Beti v Allardyce Lumber Co Ltd [1993] SBHC 17; HC-CC 045 of 1992 (21 May 1993)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 45 of 1992

BETI, BISILI & PAIA (As Representatives of the Voramali Tribe)

-v-

ALLARDYCE LUMBER CO. LTD and
ATTORNEY GENERAL and
BISILI, RONI, SAKIRI, HIELE, SASAE, POZA, HITE, DAGA & PATO

High Court of Solomon Islands
(Muria CJ)

Hearing: 14 January 1993
Judgment: 21 May 1993

Jennifer C Corrin for the Plaintiffs
J. Sullivan for the First & Third Defendants

MURIA CJ: The plaintiffs brought this application pursuant to Order 27 Rule 2 of the High Court (Civil Procedure) Rules, 1964 for the determination of the points of law raised in paragraphs 6 and 7 of the Statement of Claim filed in this action.

The Plaintiffs claim that the First Defendant did not comply with the procedures set out in Part II A of the Forest Resources and Timber Utilisation (Amendment) Act 1990 and the Forest Resources and Timber Utilisation (Variation of Commencement) (Amendment) Act 1991 ("the amending Acts") did not remedy the non-compliance by the First Defendant.

The Plaintiffs also claim in the alternative that the amending Acts are contrary to section 8 of the Constitution and thereby invalid. However, Ms Corrin only pursued the points of law raised in paragraph 1 of the summons relating to non-compliance with the Act as claimed in paragraphs 6 and 7 of the Statement of Claim.

The provisions of the Act said to have not been complied with are sections 5E and 5F of Part IIA. I set out the relevant provisions of Part IIA as it then stood at the time of the alleged non-compliance:

"5C. (1) After receiving a copy of an application forwarded to it under section 5B an area council whose membership shall include persons having particular knowledge of customary land rights in the area affected by the application shall -

(a) fix a place within the area of its authority and days, not being earlier than two months, or later than three months, after the day on which such copy is received-

(i) for a meeting with the appropriate Government and the applicant in consultation with them, and settle at that meeting the guantum of share in the profits of the venture of the applicant, and the terms of the representation of the appropriate Government in the management of that venture; and

(ii) for a meeting of the area council to consider such application and to determine the matters specified in sub-section (4);

Provided that where the area council fails to secure the settlement referred to in sub-paragraph (i), no further action prescribed in this section shall be taken and the area council shall recommend to the Commissioner of Forest Resources the rejection of the application, and the application shall be rejected by him accordingly;

(b) if it secures such settlement forthwith give in such manner as it shall consider most adequate and effective to the public within the area of its authority and, in particular, to persons who reside within such area and appear to it to have an interest in the land, trees or timber in question, notice of -

(i) such application;

(ii) the parties to, and terms of, the proposed agreement; and

(iii) the time and place fixed for the relevant meeting under paragraph a (ii).

(2) Any notice given under sub-section (1)(b) shall require any person who has reason to believe that the persons intending to grant timber rights under the proposed agreement are not the persons, or all the persons, as the case may be, lawfully able and entitled to grant such rights to attend the meeting referred to in the notice and at such meeting to state to the area council the particulars of such belief and the reasons for it.

(3) At the time and place referred to in any notice under sub-section (1)(b) the area council shall meet and consider the application to which the notice relates. In considering the application, the area council shall hear any representations made to it in response to the requirement provided for in sub-section (2) and shall take into account those representations and all other matters relevant to the application known or believed by the area council to be true.

(4) Upon the conclusion of its considerations under sub-section (3), an area council shall issue a certificate setting out -

(a) the quantum of share in the profits of the venture of the applicant for payment to the owners of the customary land, and the terms of representation of the appropriate Government in the management of that venture on behalf of those owners, as settled with the appropriate Government and the applicant; and

(b) its determination as to -

(i) whether the persons proposing to grant the timber rights in question are the persons, and are all the persons, lawfully able and entitled to grant such rights, and if not, who such persons are; and

(ii) whether such timber rights in any modified from, may be granted, giving particulars of such modification, if any.

