Kimas decision to be reviewed in court

National, Normal


THE National Court granted leave for judicial review of a decision by the Lands and Physical Planning Secretary to compulsorily acquire a piece of land outside Port Moresby, known as Portion 2485, that is required by the PNG LNG project.
Justice Les Gavara-Nanu granted the leave on Tuesday.
Lawyer Peter Donigi, of Warner Shand Lawyers, believes Portion 2458 is the offshore area at Boera Village adjacent to the LNG project site.
It appears that the State now wants to compulsorily get this portion of land so it can grant an underwater lease to the LNG operator for its offshore operations.
It might include the LNG export pipeline.
“Our clients have applied for that area because they wanted to set up fishing operations and other potential eco-tourism projects in the area,” Mr Donigi said.
Judge Gavara-Nanu on Tuesday granted leave for judicial review of the decision by Pepi Kimas, secretary for Lands and Physical Planning.
Mr Kimas, in his capacity as delegate of the Minister for Lands and Physical Planning published a section 5 notice in respect to portion 2458.
Section 5 of the Land Act (1996) states that the minister may, using notice in the National Gazette, declare that any land that appears to him not to be customary land shall be State land.
This may happen “unless good cause is shown to the contrary” within three months of the notice.
According to Mr Donigi, the section 5 notice is a prelude to compulsory acquisition of customary land by the State.
Mr Donigi, representing the landowners is seeking for the declaration of section 5 of Land Act as illegal, apart from others as pointed out in Court proceedings (OS 485 of 2009).
If positive, the result will be that the State cannot compulsorily obtain customary land in future. 
Mr Donigi applied to the Minister for Lands and Physical Planning for a State Lease to be issued to his clients under Sections 11 and 102 of the Land Act, last March. 
A month later Mr Kimas, without notice to Mr Donigi, published a section 5 notice declaring Portion 2458 as State land, if there are no claims.
Under section 5, if there are landowner claimants then the ownership will be decided by a Land Titles Commission (LTC).
But it is understood there is no dispute between landowners, as such, Mr Donigi is certain there is no need for a LTC hearing.
 “Section 5 is unconstitutional and its validity must be tested even before a LTC is convened,” he said. 
If this is so, then the LTC will have no power to entertain this matter.
Mr Donigi said that legality issue of section 5 could be avoided if his client’s application was processed accordingly.
He said there was no need for the State to acquire customary land for lease to the LNG Project operators. 
Under sections 11 and 102 of the Land Act, the landowners on issue of a State lease, can issue the same portion of land directly to the LNG Project operators.