COMMISSION OF INQUIRY INTO SABL

Transcription

1 TRANSCRIPT OF PROCEEDINGS Commission of Inquiry into SABL Department of Prime Minister & NEC P O Box 639 WAIGANI. NCD Papua New Guinea Telephone: (675) Facsimile : (675) COMMISSION OF INQUIRY INTO SABL MR JOHN NUMAPO MR ALOIS JEREWAI MR NICHOLAS MIROU CHIEF COMMISSIONER & CHAIRMAN COMMISSIONER COMMISSIONER TOP FLOOR, MURUK HAUS, WAIGANI, FRIDAY 21 OCTOBER 11 AT P.M. (Continued from Thursday 17 October 11) SABL35 21//11 1

2 THE CHAIRMAN: Counsel, sitting for this morning will be brief and it will be specifically on the adoption of the Rules for this Commission of Inquiry into the operations of the Special Agriculture and Business Leases as required under Section 5 of the Commission of Inquiry Act that we are required to develop our own Rules and Procedures to guide the Inquiry. So this is the purpose of our sitting this morning to formally to adopt those Rules and also to have it on record. I will now invite Commissioner Jerewai to formally announce the Rules for the purpose of this Inquiry and also for formal adoption. Commissioner Jerewai. COMMISSIONER JEREWAI: Thank you Chief Commissioner Numapo, Counsel Assisting Mr Ketan and Senior Counsel, Mr Tusais, Chief Commissioner and brother Commissioner Mirou. The Chief Commissioner is of the view and it has been agreed by all three Commissioners that the Rules be formally announced and recorded to be adopted as of today, this date, and so I will quickly go through the Rules and then the Chief Commissioner can announce the formal adoption. The Rules of the Commission of Inquiry into the issue of an operation Special Agriculture and Business Leases (SABLs). Being Rules providing for procedures adopted by the Commission of Inquiry into the issuance of and operation of Special Agriculture and Business Leases pursuant to the powers enabling under section 5 of the Commission of Inquiry Act These Rules are to be adopted as of today, 21 st day of October, 11, but with retrospective effect as from the 21 st of July, 11. First part, Interpretation. In this Rules, unless the contrary intention appears and Rules if otherwise provided for in the Act, the following words and expressions shall have meaning and effect as follows: CA means the Lawyer or Counsel Assisting the COI which is the abbreviation for Commission of Inquiry; SABL35 21//11 2

3 Chief Commissioner means the Chief Commissioner of the COI; COI has the same meaning as Commission ; Commissioner means a Commissioner other than the Chief Commissioner constituting the COI; Commission means Commission of Inquiry into Special Agriculture and Business Leases granted pursuant to Section 11 and Section 2 of the Land Act 1996; Counsel means any other lawyer or counsel assisting the Counsel Assisting; DAL means the Department of Agriculture and Livestock; DEC means the Department of Environment and Conservation; DLPP means the Department of Lands and Physical Planning; evidence include sworn affidavits; statutory declarations; sworn oral evidence; documents tendered formally during the Inquiry and forming exhibits as evidence before the Inquiry; NFS means the National Forest Service of the Papua New Guinea Forest Authority abbreviated PNGFA; Inquiry means the proceedings of the COI including proceedings presided over by a single Commissioner or Chief Commissioner alone; On-location hearing means conduct of the Inquiry anywhere in Papua New Guinea nearest to the SABL being inquired into; PNG means Papua New Guinea; PNGFA means the Papua New Guinea Forest Authority; SABL means Special Agriculture and Business Lease; Secretary means the Secretary of the COI; Site Visit means a physical or electronic visit by the COI on the SABL being inquired into; TA means a Technical Advisor assisting the COI; TOR means the Terms of Reference of the COI; SABL35 21//11 3

4 SPABL means Special Purpose Agriculture and Business Lease; the Act means the Commission of Inquiry Act Purpose and Effect of the Rules (1) These Rules are divided into sections and sub-sections in numbers. So I will refer to the Rules as sections from here-on. (2) These Rules are adopted to provide guidance in the conduct of the Inquiry and are to be followed to the greatest extent possible but any detraction from or omission to observe any of these Rules shall not render a proceeding of the Inquiry ineffective, voidable or of no force or effect. (3) These Rules shall remain in force for the term of the COI or any extension thereof and shall lapse at the final expiry of the term of the COI. (4) Where any of these Rules conflict with any provisions of the Act the provisions of the Act shall prevail. 2. Places of Inquiry (1) The COI may conduct its Inquiry at the First Floor, Muruk House, at Waigani in the National Capital District or on location. (2) The COI may determine at its entire discretion as to the place or places at which it may conduct the Inquiry over all or any of the SABLs. (3) In determining the place or places the COI may conduct its Inquiry, it is guided by considerations of: (a) accessibility to a SABL; (b) nearest station or town to a SABL; (c) logistical capabilities and availabilities; (d) evidence to be adduced before the Inquiry; SABL35 21//11 4

