Naqura v Native Land Trust Board [1991] FJHC 56; Hbc0375d.91s (1 October 1991)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 375 OF 1991

Between:

NEUMI NAQURA
Plaintiff

- and -

NATIVE LAND TRUST BOARD
1st Defendant
NATIVE LANDS COMMISSION
2nd Defendant
LAKOMAI ISLAND RESORT LTD.
3rd Defendant

CIVIL ACTION NO. 376 OF 1991

Between:

PENIETATI NASOVASOVA
Plaintiff

- and -

NATIVE LAND TRUST BOARD
1st Defendant
NATIVE LANDS COMMISSION
2nd Defendant
LAKOMAI ISLAND RESORT LTD.
3rd Defendant

Mr. A.R. Matebalavu for the Plaintiffs
Mr. N. Nawaikula for NLTB
Mr. E. Leung for NLC
Mr. J. Singh for Lakomai Island Resort Ltd.

RULING

Although these 2 actions have been instituted by different plaintiffs representing 2 distinct landowning mataqalis, the defendants are the same and the material issues raised in the actions are identical for all practical purposes. It is therefore convenient to deal with the applications together in the one ruling as has been done throughout the proceedings thus far.

By way of background it is convenient to set out very briefly what appears to be common ground in the cases. It is undisputed that the plaintiffs belong to Mataqali Vunakavika and Mataqali Nasau respectively. Furthermore both these Fijian landowning units own land at Malolo in the Nadroga province upon which the 3rd defendant has begun to erect a tourist resort.

It is also common ground that the land in question was initially classed as 'native reserve' and as such could not be leased or otherwise disposed of to the 3rd defendant without first being 'de-reserved'.

The necessary requirements for the 'de-reservation' of native reserve land are set out in Section 17 of the Native Land Trust Act Cap. 134 (hereafter referred to as the 'Trust Act'), which reads as follows:

"17 - (1)The Board may, upon good cause being shown and with the consent of the native owners of the lands, exclude either permanently or for a specified period any portion of land from any native reserve."

and the term 'native owners' is defined in Section 2 of the 'Trust Act' as

"the mataqali or other division or subdivision of the natives having the customary right to occupy and use any native land."

The plaintiffs' claims in respect of each application is in identical terms and may be found in their affidavits in the following 4 paragraphs:

"13.I am advised and verily believe that as the land upon which the development works are being carried out is native reserve land, any dealings in relation to such reserve land and any development carried out thereon may only be commenced after the consent of the native landowners has been obtained by the Native Land Trust Board.

14.I am informed and verily believe that a lease, or Notice of Approval of Lease has been issued by the NLTB to a company Lako Mai Island Resort Limited over the land aforesaid, which said land I and other members of the Mataqali are owners by virtue of the fact that the subject area is part of our native reserve land and of which the Mataqali Vunikavika (and Nasau) is recorded as the owner as the proprietary unit in the records of the NLC;

15. Neither I nor any of the other members of the Mataqali have granted the consent required at law, to the NLTB or to any other person or body, for the subject land to be de-reserved or excised from the Mataqali reserve land, which de-reservation, if consented to validly by the members of the Mataqali would have meant that the NLTB could lawfully deal with the subject land including issue or grant a lease over the land. However this has not been done to date; and finally

16. Accordingly the NLTB has not at any stage lawfully obtained the authority or consent of the Mataqali or its members to issue any lease or similar land tenure or disposition over the subject land. And the lease which the Board has purported to grant to Lako Mai Resort Limited the third defendant herein has been issued without lawful authority consequently the lease is null and void and of no effect."

In the circumstances, needless to say, the plaintiffs both assert that the resort development being carried out on their lands is unlawful and the 3rd defendant as its developer is a trespasser.

The NLTB for its part in seeking to set aside the injunction has filed several affidavits sworn by its Secretary, Luke Yacava in which he asserts that the lands in question are described as being jointly owned by 3 named mataqalis (not including the plaintiffs' mataqalis) and the necessary written consents of the members of the 3 mataqalis was first obtained before the land was leased to the 3rd defendant.