(5) After giving such certificate, the area council shall give notice thereof in the prescribed form and in a similar manner to that in which it gave notice of the relevant application under sub-section (1).

(6) The Clerk to an area council shall cause any certificate issued by it under this section forthwith to be forwarded to the Commissioner of Forest Resources.

Provided that such certificate shall be so forwarded through the appropriate Government.

5D. (1) Any person who is aggrieved by any act or determination of an area council under section 5C may, within one month from the date of the determination, 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.

...........................................................................

5E. (1) When the Commissioner of Natural Resources has received a certificate issued under section 5C and has satisfied himself that -

(a) at least one month has elapsed since such certificate was issued; and

(b) no appeal under section 5D has been lodged against the issuing of such certificate or, if an appeal has been lodged, it has been finally disposed of; and

(c) an agreement for the granting of the timber rights referred to in such certificate has been duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of, such agreement accord with such certificate or, where there has been an appeal under section 5D, relating thereto, the order of the Court determining such appeal,

the Commissioner of Natural Resources shall recommend to the Minister that approval under this Part be given to such agreement.

5F. (1) Upon receipt of a recommendation made under section 5E, and the relevant agreement, duly stamped, the Minister may complete a certificate in the prescribed form approving the agreement.

...................................................................."

Those provisions clearly set out the procedures to be followed once the area council was notified of the Commissioner's consent to the applicant to negotiate with the appropriate Government and the area council on behalf of the owners of the customary land in question. The Commissioner's consent is a pre-requisite to the commencement of any step in the process of obtaining a licence to log on a customary land.

For the Plaintiffs Ms Corrin argued that the First Defendant did not obtain the consent of the Commissioner, an allegation denied by the First Defendant. The history of the present dispute over the First Defendant's licence started in 1989 in Allardyce and Others -v- Attorney General and Others (1988/1989) SILR 78. On the materials now before the court I can assume that in or about November 1987 the First Defendant obtained the consent of the Commissioner to negotiate for the acquisition of timber rights in KRHL.

The process of obtaining the Commissioner's consent having been done, the steps required to be taken thereafter were prescribed by sections 5C, 5D, 5E and 5F of Part IIA of the Act. Under Section 5C, two meetings were required to be convened. The first meeting must be called by the area council, in this case, the Roviana Area Council (RAC), for the Provincial Government and the First Defendant to settle the quantum of profits to be paid to the landowners and to settle the terms of the Provincial Government's participation in the management of the venture. The second meeting was a meeting of the area council to determine the application for the grant of timber rights and whether the persons proposing to grant timber rights were the persons and all the persons entitled to grant such rights, and if not, to determine who such other persons lawfully entitled to grant such rights.

The Court of Appeal and this Court had, in proceedings relating to the present dispute, already observed that those two meetings of the area council were mandatory. The Courts had also observed that the second meeting could not be held by the area council unless it achieved settlement of the share of profits and Provincial Government participation in the management of the proposed venture. Upon failure to secure settlement of the matters referred to in 5C(1)(a)(i), the area council must recommend the rejection of the application to the Commissioner.

I do not need to repeat the facts in this case. Suffice it to say that it had been found by this court in Civil Case No. 93 of 1989 and reiterated and accepted in the Court of Appeal in Civil Appeal Case No. 5 of 1992 that the first meeting never took place and consequently as had been observed by the Court of Appeal in Civil Appeal Case No. 5 of 1992 -

"......meeting (ii) therefore could not validly be called and the certificate which in fact was issued by Roviana Area Council on 18th March 1988 naming twelve persons as those entitled to grant timber rights had no statutory force."

Happily, I do not find myself having to depart from that observation. It is clearly based on accepted facts.