5 (e) witnesses to be called before the Inquiry; (f) the length of time to be taken in the Inquiry; (g) the security of the COI, CA, Counsels, Tas and any other Support staff of the COI; and (h) any other considerations as the COI at its discretion may deem relevant. 3. Conduct of Inquiry, Times and Places (1) The COI shall preside over the Inquiry in accordance with the TOR specified in the Instruments of its establishment and appointments dated 21 st of July 11 and any amendment, extension or variation thereof. (2) Pursuant to Section 14 of the Act the COI had on the 9 th of September 11, authorised each of the Commissioners and the Chief Commissioner to preside individually over the Inquiry and accordingly may exercise and discharge all duties, functions and powers of the COI pursuant to the TOR and the Act as if all Commissioners and the Chief Commissioner are presiding together on each such occasion. (3) The times and places of the Inquiry may be fixed by the COI and interested parties or persons be notified from time to time as the COI deems necessary or convenient including any adjournments. (4) CA may appear either personally or by any Counsel assisting him at the Inquiry. (5) The Inquiry shall be conducted in the English language with translators where necessary. 4. Parties (1) All persons or other entities both incorporated or unincorporated having direct interests in any SABL the subject of the Inquiry may appear before the COI and may be heard by giving evidence or in making submissions. (2) All other persons or entities both incorporated or unincorporated may appear before the Inquiry only with leave of the COI to be heard by giving evidence or in making submissions. SABL35 21//11 5

6 (3) Leave of the COI specified in the preceding sub-section (2) shall be formally sought by an application before the Inquiry. (4) For avoidance of any doubt, interests in a SABL include: (a) customary rights and interests pertaining to the customs of the indigenous people whose land a SABL is comprised of; (b) title holder to a SABL; (c) claims of interest in relation to a SABL through written contracts or agreements including shareholder agreements, sub-leases, memorandum of understanding, joint venture agreements, et cetera; (d) adjacent or neighbouring land and landowners aggrieved by the operations of a SABL; and 5. Evidence (e) any other interests the COI is satisfied constitutes sufficient interests and will justify the party s locus standi. In other words standing. (1) Evidence in relation to the matters being inquired into under the TOR shall be given on Oath either by affidavits, statutory declaration or orally. (2) Evidence given by affidavit, statutory declaration and orally shall be recorded verbatim for the purpose of transcripts. (3) The COI may as necessary from time to time summon witnesses to appear at the Inquiry to give evidence and as required produce documents pursuant to Section 6 of the Act. (4) Affidavits or Statutory Declarations may be tendered as exhibits and form the body of the evidence of the Inquiry. (5) Contents of Affidavits or Statutory Declarations shall be read into the transcripts of the Inquiry. (6) The COI is not bound by strict rules of evidence including inter alia the strict rule of hearsay evidence. 6. Transcripts SABL35 21//11 6

7 (1) All proceedings of the Inquiry shall be recorded verbatim and transcripts thereof shall be kept by the Transcripts Officers of the COI. (2) Persons requesting copies of the transcripts shall specify the date of the proceedings of an Inquiry and the particular SABL in relation to which the proceeding of the Inquiry involved. (3) Copies of transcripts shall be obtained at the cost of K4.00 per page or part thereof. (4) Requests for copies of Transcripts shall be made to the OIC of Transcripts two (2) clear working days of the date of the recording thereof unless if otherwise directed by the COI. 7. Legal Representation (1) Parties including parties granted leave to be a party may be represented by a lawyer but such legal representation shall be with leave of the COI pursuant to Section 8 of the Act. (2) Lawyers without a current lawyers practicing certificate shall not be granted leave to appear before the Inquiry or make any representations of any nature on behalf of a party. (3) A lawyer appearing before the Inquiry shall be neatly attired in shoes, long trousers, skirt, shirt and neck-tie in case of male lawyers. 8. Method of Inquiry (1) Subject to subsection (2) of this section the Inquiry may mainly be conducted in the form of statements taken under Oath and not open to cross-examination by any opposing party. (2) With leave of the COI a witness may be cross-examined on his or her evidence. (3) The COI has absolute discretion whether or not to allow crossexamination of a witness. (4) The COI may obtain relevant and applicable information as it considers necessary on its own volition for the purpose of complete ascertainment of a state of matters or facts affecting a SABL. SABL35 21//11 7

