Appeal to drop mediation rejected
DEPUTY Chief Justice Ambeng Kandakasi has dismissed applications by the Mineral Resource Authority (MRA) and Mineral Resource Enga (MRE) seeking a revocation of a mediation ordered between the State and Barrick Niugini Ltd (BNL).
The mediation was ordered in a judicial review proceeding filed by BNL against the State for refusing to extend its special mining lease (SML).
On July 21, Justice Kandakasi made orders in court for the parties to explore a resolution of issues in mediation.
On July 27, the defendants filed three motions seeking a revocation of the mediation orders as they claimed a change in circumstances.
MRA and MRE claimed that there were issues that warranted judicial determination and there was the non-availability of a mediator at the fixed time of the mediation.
Both authorities asked the court to consider; whether expiry of the SML was consistent with the Mining Development Contract signed in 1989; and, whether the miner had the right of renewal as its (BNL) claim of that right relied on a previous National Court ruling.
They further asked the court to consider whether the proceeding was competent when BNL had not gained the support or endorsement of parties in the Porgera Joint Venture (PJV); and, could BNL maintain the proceedings in National Court when it had already filed a reconciliation in International Centre for Settlement of Investment Disputes (ICSD) in the United States.
However, Kandakasi dismissed the applications after he upheld submissions by BNL’s lawyer Derek Wood, of Arhurst lawyers, who argued that issues raised by the defendants were not new arguments.
BNL responded that ICSD proceedings commenced under a separate contractual agreement.
Justice Kandakasi ordered that matter would proceed to trial next week with mediation dates to be fixed afterwards.
In the meantime, BNL has filed an appeal in the Supreme Court to appeal the National Court’s decision on discovery of documents and a notice of motion on amendment to its substantive review motion.
The miner has also filed a leave application in Supreme Court to stay the National Court proceedings.
6 comments
While courts have their respectful judgements, one question yet to make commercial sense is the fact that their (BNL) lease contract expired, hence, the ultimate power now rests on the leaser (Govt).
Maybe, state lawyers are making wrong arguments
Can BNL leave PNG already?
Kandakasi should allow the parties to debate in court. he should not be forcing the parties to a mediation which he has a record of many failed mediations.
The National Court has no jurisdiction for mediation except the Village Court. This is not right something is wrong maybe conflict of interest??
Mediation orders from the National Court? Something is out of order here and smells fishy.
Barrick playing games with the rights of the people and Government of PNG.
1 Ignoring: The United Nations’ Declaration on the Rights of Indigenous Peoples 2007
. “Emphasizes the rights of Indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations. It “prohibits discrimination against indigenous peoples”, and it “promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development”
2 The miner has also filed a leave application in Supreme Court to stay the National Court proceedings.
3 In the meantime, BNL has filed an appeal in the Supreme Court to appeal the National Court’s decision on discovery of documents and a notice of motion on amendment to its substantive review motion.
4 Barrick has commenced legal proceeding at ICSD under a separate contractual agreement.
5 While appearing to want justice Barrick is allowing 3rd parties to remove vital equipment from the mine site.
6 Billions of people now that when their contract ends there is NO longer a contract.
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