Sade v Barua [2001] SBCLAC 1; CLAC Nos 5,6, & 9 of 1996 (2 April 2001)

IN THE CENTRAL ISLANDS
CUSTOMARY LAND APPEAL COURT

CLAC Nos: 5, 6, & 9/96

BETWEEN:

STANLEY SADE &
OTHERS FOR KERUVAL TRIBE
(1st APPELLANT)

LASARO IMISA
FOR KAISELENG TRIBE
(2nd APPELLANT)

JASON KIKOLO &
OTHERS FOR SEVEV TRIBE
(3rd APPELLANT)

AND:

PATSON BARUA &
OTHERS FOR MASI CLAN OF KERUVAL TRIBE
(1st RESPONDENT)

JEMAIMA KERUVALA &
OTHERS OF SOLOVUI TRIBE
(2nd RESPONDENT)

BAPA AREA COUNCIL
(3rd RESPONDENT)

DECISION

This is an appeal against the determination of the Bapa Area Council made on 30/3/96 in respect of the application by Marvin Brothers Company under the Forest Resources And Timber Utilisation (Amendment) Act 1990 ("the FRTUA Act") for the acquisition of timber rights on certain customary lands on Pavuvu in the Russell Islands.

Under that Timber right proceeding the council had identified the following as persons proposing to grant timber rights and represented all the persons lawfully entitled to grant such rights under Section 5C (3) (b) of FRTIJA Act. They were as follows:

- Jemaima Keruvala of solovui tribe
- David Kome of solovui tribe
- Allen Toku of solovui tribe
- Frank Bollen of solovui tribe
- Patson Barua of masi clan of Keruval tribe
- Jacob Siho of masi clan of keruval tribe
- John Kepentana of masi clan of keruval tribe
- Silvestire Kobaka of masi clan of keruval tribe

Section 5E (I) of the FRTUA Act are in these words:

"Any person who is aggrieved by the determination of the Council made under Section 5C (3) (b) or (c) may, within one month from the date ... appeal to the Customary Land Appeal Court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal."

It is apparent from this provision that the jurisdiction of the Customary Land Appeal Court is restricted only to the determinations of the Council under section 5C (3) (b) or (c) of the FRTUA Act; for our purpose paragraph 5C (3) (b). This is confirmed by Palmer J in the case of David Livingstone & others -V- Napata & others, Civil Case No. 150 of 1997 (at p.2). The relevant words of paragraph 5C (3) (b) of the FRTUA Act are as follows:

"At the time and place... the area council shall ...determine with the customary land owners and the applicant matters relating to —

• whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights..."

The appellants have submitted a number of grounds in support of their appeals some of which we do not intend to address in view of our jurisdiction. Hence, we do not think we should address the issue of whether or not the Bapa area council was a proper council to conduct the timber hearing in view of its constitution at the time of the hearing.

There were grounds to the effect that the Bapa area council's determination was bias and not properly conducted. If we were to address this ground, there was no string of evidence adduced to this court to prove biasness on the part of the Council.

As to the conduct of timber right proceeding we must say that there is no set procedure laid down in the Act as you have in the courts including the CLAC. Rather it is a public inquiry to try and identify persons who in custom are entitled to the timber rights to give their consent for the issue of a licence in favour of the applicant. By nature of the hearing there is a tendency of disorderly presentation and when the situation arises the person(s) controlling the hearing must be on foot.

We now focus our mind on the question of whether the persons proposing to grant timber rights on Pavuvu customary lands as identified by the Bapa area council on 30/3/96 represent all the persons, lawfully entitled to grant such rights.

We had the opportunity to hear evidences on all parties concerned in this appeal. Their evidences relate mostly on their genealogies (or genealogies of their clan) the basis on which they claim customary ownership over Pavuvu. The parties' cases can be summarised as follows:

Stanley Sade (appellant 1) on behalf of his tribe, the keruval tribe told the court that it is common knowledge in the Russells that his tribe was the first to settle on Talau (now Pavuvu). The keruval tribe was formed on top of the hills called Kuisal-lo-sol from two snakes namely Fura and Nalo. The snake Nalo gave birth to two eggs from which a male and female were born namely Rokom and Salitavea. Salitavea gave birth to two women, Maleuria and Omeri. For marriage purposes, the original keruval tribe was split resulting to Omeri's offspring becoming Solovui tribe and Omeri's offspring remaining Keruval tribe.

The essence of Mr. Sade's submission therefore is that on Russells, originally there was only one tribe, the Keruval tribe. A tribe known as solovui later emerged from keruval tribe for marriage purposes. Kaiseleng and Lakuil were merely sub-clans of solovui tribe. Likewise Sevev and Sial keruval are sub-clans of Keruval tribe. This was however denied by Mr Lasaro (appellant 2) for Kaiseleng tribe, Jason Kikolo for sevev tribe and Jemaima Keruvala (respondent 1) for solovui tribe. Each claim that their tribes are tribes on their own and were never emerged from Keruval tribe as claimed by Stanley Sade. All gave different versions as to the origin of their tribes with genealogies, which we will not refer to in detail here.

Jason Kikolo (appellant 3) for sevev tribe gave a lengthy submission, the nature of which seemed to indicate that other claimants were origins of elsewhere and therefore have no right in custom over Pavuvu. Mr. Kikolo told the court that the real name of pavuvu is Talau. Talau is his tribes name meaning "born always" or "continual birth". The tribe was born from a snake called Fura ne nalo. The snake is believed to be a male and female with one form. The first persons to be born out of the snake were Bakou (male) and Ivasa (female). Bakou went around to see if there were people on the island beside him and her sister but found nobody. The phrase referring to this in language is "naga ram ga suni ale". Ale is the name of the place to which they live today. Mr. Kikolo claimed that his people name the island Talau, the original name for Pavuvu. To support his claim of right over Talau (Pavuvu), Mr Kikolo invoked a decision of this court in CLAC 2/89 whereby Ale land was awarded to him.