As had been shown in these proceedings, the Defendants had to rely on the subsequent amending legislation to argue that the non-compliance of the Part IIA of the Act had been remedied. But it has been made clear in the cases referred to that the 1990 amending Act did not remedy the non-compliance. Mr Sullivan argued that the non-compliance of sections 5E and 5F was due to a drafting error in section 3(b) of the 1990 Amendment Act. In any case, counsel contended that the Court of Appeal granted the plaintiffs relief on the ground not raised by the Plaintiffs, that is to say, non-compliance with sections 5E and 5F. Thus counsel argued that the decision of the Court of Appeal is only binding on this Court to the extent of the Court of Appeal's ruling that non-compliance with sections 5E and 5F were not cured by section 3(b) of the 1990 Amendment Act and consequently the issues raised in paragraphs 12 and 13 of the counter-claim could have no effect on the outcome of the case.

The decisions of the Court of Appeal are binding on this Court. When the Court of Appeal held that sections 5E and 5F had not been complied with and that section 3(b) of the 1990 Amendment Act did not cure that non-compliance, this Court is bound by that finding. That finding by the Court of Appeal was based on the uncontested facts before it and the same facts continue to apply in the present application.

The breaches of sections 5E and 5F have not yet been cured. As such, unless and until those breaches have been cured the determination of the question of ownership of the land or the right to grant timber rights on the land is of little effect.

Before I proceed to consider the effect of the non-compliances as set out in paragraph 6 of the statement of claim, I will say a word or two on the point raised by the Defendants that no breach of sections 5E and 5F has been pleaded. I cannot accede to that argument for the simple reasons that the failures set out in paragraph 6 of the statement of claim clearly contain the material facts upon which the Plaintiffs rely on their claim of non-compliance with sections 5E and 5F. I do not think that it is necessary that the Plaintiffs need specifically say that 'sections 5E and 5F had not been complied with'.

It was further argued by Mr. Sullivan that the question of locus standi of the Plaintiffs was an important factor for the Plaintiffs to show before they can ask the Court for the declarations, they sought. Counsel argued that the declarations sought by the Plaintiffs are not matters of private rights but of public rights. Thus only the Attorney General can bring the action for the declaratory relief and that the Plaintiffs have no locus standi, counsel contended.

I do not need to dwell on this issue of locus standi in any great length in this application. I am somewhat surprised that the Defendants have waited until now before raising objection to the plaintiff's locus standi to come to this court and to seek relief. Matters relating to the non-compliance of the Act and its effect on the First Defendant's Timber Licence had been raised in this Court and the Court of Appeal with no complaint from the Defendants on to the Plaintiff's standing. I think it is now late in the day to raise the objection against the Plaintiffs.

Even if, for argument's sake, the standing of the Plaintiff is a matter to be decided upon by the Court, I would feel bound to say that the Plaintiffs should be allowed to come to this Court and ask for the relief they are now seeking. For the relief sought by the Plaintiffs are a result of breaches of the law affecting their claim in the land in question. The claim being that they own the land. That is a matter affecting their personal interest and not that of the public.

The validity of the licence, counsel further argued, is a matter of public interest and so only the Attorney General can bring action in respect of it. In support of this proposition Counsel relied on the Gouriet's Case [1977] UKHL 5; [1977] 3 All E.R. 70. That case clearly set out the position under the English law where public rights are vested in the Crown and the Attorney General therefore as an officer of the Crown, exercises the power to bring actions on matters of public interest.

I am of the opinion that the position in England is different to that in Solomon Islands in so far as enforcement of public rights is concerned. In Solomon Islands,

"all powers.... belongs to its people and is exercised on their behalf by the legislative, the executive and the judiciary - established by this constitution."

(Preamble to the Constitution of Solomon Islands). See also the obiter dictum of Daly CJ in Kenilorea -v- Attorney General (1983) SILR 61 at 72 and 73.

