MOU was signed “when the constitutional process had not been fully exhausted and, therefore, not only premature but also a clear breach of the Mining Act and the Constitution”.
Jimmy Kalebe | The National aka The Loggers Times | May 10, 2019
A COURT has put on hold operations of the K9 billion Wafi-Golpu copper-gold mining project in Morobe pending a review of a deal signed between the Government and developers.
Morobe Governor Ginson Saonu took the matter to court challenging the legality of the signing of the memorandum of understanding last December between the Government and Newcrest Mining Limited and Harmony Gold.
Saonu on behalf of the Morobe government claimed that the signing of the memorandum was done without proper consultation with, and input from, the provincial government and other stakeholders.
The memorandum was signed on Dec 11 following a clearance letter from State Solicitor Daniel Rolpagarea.
National Court acting judge Justice John Numapo ruled that the stay order also applied to any representation by Saonu or the parties who signed the memorandum regarding the project, including any meetings or consultations.
Saonu and the provincial government had asked the court to review the letter constituting the legal clearance issued by Rolpagarea for the execution of the memorandum.
Lawyer Paul Mawa, representing the State, asked the court to refuse the leave for review because the application was premature, misconceived and defective.
He argued that it was not supported by any clear and tangible evidence.
He said the legal clearance purportedly issued by Rolpagarea was not the decision of a public body or authority and therefore could not be reviewed.
But Justice Numapo stated that Rolpagarea was public office holder and what he did fell under a public body or authority which was subjected to review.
Justice Numapo dismissed the claims by Mawa and ruled that the issues raised by the plaintiffs were prima facie as they contained substantive issues of law.
He said the issuing of the letter to clear the memorandum for signing was done when the constitutional process had not been fully exhausted and, therefore, not only premature but also a clear breach of the Mining Act and the Constitution.
He said the second issue related to the terms of the memorandum was that the Morobe government wanted to benefit fully from the project.
Saonu and the Morobe government had wanted half of the 30 per cent State equity to be awarded to the Morobe government. Justice Numapo said this was not accommodated in the memorandum.
He also highlighted the fourth goal of the national goals and directive principles enshrined in the Constitution which called for collective benefits and equal distribution of natural resources and environment for all citizens.
The case will return for a directions hearing on May 24 at the National Court in Lae.