Bako v Mines and Minerals Board [1998] SBHC 104; HCSI-CC 227 of 1997 (30 July 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 227 of 1997

LOUISA BAKO & OTHERS

-v-

THE MINES AND MINERALS BOARD & OTRS

High Court of Solomon Islands
(Palmer J.)
Civil Case No. 227 of 1997

Hearing: 11 May, 1998
Judgment: 30 July, 1998

S Watt for the Applicants
J. Hauirae for the First Respondents
A. Nori for the Second Respondents

PALMER J.: There are two applications for consideration by this Court. First - the Notice of Motion filed by the Second Respondent on 23 February, 1998 seeking orders for the Originating Summons of the Applicants (hereinafter referred to as “the Plaintiffs”) to be struck out on two grounds:

(i) that the court has no jurisdiction to hear and determine the matters raised therein in as far as they relate to and involve ownership of customary land;

(ii) that unless issues of ownership of the customary land areas described in the accompanying affidavits are conclusively determined in favour of the Plaintiffs, they have no locus standi to commence this action in the High Court.

The second is the application of the Plaintiffs seeking orders inter alia, for prospecting licence PL 12-97 to be declared invalid on the grounds that the Minister acted in breach of rules of natural justice and ultra vires his powers pursuant to section 21 of the Mines and Minerals Act, 1990; the surface access rights agreements in turn dated 10 and 12 July, 1997 to be declared invalid; and for restraining orders against the Second Respondent.

ISSUES OF CUSTOMARY OWNERSHIP:

The submission raised by learned Counsel Mr. Nori is that this Court has no jurisdiction to deal with matters which pertain to ownership of customary land. Unfortunately, this submission has been misdirected to some extent. The Court is not being asked to determine questions of customary ownership. Rather, it is being asked to review whether or not the procedures required to be followed in the issue of a prospecting licence under the Mines and Minerals Act (“the Act”) and Regulations were being followed. Mr. Watt for the Plaintiffs submits that the mandatory requirements of the Act were not being followed in the issue of the prospecting licence by the Minister and therefore this Court should have that licence declared invalid. This respectfully is not the same as determining questions of ownership as suggested by Mr. Nori. Issues pertaining to ownership of land where that arises are for the applicant (the Second Respondent), in consultation with the Director to address [see paragraph 21 (4) (a) and (b) of the Act].

This Court clearly has jurisdiction to determine the matters raised in the Notice of Motion filed 9th January, 1998.

LOCUS STANDI:

On the question whether the Plaintiffs have locus standi to bring this case, it is argued by Mr. Watt that it is sufficient that it is shown by affidavit evidence that the Plaintiffs are members of landowning groups who claim ownership rights or show that they have an interest in the land in the prospecting area [see affidavits of Louisa Bako filed 25th September 1997, 24th November 1997, 16th April, 1998 and 25th May 1998; affidavits of Samae Livae filed 3rd December 1997, and 25th May 1998; affidavit of Ruben Lilo filed 3 December, 1997; and affidavits of Charles Kelly filed 3rd December, 1997 and 6 May 1998]. In my respectful view, the issue of locus standi in this case is fairly straightforward. It would be sufficient that there is evidence before this court which shows that the Plaintiffs are either landowners in their own rights, or members of a land holding group or persons having an interest in the land in the prospecting area. To that extent, it is not necessary and incorrect to require that the Plaintiffs must first have been conclusively determined as the owners of those customary lands before they can be allowed to bring an action against the Respondents.

In Louisa Bako’ s case, the affidavit of Lawrence Mazini filed 8th May, 1998 confirms that she is a member of the landholding tribe. In fact Lawrence Mazini’s mother and Louisa Bako are blood sisters. To that extent, it is indisputable that she has locus standi to act as one of the Plaintiffs in this action.

In respect of the other Plaintiffs, I am satisfied there is evidence which seeks to show or suggest that those Plaintiffs are either landowners in their own rights, members of the land holding groups or persons having some sort of interest in the land in the prospecting area. Accordingly, I am satisfied those Plaintiffs have locus standi to bring this action.

The Notice of Motion filed by the Second Respondent accordingly must be dismissed.

THE SECOND NOTICE OF MOTION:

The second Notice of Motion of the Plaintiffs seeks inter alia orders of certiorari for the licence no. PL 12-97 to be quashed and for a declaration that the surface access rights agreements obtained in respect of Karivara and Vunagugusu Lands is invalid.

GROUNDS OF RELIEF:

The first ground relied on is breach of the rules of natural justice. Mr. Watt for the Plaintiffs points out that none of the Plaintiffs or any of the landowners from Simbo sat on the Mines and Minerals Board to represent their views at any point in the proceedings before the decision to issue the letter of intent or license. Accordingly no notification of the decision to issue a letter of intent or the prospecting license was received by the Applicants and no opportunity given to be heard to oppose the issue of the letter or license.