The Constitution is "the Supreme law of Solomon Islands." Any other law that is inconsistent with the Constitution is void to the extent of such inconsistency. The Queen is only the Head of State in Solomon Islands. The Attorney General is the principal legal adviser to the Government. As such it may in certain instances where it will be impossible for the Attorney General, as legal adviser to the Government and at the same time take up public interest actions on behalf of the public. One such occasion is the present case. In such a case the individuals like the Plaintiffs in this case, do have standing and the right to come to court and seek their remedies.

I feel I should say a word or two as to why procedural requirements of the Act need to be complied with. The central reason is to assure fair procedure to be followed before the Government exercises its powers which will result in the deprivation of an individual's rights or interests. It is also aimed at preventing arbitrary government and to promote a sense of legitimacy of official action.

In this case the failure to comply with the provisions of the Act regulating the procedures to be followed before issuing the Licence to the First Defendant would go against the principles mentioned above. One of the serious consequences of the non-compliance complained of was the deprivation of the Plaintiffs' right to be heard on their claim over the KRHL. The irregularities committed by the Roviana Area Council, the Commissioner and the Minister clearly denied the Plaintiffs of their right to appeal to the CLAC. That is a governmental deprivation of the Plaintiffs' rights and it was an action implicating the legitimacy of official behaviour.

Having admittedly realised the error the Government, represented by the Second Defendant initiated and had it passed by Parliament, the 1990 Amendment Act, which intended to validate the Licence and the timber rights agreements despite non-compliance with sections 5B and 5C of Part IIA of the Act as in force at the particular time. But as we have seen the Amending Act did not cure the defect as it had intended to do.

The Plaintiffs by their summons also asked for the validity of the licence issued to the First Defendant to be determined. Mr. Sullivan for the defendants argued that this Court should not deal with the issue of the validity of the licence at this stage because regardless of the consequences of the non-compliance with Part IIA the licence had been issued under Part II of the principal Act, not under Part IIA. Counsel further argued that so long as the Commissioner had acted bona fide and was reasonably satisfied of the matters contained in section 5(1A) of the Act, the licence must be taken to be validly issued.

There is a requirement which, unfortunately, counsel did not mention which must be fulfilled as stipulated in paragraph (b) of the proviso to section 5(1A). That proviso reads:

"Provided that no such licence shall be granted unless the Commissioner of Forest Resources is satisfied -

(a).............................................................

(b)that the applicant has obtained approved agreement referred to in Part IIA, when such felling and removal are the subjects of rights granted under that agreement, from any customary land;

...................................................................................................................................."

It will be seen that there is the requirement for the applicant to obtain the 'approved agreement' under Part II A of the Act. As we have seen, it is now beyond question that the approval given by the Minister on 23 November 1988 was not an approval authorised by Part IIA and therefore invalid.

Thus although the licence is issued under Part II of the Act, it is subject to compliance with Part II A provisions. As the provisions of Part IIA had not been complied with, I cannot see how I can ignore such non-compliance and still say that the licence is valid. On the undisputed facts before the court, I am bound to say that the non-compliance with Part IIA of the Act has now proved fatal to the First Defendant's licence over KRHL.

In terms of the summons, I find that the procedures specified in Part IIA of the Forest Resources and Timber Utilisation Act had not been complied with, the particular of such non-compliance are set out in paragraph 6(ii) to 6(vi) of the Statement of Claim. I further find that the Amending Act did not remedy the said non-compliance as alleged in paragraph 7(ii) of the Plaintiffs' Statement of Claim.

It is needless to say, that after the 1989 case (Civil Case No. 93 of 1989) the consequences of the non-compliance as found by the Court should have been put to the First Defendant and should have been advised accordingly. The First Defendant may very well feel that it is time to reconsider the matter and take appropriate actions in order to obtain a licence not tainted by irregularities of the law.

(G.J.B. Muria)
CHIEF JUSTICE