
The four respondents in the appeal are citizen companies and individuals from Boera had successfully sought leave to review a declaration made pursuant to Section 5 of the Land Act; a decision largely responsible for alienating over 1200 hectares of traditional sea and seabed area.
In response the two appellants, Pepi Kimas (as Delegate of the Minister for Lands) and the State, took out a stay order in April 2010 and appealed to the Supreme Court.
Lawyer Peter Donigi of Warner Shand Lawyers, counsel for the respondents said in that appeal, they raised 19 grounds arguing that the National Court judge had erred in granting leave to Boera Development Corporation Ltd, Apau Besena Company Ltd, Igo Namona, and Oala Moi. However, the Supreme Court accepted only 6 of the appellants’ grounds of appeal and included these in its court order.
The four respondents, who are also the plaintiffs in the judicial review case, will now proceed with their judicial review proceeding at the National Court.
Mr Donigi said their argument is grounded on their lease-leaseback (LLB) application which was submitted to the Department of Lands and Physical Planning one day after the making of the Section 5 declaration.
“The LLB application was made to register over 27,000 hectares of the traditional sea and seabed area situated between Boera and neighbouring Papa village".
“The area covered by the LLB application also encloses 1200-plus hectares of sea and seabed. It is the 1200-plus hectares of sea and seabed area that was declared by the Minister’s delegate not to be customary land.
“Apparently this declaration led to its portioning into Portions 2457C and 2458C, and which have been used to construct the PNG LNG causeway and jetty,” he said. Portions 2457C and 2458C are situated next to Portion 2456C where the gas plant is being built. Portion 2456C was portioned out of the former Portion 152. The balance of former Portion 152 became Portion 2459C. Portions 2456C, 2457C, and 2458C were granted as state leases to Esso Highlands Ltd in 2009.
Meanwhile, the plaintiff group for the judicial review case is expected to grow as a result of the Supreme Court decision.
There are villagers from Boera, Lealea, and Porebada that had made separate attempts in the past to join.
Their attempts were not entertained at the time because of the stay order and Supreme Court appeal which has now been decided in favour of Boera Development Corporation Ltd, Apau Besena Company Ltd, Igo Namona, and Oala Moi.