Unfortunately this assumes that notice should be given or that the Plaintiffs have a right to be heard before the Minister issues a letter of intent or licence. Respectfully that is not so. Having a landowner sit as a member on the Board is not the same as requiring notice to be given to landowners or a right to be heard. There is no such right to notice or to be heard provided in the Act and in my respectful view it is not necessary to be implied. The functions of the Board are quite specific and do not in any way entail the deprivation of rights of landowners without notice or being heard. The issue of a letter of intent does not entail the deprivation of any rights of any landowners. It is but a first step in a series of steps that may eventually lead to the acquisition of surface access rights. Rights of landowners and opportunities to be heard are specifically catered for under section 21(4) (a) and (b) of the Act. Accordingly there cannot be any breach of any fundamental rights of the Plaintiffs as claimed.

The issue of a licence however does have dire consequences for those affected according to section 26 of the Act. It gives the holder of a prospecting licence together with his servants and agents, the exclusive right to enter any land in the prospecting area and carry out prospecting and related activities. Rights to notice and opportunities to be heard however are catered for under section 21(4) (a) and (b) of the Act.

There is evidence which shows that notices were put out by the Second Respondent as required by the Act (a copy of the notice put out is annexed to the affidavit of Louisa Bako filed 3 December, 1997 marked exhibit “4”). Numerous meetings subsequently were held in various villages to give opportunities to landowners to be heard. I am satisfied accordingly that the suggestion that there has been a breach of the rules of natural justice in regards to the issue of a licence cannot be sustained in the facts of this case. Adequate notice and opportunity was given to the Plaintiffs to have their claims heard.

As to the composition of the Board, section l (b)(iv) to the Schedule requires that in addition, the Minister shall appoint two other persons to sit as members of the Board when it considers application for the issue of a permit, licence or lease; one from the Provincial Government of the area in which the land is situated and the other from the landowners. According to section 5 to the Schedule a quorum for a meeting of the Board shall be five members. Whenever the Board sits to consider applications for the issue of a permit, licence or lease, two other members should sit in addition to those five members. In the facts of this case however, it appears no representative from the landowners was appointed by the Minister to sit as an additional member. Mr. Watt argues this amounted to a denial of notice and an opportunity to be heard.

With respect I must disagree. No notice is required to have any or all of the landowners notified of the proceedings of the Board, nor any given opportunity to appear before the Board and be heard. In my respectful view this particular submission must fail.

PROCEDURAL IMPROPRIETY:

Mr. Watt submits that the procedural requirements laid down by the Act had not been complied with and thereby the surface access rights agreements entered into were invalid.

Karivara Land:

The surface access rights agreement over Karivara Land dated 10th July, 1997 was executed on behalf of the Landowners by three persons; Philip Tuke, John Homelo Tonga and Mynah Quaiso. In its report (Exhibit 2 to the affidavit of Steven Macpherson Watt filed 3 December, 1997) prepared by a representative of the Director of Mines, the following observations were made:

“Karivara Land consists of several proportions of landowner groups. This land was divided into several parcels many generations ago. During negotiations the Company was able to identify several landowning groups within this area. It was able to negotiate with each group on the same terms and these are as follows:

the Company would contribute $2,500 for both school and clinic for that area

the access would be paid at a rate of $150km2 and $50km2 for compensation damage. These payments would only be identified once the boundaries had been specifically identified as to its size.

One area within Karivara Land did not sign the agreement as it currently before the Customary Land Court. This land is a parcel currently owned by Samae Livae and appealed by Simeon Hong.

The Company will evaluate the situation of access fees after the six (6) month period so that it is consistent with those of Vunagugusu Land.

Trustees for Karivara Land will be identified over the next 6 months.”

SECTION 21(4)(a) AND (b):

Paragraph (a) of section 21(4) requires the applicant in consultation with the Director to “identify and record the names of the landowners, land holding groups, or any persons or groups of persons having an interest in the land in the prospecting area.”

According to the report prepared on behalf of the Director of Mines, a number of landowners appear to have been identified:

“During negotiations the Company was able to identify several landowning groups within the area”

Their names unfortunately were not recorded, apart from Samae Livae and Simeon Hong. This is inconsistent with the requirements of paragraph (a) above which requires that the names of the landowners etc. be identified and recorded.

However, if the surface access agreement entered into in respect of Karivara Land is taken into account, it will be seen that the names of other landowners identified apart from Samae Livae and Simeon Hong were Philip Tuke, John Homelo Tonga and Mynah Quaiso. According to paragraph 21(8)(a) of the Act, the names contained in that agreement are prima facie evidence of the names of the landowners etc. having rights over the land in the prospecting area. Unfortunately, this conclusion is incorrect. Those three landowners are not the only landowners having rights within Karivara Land. It was wrong therefore for the applicant and the Director to state in the surface access right agreement that those three landowners alone had rights over Karivara Land and thereby misleading the Minister into issuing a prospecting licence over the whole of the said area. It was clear on the facts that only part of the land had been agreed upon by the landowners for prospecting and that accordingly it was wrong for the report to make a recommendation that a prospecting licence should be issued.

