Siuta v Native Land Trust Board [2008] FJHC 92; HBC19.2007 (9 May 2008)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No.: HBC 19 of 2007

BETWEEN:

SAMUELA SIUTA, FABIANO NAVARA, APISAI
RADRAVU, VILIAME KULAWAI, ERAMI BIAUNISALA,
TOMASI SAULAKI, ISAIA SOBU for and on behalf of
themselves and on behalf of the members of Mataqali
of Namolevu, Turuwailevu, Wainiura and Muanicula
all of Seaqaqa, Labasa.
Plaintiffs

AND:

THE NATIVE LAND TRUST BOARD
of 831 Victoria Parade, Suva.
First Defendant

AND:

THE FIJI PINE LIMITED a body corporate of Lautoka.
Second Defendant

Mr. N. Nawaikula for Plaintiffs
Mr. H. Robinson for First Defendant
No Appearance for Second Defendant

Date of Hearing: 24th April 2008
Date of Judgment: 9th May 2008

JUDGMENT

Background:

The six plaintiffs allegedly are members of six different mataqalis in Seaqaqa, Vanualevu. They are suing on behalf of themselves and on behalf of the other members of the mataqali. That the members of a mataqali can sue either by way of representative action or all of them sue as plaintiffs is not in doubt: Narawa & Another v. Native Land Trust Board & Others – ABU 12 of 1999. Nor is it necessary for a person who is suing in a representative capacity to get consent of all those whom he represents.

99 year lease issued by NLTB:

The subject matter of this action is a piece of native land known as Vakawanitabua – Nakabuta which is owned by the seven mataqalis. The area of the land is 4085 acres.

On 3rd July 1978 the first defendant issued a 99-year lease over the said land to the Director of Lands. On 23rd October 1992 the Director of Lands then assigned the lease with the Board’s consent to the Fiji Pine Limited. The land is situated outside of Seaqaqa in an unplanned area outside settled areas. The above facts are not in dispute.

The plaintiff submits that the 99-year leases are both void as the maximum term for which the NLTB can issue leases over unplanned areas outside of settled land is 50 years. Any lease which is issued beyond a period of 50 years in such cases is void because it is beyond the powers of the Board to grant such leases. The plaintiffs rely on Atunaisa Tiva v. Director of Lands & Others – ABU 15 of 2004.

Provisions of Native Land (Leases & Licences) Regulations 2007:

However, Tiva was decided under the provisions of Native Land (Leases and Licences) Regulations as they appeared in the 1967 edition of Laws of Fiji. These Regulations were amended by legal Notice 98 of 1984 and have been further amended by Legal Notice 103 of 2007 dated 8th November. This last Regulation has amended Regulation 20 so the Regulation 20 with its amendment, so far as material, would read as follows:

"20(1) Leases, other than tramway and grazing leases, shall for the purpose of determining the maximum term thereof be classified as follows:

(a) leases in properly designed areas in which due provision has been made for roading, commercial areas, school sites, cemetery and recreation reserves, etc.;

(b) leases of isolated unplanned areas outside the margins of settled areas including leases for development purposes or in the public interest such as tourism, water catchment, commercial land development and other commercial leases including forestry, dairy, agriculture, piggery and poultry.

(2) The maximum term of a lease grated under sub-regulation (1) may be ninety nine years.

(3) Not material.

Provided that any lease granted prior to 1st January 2005 shall be deemed to have been granted in accordance with these Regulations."

[underlining is mine for emphasis]

These Regulations now empower the Native Land Trust Board to issue 99-year leases in those cases listed in regulation 20(1)(b). This includes forestry leases as well. The Board has a discretion to grant such leases for any term not exceeding 99 years. The proviso to these Regulations is a savings device by making these Regulations applicable to leases issued prior to 1st January 2005. The shortfall which was exposed in Tiva has now been taken care of. Given these Regulations, the plaintiffs application must fail. Accordingly the originating summons is dismissed with costs summarily fixed in the sum of $600.00 to be paid in fourteen (14) days to the first defendant only.

[Jiten Singh]
JUDGE

At Suva
9th May 2008