Reference was also made to the absence of any registered survey plans of the subject lands and recourse was had to the NLC, the tikina council, a village meeting and an on-site inspection in the presence of the paramount chief at which no objections were raised by anyone against the ownership of the lands by the 3 named mataqalis.

If I may say so this contrasts graphically with the information provided in the affidavits of Ilaitia Caginavanua the Acting Chairman of the NLC, who deposed that the ownership and general boundaries of the lands in question were determined at a formal enquiry of the NLC conducted " ... at the village of Solevu, Malolo, Nadroga on November 7th 1930 ...".

Furthermore at a meeting on the 20th of November 1990 held at Solevu Village an officer of the NLC " ... with the aid of enlarged aerial photographs and maps confirmed with the landowners that development works being carried out by the 3rd defendant covered native lands belonging to Mataqali Vunikavika and Mataqali Nasau" (i.e. the plaintiffs mataqalis).

There is no reason to doubt the correctness of the NLC's findings in this matter (which is admitted by the NLTB) nor is there any reason to doubt that a mistake was made by NLTB in determining who the 'native owners' of the subject lands were. Furthermore there is no reason to doubt the bona fides of NLTB in the de-reservation and granting of the lease over the said lands or of the 3rd defendant (who on one view might be considered an innocent party) from accepting the lease.

In my view this may be reduced to 2 primary issues firstly, whether there is a legal duty on the NLTB to consult with land owners on the use to which their lands might be put, or to put it another way, whether the clear process of consultation with 'native owners' envisaged by Section 17(1) of the Trust Act extends to an exercise of the NLTB's powers under Sections 8 and 9 of the Native Land Trust Act Cap. 134.

The second disjunctive issue is whether or not the transaction in the present case falls within the 'protective provisions' of Sections 12 and 13 of the Native Lands Act Cap. 133.

As to the first issue, after careful consideration of the scheme of the Native Lands Trust Act and the particular wordings of the relevant sections I am firmly of the view that no such legal duty to consult native owners arises either expressly or by implication in the exercise by the NLTB of its powers under Sections 8 and 9 of the Native Lands Trust Act Cap. 134.

Needless to say in my view once native reserve has been de-reserved under Section 17(1) it becomes available for leasing to anyone under the provisions of Section 8 notwithstanding that the Board must also be satisfied that the land is " ... not being beneficially occupied by the Fijian owners" and the land " ... is not likely during the currency of such lease ... to be required by Fijian owners for their use, maintenance or supports" in terms of Section 9.

I am fortified in this view by the dicta of Kermode J. (as he then was) in Civil Action No. 543 of 1979 Serupepeli Dakai No. 1 and 11 Others v. NLDC and 2 Others when the learned judge said:

"No member of a land owning mataqali can legally object to any other person coming onto his mataqalis land with the authority or permission of the NLTB. He cannot personally bring an action for trespass to the land or claim damages for a trespass which does not directly infringe his personal rights. In this instant case the plaintiff's have purported to object to a lease granted to the first defendant and they seek damages for alleged trespass.

The control and administration of all native land is vested in the NLTB if there is any trespass to Native Land it is the board which is entitled to maintain an action."

and later in the same judgment the learned judge said:

"The consent of any mataqali as a unit is not legally required to any act that the Board can legally do under the Act unless the Act specifies that consent of the native owners i.e. the landowning mataqali, is required. Individual members are not owners and their consent is not required."

Be that as it may it need hardly be said that the NLTB would be foolhardy to attempt to arbitrarily impose its will on native landowners as to the use of their native lands and in any event it is difficult to imagine how the NLTB could satisfy itself, as it is required to do, as to what the future land requirements of a particular mataqali might be without consulting the members of the mataqali concerned.

Learned counsel for the plaintiffs however submits that the subject lands under dispute have not been "lawfully" de-reserved and therefore everything done with the land thereafter must be and is inevitably tainted by that initial "illegality".

