Roni v Ross Mining (Solomon Islands) Ltd [1997] SBHC 84; HC-CC 060 of 1997 (18 March 1997)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 60 of 1997

WILLIE RONI & DAVID THUGUVODA

-V-

ROSS MINING (SOLOMON ISLANDS) LIMITED & OTRS

High Court of Solomon Islands
(Palmer J)

Hearing: 17th March, 1997
Ruling: 18th March, 1997

C. Ashley for the Applicant (Ex parte)

In attendance: A.Radclyffe for the First and Second Respondents
Attorney-General for the Third Respondent

PALMER J.: Ruling: This is an ex parte application under Order 61A of the High Court (Civil Procedure) Rules 1964 for leave to apply for redress under section 18(1) of the Constitution.

Rule 1(4) provides inter alia, that the judge may

" . . . . .(b) refuse leave and dismiss the application on the ground that an application is frivolous or vexatious; or

(c) refuse leave and decline to exercise the powers under subsection (2) of section 18 of the Constitution if he is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in the application under any other law; . . . . "

There are two applicants in this case. The first applicant, Willie Roni, according to the Statement accompanying application for leave to make application for redress under section 18(1) of the Constitution of Solomon Islands, claims to be the Paramount Chief of the Valolo area (part of which includes the Mining Lease Area), and Chief of Rausere Tribe. He claims that he is the "primary right" holder in respect of land situated at Valebilobilo. He is also an automatic member of the Council of the Gold Ridge Community and Landowners’ Association. Schedule 1 to the Agreement of the 4th October, 1996 (the "Compensation Agreement") between Ross Mining (Solomon Islands) Limited (Ross Solomon Islands") and Gold Ridge Mining Limited ("GRML") and The Gold Ridge Community and Landowners Association ( "the Landowner’s Association"), contains a list of members of the Landowner’s Association by tribe. One of the tribes listed, the RAUSERE TRIBE, is the tribe which the First Applicant claims to be the chief of. I note also that in the list of members of the Council of Gold Ridge Community and Landowner’s Association, the First Applicant is listed as an automatic member of the Council and one of the signatories to that Agreement.

I am satisfied accordingly for purposes of this application that the First Applicant clearly is a man of standing in his tribe or community and having or exercising "primary rights" over land at Valebilobilo. In the minimum, there is evidence which supports this. It appears too that the said land at Valebilobilo is within the area of the Mining Lease Area, though no map was attached to show this.

Having signed the Compensation Agreement, the First Applicant now comes to this court to seek leave to argue in essence that the Agreement is void as against him or the rights that he represents. This distinction is important to bear in mind as the majority of the members of the Landowner’s Association in fact do not for one moment wish to challenge the validity of the said Compensation Agreement. Issues which do appear to arise from the claim of the First Applicant is whether the Compensation Agreement is binding on him as a signatory and therefore enforceable against him, or whether it is voidable for the reasons set out in paragraph (2) of the written submissions of learned Counsel, Mr Ashley. If it is binding and enforceable against the First Applicant, then it seems that his remedy is confined to the terms stipulated in the Agreement. If however, it is voidable, as he claims, he goes on to submit it seems that no surface access rights could have been acquired by Ross ( Ross Solomons and GRML collectively) under section 32(2) of the Mining and Minerals Act (the "Act"), and thereby no mining lease could have been granted by the Minister of Mines and Energy in respect of the land at Valebilobilo. He goes on to submit that so far as a mining lease had been issued in respect of his said land, (if indeed that had been done), then he further argues it seems that that would be contrary to sections 3 and 8 of the Constitution.

As an alternative argument, he sets out in paragraph 10(b) of his written submissions why such an acquisition (if any), and I should point out, in respect of the area of land at Valebilobilo, by way of grant of the lease, would be invalid.

I am satisfied the claims of the First Applicant are not frivolous or vexatious.

As to the question whether the First Applicant has adequate means of redress for the contravention alleged under any other law, this is dependent on the issues raised. On one hand, his means of redress may be confined to the terms of the Compensation Agreement and the common law. On the other hand, if surface access rights had indeed been acquired in respect of his land at Valebilobilo and that he is not bound by the terms of the Compensation Agreement then it would appear that he should be given leave to seek redress under section 18 of the Constitution.

THE FOURTH APPLICANT

The Fourth Applicant is a Chief of the Thogo Tribe and claims "secondary rights" to land situated at Rausere, which is within the Mining Lease Area. By virtue of those "rights", they claim to be "landowners" as well, and thereby have a right to be consulted and to participate it seems in the negotiation process for acquisition of surface access rights in respect of land at RAUSERE. This they claim has not been done and as a result they have been omitted from the terms of the Compensation Agreement. Whilst on one hand, it seems that their argument essentially is that the Compensation Agreement may have been invalid for the reasons set out in paragraph 2 of the written submissions, it appears on the other hand, that they are arguing that they should have been included in the compensation package contained in the Agreement. Their claim in essence is that they are entitled to be included in the compensation package as "landowners". On the other hand the terms of the Agreement indicate that the "Landowners Association" may not agree with this and that therefore the "Landowners Association" should be included as Respondents in this application.

The Fourth Applicant also raises the same arguments in respect of their application for redress under section 18 of the Constitution; that their rights under section 3 and 8 of the Constitution had been contravened by the issue of a mining lease in favour of Ross.

Again, I am satisfied that the claims of the Fourth Applicant are not frivolous or vexatious or that adequate means of redress are available under any other law. This is arguable at this stage. In the circumstances leave should be granted for an application for redress to be made under section 18(1) of the Constitution as well.

THE COURT.