Lasaro Imisa (appelant 2) on behalf of Kaiseleng tribe based his claim over a piece of land on Pavuvu that was given to his tribe by way of compensation in custom for the killing of the snake, Koevasi at Banika. Through that snake formed the kaiseleng tribe. Her own son-in-law, Sognet later killed the snake, and to compensate for such wrongdoing, Sognet identified a piece of land on Pavuvu from kokoloan to kiragha 1. The snake accepted it and said that the land would be used by her future generations (ie, the kaiseleng tribe).

Mr Imisa also referred to a document containing Mr Alexander's report dated 24/01/20 during which his commission was to investigate the claims of 5 Russell Islanders, namely Mandika, Kapu, Toku, Komi and Vangaveli. Mr Alexander's findings are contained in his Claim No. 19, a copy of which was annexed to Mr Rose's affidavit. Following the recommendations of Alexander's commission the land known as LR338 was sold to the Government by the 5 Russell Islanders. Mr Lasaro told the court that as shown in the document, none of the 5 people represented solovui tribe. They only represent Keruval, Kaiseleng and Talau tribes. To him Talau is now known as the Sevev tribe. Mr Lasaro also referred to a book titled, "The Russell Islands of the British Solomon Islands" written by Robert H. Black who did a research in the Russell Islands between October 1961 and February 1962. At page 14 of that book (annex "AR3" of Mr Rose's affidavit), it was stated by both the Kaiseleng and Solui (Solovui) informants that Solui was a branch of Kaiseleng.

Patson Barua (1st respondent) for Masi clan admitted that masi is a clan originated from keruval tribe but that not all tribes own land on pavuvu. The first person of their clan to exist was a woman called Masi. Masi was born on top of a hill known as Kuisal from a root of a tree known as Nahuvil. The root of the tree is called "kala" meaning mother. Tokilo travelled westward, Tokiti to the east and Farolea to the South of Russells.

Frank Bollen for Jemaima Keruval on behalf of Solovui tribe, in his opening remarks told the court that Sevev tribe do not own any land in the Russells. Sevev tribe is originally from Guadalcanal through a woman namely Pira. Bollen's father, Robert Kove a member of Sevev tribe himself cofirmed this. Mr Bollen told the court that his tribe (Solovui) originated from Talau (Pavuvu) which he claimed to have tambu sites. Solovui originated from Koiruhi hill at Pavuvu. A woman named Manehea was born on the hill and through her the generation of solovui had come about. The word Manehea has an important meaning. Mane means "give" and hea means "bottom". Thus the word Manehea means the bottom or root of Solovui tribe.

Before this court there was no mention of any real evidences in custom, such as tambu sites or sacrificial grounds. That can be understood as the parties may think that it may not be practicable to do so in view of the destination if the court decides to view them itself. In any case, for the purpose of this hearing the court has enough before it to make a determination. Having said that it is the court's view that in view of the nature of this proceeding it is not necessary to demarcate land as raised by one of the appellants.

At the outset, it is interesting to note the mention of Fura and Nalo (Fura ne nalo), the snake(s) by both Keruval and Sevev tribes. The use of names in the genealogies of both tribes is also noted. On the oral evidences of the parties before this court we can no longer accept that Masi and Sevev were tribes of their own but clans emerging from the major Keruval tribe. We accept however that Kaiseleng is another major tribe on Russells from which Solovui clan emerged. This was even confirmed in the respondents' written submission (CLAC NO. 5/96 at p. 11) in which it was stated, "within Russell Islands and particularly pavuvu island Keruval tribe and Kaiseleng tribe are overall names within which you have two major tribes or clans, Masi clan from the Keruval tribe and Solovui ........Tribe". We have no doubt that missing from the quoted lines were the words, "clan from Kaiseleng". In complete sentence it should therefore reads: "Masi clan from keruval tribe and Solovui clan from Kaiseleng tribe. It is surprising as to why these words were so erased with no explanation. This proposition was even confirmed by the informants of both Kaiseleng and Solovui (Solui) to Robert H. Black to the effect that it was contained at page 14 of his book referred to above.

We note that Pavuvu is one of the largest islands in the Russells. From evidences before us we accept that Keruval and Kaiseleng are two major tribes in the Russells. From the evidences before us also we accept that they were the first to exist on Pavuvu. However, whilst they may have primary right over lands on Pavuvu, for the purposes of this proceeding (ie, proceeding arising from timber right), the secondary right owners such as the Masi, sevev, Solovui clans equally cannot be denied. These tribes and clans therefore must all consent before granting any timber rights to the applicant.
Accordingly, we find that the persons identified by the Bapa area council in its determination on 30/3/96 did not represent all persons lawfully entitled to grant timber rights on Pavuvu customary lands. The following as we find represent all persons to grant such rights:

- Stanley Sade, Masimino Qulizepo, William Fox, Clement Savaka, Nesta Vage, Edward Getu and Jasinto Lovasa on behalf of keruval tribe.
- Lasaro Imisa of Kaiseleng tribe
- Jason Kikolo and Leslie Norris of Sevev clan
- Jemaima Keruvala, David kome, Allen Toku, and Frank Bollen of Solovui clan
- Patson Barua Moran, Jacob Siho, Silvestire Kobaka and John Kapentana of Masi clan.

Dated this 2nd day of April 2001.

Moses Puloka President/CLAC

Francis C. Luza (magistrate) Clerk