I cannot agree. To de-reserve native reserve is one thing; to lease native land is a separate and distinct act giving rise to quite different considerations. In my view it is neither irresistible nor inevitable that de-reserved native reserve must be leased, but in any event such lands may lawfully be leased without first being de-reserved provided the terms and conditions of Section 16 of the Trust Act have been complied with or satisfied.

It might be that the plaintiffs' mataqalis as the registered native owners of the subject lands could maintain an action against the NLTB for breach of its statutory duty or of its trusteeship in de-reserving their native reserves but that is a separate issue which does not in my view entitle the mataqalis to also challenge the validity of any lease of such de-reserved land which the NLTB has consented to or granted in terms of its exclusive powers under the Native Lands Trust Act.

After all, NLTB is vested with the control and administration of all 'native land' and is empowered under Section 8 to deal with 'native land' which term, by definition and a process of exclusion, includes 'native reserve'.

I turn next to consider the second issue raised by learned counsels for the defendants namely that the 3rd defendant's lease is protected by the provisions of Sections 12 and 13 of the Native Lands Act Cap. 133.

In this regard learned counsels for the 1st and 3rd defendants submitted that the clear and unequivocal purpose of the two sections is to protect and secure the validity of leases and agreements to lease native land which has been entered into by the NLTB as the sole body vested exclusively with the power to control and administer native land.

Learned counsel for the plaintiff however submitted that the provisions were restricted to native land that had been placed " ... at the disposal of Government ..." for use on 'public purposes' such as bridges, roads, telecommunication and electrical installations to name but a few.

In reply counsels for the defendants noted that both sections were first enacted in 1932 at a time when all dealings with native land were transacted through the Government. They also pre-dated the Native Lands Trust Act which created the NLTB and vested it with exclusive control of all native lands and, more importantly, the reference to native land being placed at the disposal of Government in Section 12 refers not only to land being leased by the Government per se but also to land being leased or dealt with 'on behalf of' the landowning unit which clearly extends beyond leases to Government.

In view of my earlier decision with regard to the first issue and mindful that this is an interlocutory application I express no concluded view on this issue.

I turn then to consider whether or not this injunction should be continued or dismissed and in that regard I have considered the leading decision of the House of Lords in American Cyanamid v. Ethicon Ltd. [1975] UKHL 1; (1975) AC 396.

Suffice to say that after careful consideration of the issues involved in the case as already dealt with earlier in this ruling the plaintiffs have satisfied me that certainly between the NLTB and their mataqalis there exist serious questions suitable for trial and closer examination.

Then counsel for the plaintiffs submits that the continued operation of the 3rd defendant would cause irreparable harm to their native land and possibly marine recourses but such a proposition rests upon the incorrect assumption that the leasing of the plaintiffs lands is inextricably bound up with the very difficult question of its de-reservation.

In my view the breach of statutory duty of the NLTB (if proved) would be adequately compensated for in damages.

If I am wrong in so-holding on the question of damages then I would have no hesitation in finding that the 'balance of convenience' lay with the discharge of the injunction and allowing the work to continue.

Needless to say the plaintiffs have been extremely lax in pursuing their claims in the matter, so much so, that the 3rd defendant has expended in excess of $1/2 million on the project.

The "status quo" which ought to be maintained immediately prior to these applications being made and since late 1990 when it was first confirmed that the resort development was occurring on land belonging to the plaintiffs' mataqalis is the following:

"the 3rd defendant had been granted a lease over the lands in question and had completed the necessary excavations to the site and had begun to build the resort buildings."

In all the circumstances I would exercise my discretion and order that the injunctions be discharged forthwith with costs to the 3rd defendant only to be taxed if not agreed.

For the sake of completeness the cases are adjourned to the chambers cause list on Friday 4th October, 1991.

(D.V. Fatiaki)
JUDGE

At Suva,
1st October, 1991.

HBC0375D.91S