Vanua of Ba v i-Taukei Lands Commission [2011] FJHC 594; HBC100.2011L (23 September 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 100 of 2011L

BETWEEN:

VANUA OF BA by its representatives Ratu Sairusi Nagagavoka, Sairusi Naliva, Apimeleki Naboro and Samuela Kautoga
Plaintiffs

AND:

i-TAUKEI LANDS COMMISSION
Defendant

JUDGMENT ON JURISDICTION

Judgment of: Inoke J.

Counsel Appearing: Mr N Nawaikula (Plaintiffs)
Mr R Green (Defendant)

Solicitors: Nawaikula Esq (Plaintiffs)
AG's Chambers (Defendant)

Dates of Hearing: 25 August 2011

Date of Judgment: 23 September 2011

INTRODUCTION

[1] The plaintiffs by originating summons filed on 28 June 2011 sought various declarations in respect of their fishing grounds.

[2] However, before determining the substantive application I directed counsel to make submissions on whether the court has jurisdiction to hear it. This is my judgment on the jurisdiction point.

THE APPLICATION

[3] The orders sought by the plaintiff in their originating summons were:

1. A DECLARATION that the description of the customary ownership of the fishing area know as V2, Folio 18, noting that it is owned by the Vanua of Votua comprising Yavusa Nadua, Yavusabalavu and Narai is wrong and a mistake and not in accordance with custom and tradition.
   
2. A DECLARATION that the proper and correct description is Ba comprising the Yavusas Tio, Nakusarau, Namacuku, Ketenavunivalu, Tabanivono, Tukani, Navoli and Batiri.
   
3. A DECLARATION that there is an error in the preparation of such register and that the proper description should be Ba comprising the Yavusas Tio, Nakusarau, Namacuku, Ketenavunivalu, Tabanivono, Tukani, Navoli and Batiri.
   
4. AN ORDER directing the Minister for iTaukei Affairs to amend and correct the description of ownership.
   

[4] The affidavit is supported by the affidavit of Ratu Sairusi Nagagavoka who is the Turaga Tui Ba and by custom and tradition exercises authority over the Yavusas that make up the Vanua of Ba. He says the register of iTaukei fishing rights volume 2 folio 18 in its description of the customary owners is wrong, erroneous and a mistake. He annexes a copy of the folio to his affidavit. He says following an inquiry in September 1961, the defendant registered the proprietors of the subject fishing area as "Votua comprising of Yavusas Nadua, Yavusabalavu and Nairai, Tokatokas 584". It is a mistake. The proprietors should have been the plaintiffs. He says the register is not according to custom and tradition because the plaintiffs have settled and occupied the coastal area adjacent to the fishing grounds from time immemorial. He further says that the error arose out of a report by the Roko Tui Ba dated 20 December 1894 to the Governor. It was a report on the agreed allocation of lands in the area to the various proprietary units. He refers to other historical records and traditional folklore which he says overwhelmingly show that the Commission made a mistake.

[5] The defendant was invited to file an affidavit in reply to answer the allegations made against it by the plaintiffs but did not take advantage of it so this judgment was written without that affidavit. However, its counsel filed written submissions instead.
[6] This is clearly a dispute over ownership of iTaukei fishing rights. It is not an application to correct an error on the face of the iTaukei Customary Fishing Rights Register.

JURISDICTION

[7] Counsel for the plaintiffs attempts to bring this application within section 3 of the iTaukei Lands Act [Cap 133] and section 19(3) of the Fisheries Act [Cap 189].

[8] Section 3 of the iTaukei Lands Act deals with land tenure and provides:

Native lands shall be held by native Fijians according to native custom as evidenced by usage and tradition. Subject to the provisions hereinafter contained such lands may be cultivated, allotted and dealt with by native Fijians as amongst themselves according to their native customs and subject to any regulations made by the Fijian Affairs Board, and in the event of any dispute arising for legal decision in which the question of the tenure of land amongst native Fijians is relevant all courts of law shall decide such disputes according to such regulations or native custom and usage which shall be ascertained as a matter of fact by the examination of witnesses capable of throwing light thereupon. [my underlining]

[9] Firstly, the provision deals with "native lands", now called "iTaukei lands", which is defined as "lands which are neither Crown lands nor the subject of a Crown grant" and clearly does not deal with fishing rights. It has no relevance to these proceedings and cannot vest jurisdiction.

[10] Secondly, ss 6, 7 and 16 of the Act gives exclusive jurisdiction to the iTaukei Lands Commission and the Appeals Tribunal in respect of disputes over ownership between iTaukeis. See: Namatua v Native Lands and Fisheries Commission [2005] FJCA 85; ABU0020.2004S (4 March 2005); State v Native Lands Appeals Tribunal [2009] FJHC 164; HBJ 2 of 2009L (14 August 2009); Yavutu v Vunisa [2010] FJHC 18; HBC318.2008L (28 January 2010); Naimila v Apisalome [2010] FJHC 156; HBC187.2009L (7 May 2010).

[11] The relevant Act is the Fisheries Act [Cap 158]. Under ss 14 to 20 of jurisdiction to hear and determine ownership of fishing rights is vested in the iTaukei Fisheries Commission and Appeals Tribunal whose decisions are final and not open to scrutiny by the Courts. Under s 19(3) of the Act, where an error is found, the Registrar of Titles may correct it under an order from the Minister for iTaukei Affairs.

[12] Clearly, this dispute is outside the jurisdiction of the Court. It is the Minister that has the power to correct the error, if it is an error. The plaintiff's remedy is to be found with the Minister: See Varo v Varo [2010] FJHC 408; HBC234.2008L (5 August 2010). The application is therefore dismissed for want of jurisdiction.

[13] In any event, the plaintiffs have sued the wrong defendant.

ORDERS

[14] The Court therefore orders that (1) the plaintiffs' application by originating summons filed on 28 June 2011 is dismissed for want of jurisdiction and (2) there be no order as to costs.

Sosefo Inoke
Judge