8 9. Official Documents and Records Deemed Evidence (1) All official documents whether tendered in evidence on Oath or submitted informally may be deemed by the COI as evidence before the Inquiry. (2) Official documents include all records of each SABL as kept or ought to be kept by the Government Departments and in particular the Provincial Government Departments, Department of Lands and Physical Planning, Department of Agriculture and Livestock, Department of Environment and Conservation and the Papua New Guinea Forest Authority and such other official agencies of the State.. Natural Justice (1) COI shall observe at the minimum the rules of natural justice as required under Section 59 and 60 of the Constitution if and when a party specified in Section 4 seeks to be heard. (2) COI is not required to observe the rules of natural justice where in its opinion the party seeking to be heard had failed to state the matters to be submitted and the relevance of these matters for the purpose of this Inquiry. 11. General (1) Words importing meaning of a singular means also its plural and vice versa or both. (2) Words importing one gender also means the other gender or both. (3) In its Inquiry the COI may as applicable and expedient rely on any rule of the National Court Rules as a guide. But is not bound by that. That concludes all of the Rules which I propose to be adopted and I pass it back to the Chief Commissioner to announce the formal adoption before we sign it. THE CHAIRMAN: Thank you Commissioner Jerewai. I now formally announce the adoption of those Rules as read out with retrospective effect to the 21 July 11. SABL35 21//11 8

9 We will now formally sign the Rules, the three Commissioners will sign to indicate the formal adoption of those Rules to guide this Commission of Inquiry. MR KETAN: Excuse me, Chief Commissioner, there may be some amendments that Commissioner Jerewai made as he was reading the Rules. That might need to be amendments may need to be made before you finally sign it so I am just pointing out that--- THE CHAIRMAN: Counsel, we can make provisions for amendments for that as well as we proceed. I do not see any real issue on that. I think the purpose really for us today is to formally adopt the Rules and if and when it becomes necessary that there might have to be some amendments to it because of certain reasons it shall be done. Again, we will have to also formally put on record such amendments if necessary. MR KETAN: Yes. I was just referring to small typographical changes that not the body of the Rules, just typos so that, as I realised as Commissioner Jerewai was reading it that those were made so I mean he can adopt that but to sign it after those minor changes have been made. THE CHAIRMAN: Okay, that is fine, we are taking it on board. It is just basically to guide the proceedings so that we have certain guidelines and rules to go by. That will then ensure a standard approach to the manner in which we conduct our hearings. Because of the fact that we will be splitting up to different locations around the country so we just want to bring about some the Rules basically is to bring about some uniformity and consistency in the way we conduct the hearing. So as I said if and when amendments are necessary, if there are any typo errors that needs to be corrected, we will correct them as we go on. COMMISSIONER JEREWAI: I think Mr Ketan, you are referring to the oral amendments as I was reading. MR KETAN: Yes. COMMISSIONER JEREWAI: You can take it straight out of the transcripts and insert and then we will sign the corrected one. MR KETAN: Yes, very well. SABL35 21//11 9

10 THE CHAIRMAN: May I also add that those Rules will have to be made available to lawyers and others who are of interested parties and persons so they are aware of those. If they ask for a copy. MR KETAN: Yes, sure. With the fees for the transcript, that is K4.00 a page, we need to try and determine where those fees are paid, up at the Finance office and we make them available on presentation of receipts which should be which is the normal Government procedure or whether we make some special arrangement with the appropriate authorising agencies or whatever to authorise the officer in charge of the Transcript section to receive the monies or we need to clarify that. COMMISSIONER JEREWAI: It should be under the Public Finances (Management) Act, and I do not have a copy of the Act with me but receiver of public monies will receive all public finances including revenue coming in through this particular means. So I would assume therefore that they should pay at any of the receiver of public monies inlets and bring the receipts. But before they come back with the correct amount paid, obviously they will come and check with you to see the number of pages that are required to be copied and on advice they can go and pay and come back and collect the copies of the transcripts. MR KETAN: Yes. THE CHAIRMAN: Counsel, we can check with Secretary to the COI, Mr Matthew Yuangu on what has been the current practice. But the understanding is that for all payments made to the State is paid into the Consolidated Revenue of the Department of Finance and a receipt is produced for documents or for services to be rendered after that. So let us check this one out with Secretary Yuangu when he returns and we can establish a clear position on that. MR KETAN: Yes. COMMISSIONER JEREWAI: And you might like to take it up Chief Commissioner, perhaps Mr Ketan may wish to take it up with the Secretary to the COI who is also the Secretary to the Secretariat of the COI in determining the appropriate fee to be paid to uplift the copy of the Rules by parties and lawyers, their legal representatives. MR KETAN: The Rules? SABL35 21//11

11 COMMISSIONER JEREWAI: Yes. MR KETAN: Yes. COMMISSIONER JEREWAI: Yes. They cannot go free. These things cost money to put together. MR KETAN: Yes. COMMISSIONER JEREWAI: You can take that up administratively. MR KETAN: Yes, very well. THE CHAIRMAN: Any further business? MR KETAN: No, further. THE CHAIRMAN: Alright, if there is no other further business, then we will adjourn. AT 12. P.M. THE COMMISSION OF INQUIRY INTO SABL WAS ADJOURNED INDEFINITELY. SABL35 21//11 11