Mining law requires a tenement holder to agree compensation with the landholders before entering the land. The practical question has always been who signs: individual clan members one by one, or a body the landowners have formed to speak for them?
Komai v Mineral Resources Authority [2026] PGSC 38; SC2876
Supreme Court, Waigani — Cannings, Dingake and Andelman JJ, 2 April 2026. Appeals SCA 109 and 111 of 2025, heard together.
What the Court decided
A “landholder” within the meaning of section 2 of the Mining Act 1992 is defined as a “person who is recognised as an owner of customary land”. The reference to a “person” has the meaning of that term as defined in section 3 of the Interpretation Act (Chapter 2).
Section 3 of the Interpretation Act defines “person” to include a corporate sole, a body politic or corporate, and the holder of an office in that capacity.
So an ILG or an incorporated landholders’ association may be a landholder, entitled to take part in consultation and in negotiating compensation and community development agreements.
How it arose
The Porgera gold mine began operating in 1989 under special mining lease SML1. A 1987 government investigation had identified the customary land, its landholders and their agents; compensation was paid to those agents, who distributed it to their clan members.
In 2023 ownership was restructured: New Porgera Limited was granted SML13, with Barrick (Niugini) Limited as operator. To begin operations Barrick needed a compensation agreement under Part VII — and relied on the 1987 investigation to identify the agents.
Long-term agreements for other tenements were registered; those for SML13 were not. The appellants — Tieni Yangua Incorporated Land Group and the New Porgera Landholders’ Association Inc, representing 43 landholder agents — asked the National Court to recognise them as landholders so they could represent the landowners.
What the National Court held
On 12 April 2025 the National Court dismissed the proceedings. On a plain reading of section 2(a), the primary judge held, a landholder is not defined as including a clan, or clan agent, or body corporate, or entity such as an ILG, Association or Company; “person” refers to a human being. He accepted the practical advantages of representative bodies, but held it was a matter for Parliament to amend section 2(a).
How the Supreme Court got to the opposite answer
Courts must give paramount consideration to the dispensation of justice — section 109(4) of the Constitution — and statutes are given a fair, large and liberal construction so their purpose is fulfilled: Inakambi Suingorom v John Kalaut [1985] PNGLR 238 at 241 (Kidu CJ).
The Interpretation Act applies to all PNG laws unless a contrary intention appears, though not to the Constitution or organic laws — Haiveta v Wingti [1994] PGSC 6; [1994] PNGLR 197.
The Mining Act contains no definition of “person”. So the Interpretation Act meaning is the starting point unless a contrary intention appears — and it appears only where a body corporate could not do what the statute requires: “person” covers those who by the use of proper means may be able to fulfil the condition, Pharmaceutical Society v London and Provincial Supply Association (1880) 5 App Cas 857 at 862.
The purpose of Part VII
The purpose of Part VII is to regulate mining in the national interest — and that requires customary landholders to be engaged in genuine consultation with a proper opportunity to negotiate.
From which came the conclusion that carries the case: “Genuine consultation and proper opportunity to negotiate an agreement require customary land holders to decide for themselves how they wish to be represented.”
An ILG is incorporated under the Land Groups Incorporation Act 1974, which exists to recognise the corporate nature of customary groups and let them hold, manage and deal with land in their customary names. The Court held an ILG to be a customary corporation made up of persons within a customary group that is regulated by custom.
Agents compared with land groups
The Mineral Resources Authority argued that landowners could only be represented by agents. The Court rejected that, observing pointedly: “In this case, the agents were chosen by Barrick.”
It also rejected the State and the Minister’s argument that an ILG would look only to its own corporate interests. An ILG has clear and transparent obligations to its members, with accountability and governance provisions. “Agents on the other hand have no such obligations or responsibilities.”
Self-determination is an important element of securing a social licence to operate: customary landowners have the right and ability to choose their own representative structures, and deciding representation should be a fair, democratic and transparent process — Ondalane v Ekepa [2023] PGSC 171; SC2519 at [22].
A social licence is earned through transparency — Kanga Kawira v Kepaya Bone (2017) N6802, endorsed in Rimbunan Hijau (PNG) v Enei [2017] PGSC 36; SC1605 at [27]. This Court added the need for ethical and sustainable behaviour. With many thousands of landowners involved, it accepted it would be unrealistic to expect participation from every single one.
The jurisdiction argument failed too
Without filing a notice of contention, several respondents argued the National Court had no jurisdiction because the matter concerned interests in customary land. The Court rejected this: the dispute was about representation in dealings with New Porgera, not about who owned the land, and so was not within the Land Court’s exclusive jurisdiction under the Land Disputes Settlement Act 1975.
The orders
1–2. The appeal is allowed and the judgment of the National Court set aside.
3. The first to fourth respondents pay the appellants’ costs of both appeals, party-party, taxed if not agreed.
4. The proceedings are remitted to the National Court. The Court added that external mediation would be appropriate, subject to the parties’ views.
Grounds 3(4) and 3(5) failed as unclear and because no leave was sought to challenge findings of fact — see appealing a question of fact.
What it means in practice
You are not confined to whoever a developer identified as your agent. If your group has incorporated — as an ILG or an association — that body may be a landholder in its own right under Part VII.
But it leaves who owns which land where it was: it decides who may sit at the table, not who owns the ground. And it turns on the Mining Act — the Oil and Gas Act 1998 treats representation differently, so the reasoning does not automatically transfer.
Sources
- Komai v Mineral Resources Authority [2026] PGSC 38; SC2876 (Cannings, Dingake and Andelman JJ, 2 April 2026)
- Mining Act 1992 — ss 1, 2, 3, 154, 155, 156; Part VII
- Interpretation Act (Chapter 2) — ss 2, 3
- Land Groups Incorporation Act 1974 — ss 2, 3; Part III. The principal Act is not on PacLII; the amending Act relied on by the appellant is: Land Groups Incorporation (Amendment) Act 2009
- Land Disputes Settlement Act (Chapter 45)
- Constitution — s 109(4)
- Haiveta v Wingti [1994] PGSC 6; [1994] PNGLR 197
- Ondalane v Ekepa [2023] PGSC 171; SC2519
- Rimbunan Hijau (PNG) v Enei [2017] PGSC 36; SC1605