State v Minister of Infrastructure, Meteorological Services, Lands and Mineral Resources, Ex-Parte Green Pacific Structures Pte Ltd [2022] FJHC 15; HBJ01.2021 (21 January 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Judicial Review Application No. HBJ 01 of 2021

IN THE MATER of a decision (advice) delivered on 12^th March 2021 in

respect of Termination of Waiver of Fishing Rights: Yavusa Ua – Green

Pacific Structures Pte Limited, land is located on the foreshore area

fronting the Company’s Native Lease agreement for lease

property being TLC lot 82 TLTB REF 4/10/40885 known

as Saravi (Part of) in the Tikina of Nadi in the

province of Ba by the Director of Lands.

STATE

v

MINISTER OF INSFRASTRUCTURE, METEOROLOGICAL SERVICES, LANDS

AND MINERAL RESOURCES

EX PARTE

GREEN PACIFIC STRUCTURES PTE LIMITED a limited liability company having

its registered office at Aliz Centre, Level 3, Martintar, Queens Road, Nadi.

APPLICANT

Counsel : Mr. O’Driscoll G. for the Applicant

Ms. Taukei S. and Ms. Ali N. for the Respondent.

Date of Hearing : 04^th January 2022

Date of Ruling : 21^st January 2022

RULING

(On the Application for Leave to Apply for Judicial Review)

[1] The applicant filed this application seeking leave to apply for judicial review seeking the following reliefs:

(i) An order of certiorari to quash the decision and advice of the Director of Lands dated 12^th March 2021and delivered on 12^th March purporting that the Yavusa Ua to follow the procedure of Termination of Fishing Rights.
(ii) Declarations (in any event) that:

• (a) The applicant is entitled to the Waiver of Fishing Rights and consequently to a Foreshore Development Lease as it has followed al the correct processes and obtain necessary consents along the way in respect of the foreshore development.
• (b) The Director of Lands failed to properly investigate the circumstances of the purported termination of waiver of fishing rights and obtain legal opinion before reaching the decision and giving advice to the Yavusa Ua with regard to the same.

(iii) Injunctival relief restraining the Ministry of Lands and Mineral Resources from taking any further steps against the application in respect to refusing the application of the foreshore development until after the determination of the within action .
(iv) An inquiry as to damages be undertaken and award made accordingly.
(v) Further declaration or other relief as to this Honourable Court may seem just.
(vi) Costs.

[2] The applicant company applied for foreshore development and for a lease over Crown foreshore land at Navakai Foreshore which was endorsed by the Turaga ni Yavusaand verified by the Roko Tui Ba on 27^th March 2017.

[3] The applicant company then made an application requesting for waiver of fishing rights and it was signed by the Marama ni Yavusa Taukei Ua on 21^st December 2020 and ratification of signatories by Native Lands and Fisheries Commission was verified on 22^nd December 2020.

[4] A Memorandum of Agreement prepared by Yavusa and signed by Marama Taukei Ua Adi Tema Varo on 21^st December 2020 was given to the applicant and it did not agree to clause 2.2.3 of the said Memorandum of Agreement which reads as follows:

Undertake to assist and establish the Community with an Humanitarian Fund to address community projects in health and education and such funds would commensurate once this agreement is signed & sealed and this contribution to be determined at some agreed percentage (5%) in (FJ$) and to be bases on the actual Total Development Cost (TPC) of the propose Total Integrated Tourism Project and to be agreed by both parties.

[5] The applicant did not agree with the clause of the Memorandum of Agreement and in the affidavit in support it is stated that this is an extortion. In paragraph 18 of the affidavit in support it is stated that the Head of the Yavusa Ua, Adi Tema Varo, is purporting to withdraw and cancel the developer’s application because the company refused to sign the Memorandum of Agreement.

[6] The test for whether permission should be granted remains whether an arguable case has been shown, although now the court will be aware of the defendant’s case. Consideration of the defendant’s case – even if only in summary – will surely sometimes lead to the conclusion that the claimant’s case is unarguable, thus leading to the denial of permission in cases in which would otherwise be granted. These changes have been criticised as unlikely to lead more efficient procedure and as being unfair to the claimants. Although some lawyers find even the most obvious propositions ‘arguable’, the grant of permission requires ‘a realistic prospect of success’. Permission may also be refused because of delay or the availability of an alternative remedy or because the claim is premature. [Administrative Law by Wade and Forsyth, 10^thEdition, Pages 555 & 556].

In State v Connors, ex parte Shah [2008] FJHC 64; HBJ47.2007 (7 April 2008) it was held:

At leave stage, the threshold is low. What needs to be established is ‘an arguable case’ to be resolved only by a full hearing of the application for judicial review. At this stage a full review of the facts is unnecessary. Nonetheless, a court is obliged to sufficiently pursue the material provide to determine whether an applicant raises an issue arguably involving an error in law, a serious error in fact; a violation of natural justice or procedural fairness, or an excess of jurisdiction by the decision-maker the subject of the application.

These observations of the High Court cited with approval by the Court of Appeal in the case of Maisamoa v Chief Executive Officer for Health [2008] FJCA 41; ABU0080.2007S (10 July 2008).

[7] Since the dispute between the parties arise there had been many letters and documents exchanged between the parties to these proceedings and relevant government officials. The issue in this matter is the letter written by the Director of Lands on 12^th March 2021 to Adi Tema Varo regarding the withdrawal of termination of waiver of fishing rights amounts to an order or decision. In paragraph 2 of the said letter it is stated:

I wish to advice that you are to provide and submit the following:

1. A proper termination of revocation of waiver pf fishing rights which is to be signed by the current owners or owner of i’Qoliqoli;
2. This is also to be endorsed by the Roko Tui Ba; and
3. Once the proper termination or revocation of waiver of fishing rights is endorsed by Roko Tui Ba, the same is to be forwarded for verification purpose to the Itaukei Lands and Fisheries Commission.

[8] This is the letter, the applicant is seeking to have quashed in its application for an order of certiorari. The question here is whether this is an administrative decision of the Director of Lands. I do not see any order or decision in the letter. In that letter the Director of Lands has advised the Adi Tema Varo to provide certain documents mentioned therein. This is not a decision of the Director of lands for the court to consider its validity in an application for judicial review.

[9] In order (i) sought in the application the applicant is seeking to quash the decision and advice of the Director of Lands.

[10] As I stated above there is no decision made by the Director of Lands and an advice given by a public officer is not amenable to judicial review.

[11] For the above reasons the application for leave to apply for judicial review must necessarily fail.

ORDERS

(1) Application for leave to apply for judicial review is refused.
(2) There will be no order for costs.

Lyone Seneviratne

JUDGE

21^st January 2022