Where a compensation agreement cannot be reached, section 157 of the Mining Act 1992 provides a determination by a Warden.
Section 157(1) — who may request a determination
The (a) holder of a tenement, or (b) landholders claiming an entitlement to compensation, including the claimants to disputed land, may, where they are unable to agree on the amount, by notice to the Chief Warden, request a Warden to determine the amount payable.
Those words matter a great deal in Papua New Guinea. A person whose ownership is contested is expressly entitled to ask for a determination. They do not have to win the land dispute first.
Section 160 then deals with where the money goes: where a Land Disputes Settlement Act dispute makes agreement impracticable, the amount is determined under section 157 and paid into a statutory trust until the dispute is resolved. See compensation in a land dispute.
Either side may initiate. A landholder does not have to wait for the company to move — and, given section 155, the company has every reason to.
Section 157(2) — the Chief Warden fixes the hearing
(a) fix a place or places and date or dates for conducting the determination;
(b) notify the holder of the tenement and the claimant of them; and
(c) at that place and on that date, conduct a determination of the amount to be paid.
As with a Warden’s hearing on an application, the Act contemplates places in the plural. The determination is conducted where the people are.
Section 157(3) — the conduct of the determination
The Warden shall allow the holder of the tenement and the claimant to present their evidence and arguments to him in such manner as he thinks fit, but shall at all times have regard for the principles of natural justice.
The Warden controls the manner of the hearing — there are no rigid rules of evidence or procedure, which suits a determination conducted in a village rather than a courtroom.
But the principles of natural justice apply at all times. That means adequate notice, a real opportunity for each side to put its case and answer the other’s, an impartial decision-maker, and a decision based on the material presented. It is the same standard as section 59 of the Constitution, whose minimum requirement is the duty to act fairly and, in principle, to be seen to act fairly.
If you are given no time to prepare, or evidence is received that you have not seen, say so on the record and ask for an adjournment.
Section 157(4) — the decision
(a) make a determination on the basis of the evidence presented and the argument submitted, and in accordance with the principles of compensation specified in section 154;
(b) record his decision in writing; and
(c) give a copy of the decision to the holder of the tenement and the claimant.
Paragraph (a) ties the determination to the statutory heads — deprivation of use, damage to the surface, severance, loss of rights of way, improvements, loss of earnings from cultivated land, disruption of agricultural activities, and social disruption — together with the Valuer-General’s published values for economic trees under section 154(3), and the prohibitions in section 154(4).
- A measured description of the land affected, with a sketch map and GPS points.
- Dated photographs of the land before and after.
- A counted schedule of trees and plantings, by species and maturity, against the Valuer-General’s values.
- A list and valuation of improvements — houses, fences, tanks, sheds.
- Evidence of earnings from cultivated land — buyer receipts, volumes, prices.
- Evidence of disruption to gardens, access, water, hunting and fishing.
- Evidence of social disruption under section 154(2)(h) — population influx, effects on food supply, schooling, customary obligations and authority.
- Evidence of future loss — section 154(1) covers loss foreseen to be suffered.
- Evidence about neighbouring land injured or depreciated under section 154(6).
Section 157(5) and (6) — partial determinations
Where the Warden considers it impracticable or inexpedient to assess the amount in full satisfaction of the loss or damage, he may make a determination as to compensation payable in respect of a part of the total claim, and defer his assessment of the total claim until a later hearing.
And under section 157(6), such a partial determination shall meet the requirements of section 155.
This suits long-running impacts whose full extent is not yet known. Subsection (6) is important for both sides: a partial determination is enough to satisfy the section 155 precondition to entry — provided the compensation then due is paid or tendered — while the balance of the claim remains open for a later hearing.
Section 158 — appeal to the National Court
A holder of a tenement, or a landholder claiming an entitlement to compensation, aggrieved by a determination of the Warden under section 157(4)(a) as to the amount to which he is entitled or which he is obliged to pay, may appeal to the National Court.
Note that this is a general right of appeal on the amount, not confined to a question of law — unlike, for example, the appeal from the Environment Council under section 68(4) of the Environment Act 2000.
Section 159 — the effect of a determination
Subject to appeal under section 158, a Warden’s determination under section 157 shall be:
(c) a condition of the tenement, the breach of which may be grounds for cancellation; and
(d) binding as a contract on both the holder and the landholders.
So a determination is enforced the same way as a registered agreement: as a contract, and as a tenement condition whose breach can lead to a show-cause notice and cancellation. Unpaid compensation also blocks extension under section 28(1)(b) and is deducted from the security on surrender, cancellation or expiry.
Get advice before the determination, not after — the Public Solicitor, or a firm from the law firms directory.
Sources
- Mining Act 1992 — ss 16, 28, 139, 142–144, 154–160
- Land Disputes Settlement Act (Chapter 45)
- Constitution — ss 41, 59
Before relying on anything here, read the current text of the Mining Act 1992 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.