A notable omission too was in not having the boundaries of those various blocks of land as identified in the report clearly delineated on a map or plan so that all the parties are aware of which blocks of land are being affected and which not; including identifying the boundaries of the land currently in dispute between Samae Livae and Simeon Hong and which was not included in the negotiations for surface access rights.

Further, paragraph 21(7)(a) of the Act should have been activated requiring the Second Respondent to amend and subdivide his application to exclude the area over which agreement had not been reached. This was not done by the Second Respondent.

In summary, three omissions or errors can be noted:

(1) a failure to identify and record the names of the landowners, land holding groups, or any person or groups of persons having an interest in the land in the prospecting area;

(2) a failure to identify the areas of land under the control of or owned by the landowners identified;

(3) a failure to comply with paragraph 21(7)(a) of the Act.

EFFECT OF OMISSIONS:

Mr. Watt for the Plaintiffs argues that these omissions or errors are fatal to the validity of the surface access rights agreement in respect of Karivara Land. He argues these were mandatory requirements and so non-compliance must mean invalidity of the surface access agreements obtained.

With regards to the first omission, whilst it is accepted that there had been a failure to comply with paragraph 21(4)(a), I find that the failure had been minimised to some extent by the fact that apart from the names of Samae Livae and Simeon Hong, the names of those other landowners can be identified by reference to the surface access rights agreement dated 10th July, 1997 which had been executed in respect of Karivara Land. Accordingly I do not find the non-compliance to be fatal.

The second and third omissions I consider to be more significant because these have given rise to the confusions and complaints over the prospecting licence that had been issued by the Minister. Whilst the names of the various landowners in Karivara Land may have been identified, the respective boundaries of the areas of land which they own or control had not been identified; in particular the area of land currently in dispute between Samae Livae (Second Plaintiff) and Simeon Hong. According to the report of the Director of Mines, Samae Livae and Simeon Hong did not enter into any agreement with the Second Respondent over the land they disputed between them. This particular block of land therefore ought to have been excluded from the application of the Second Respondent.

The question which this raises is whether this is crucial to the validity of the surface access agreement? On one hand, this question should be answered in the affirmative, in that the contents of the agreement do not correctly show that the persons named therein have all the rights over Karivara Land. On the other hand, I note that according to the findings of the report prepared by the Director, the persons named in the surface access rights agreement do have some rights over Karivara Land, but not over the whole of Karivara Land. The error committed accordingly in my respectful view is one which is severable. The bad part can be excluded from the good without affecting the whole of the agreement.

EFFECT ON LICENCE:

The effect on the prospecting licence issued is similar. The licence can only be valid in respect of areas of land for which surface access rights had been obtained but not others. In my respectful view this error can be corrected once the errors pertaining to the surface access rights agreement had been addressed.

VUNAGUGUSU LAND:

The surface access rights agreement over Vunagugusu Land was executed on 12th July 1997 by Silas Martin and Lawrence Mazini on behalf of the “primary” Landowners. According to the affidavit of Lawrence Mazini filed 8 May, 1998, paragraphs 16, 18-28, deposes that he and Silas Martin were the right persons to sign the agreement on behalf of the tribe.

CLAIM OF THE FIRST PLAINTIFF - LOUISA BAKO:

The claim of the First Plaintiff in reality is a rival claim to rights over and above those assumed by the two landowners (see affidavits of Louisa Bako filed 12 November, 1997, 3rd December 1997, 16 April 1998, and 25 May 1998; also affidavit of Steven Macpherson Watt filed 3rd December, 1997). It is clear on the affidavit evidence before this Court that the First Plaintiff is not only claiming rights of ownership, but refuses to enter into negotiations for surface access rights with the Second Respondent.

It is also clear on the evidence before this Court that the claims of the First Plaintiff had been made known to the Director and Second Respondent well before the agreement was drawn up.

One thing is fairly clear. To say that Lawrence Mazini and Silas Martin are not landowners or persons having rights over Vunagugusu Land would not be correct. According to affidavit evidence before this Court, the First Plaintiff and Lawrence Mazini claim rights from the same source. Lawrence Mazini’s mother, Esther Mazini and the First Plaintiff (Louisa Bako), are blood sisters from the same parents (Esther is older than Louisa). The chieftainship claims of Lawrence Mazini are traced through the same source; Mosiana Luni - mother of both Esther and Louisa. The father of Mosiana Luni, Nake, in turn was the last appointed and recognised chief of Ngari Lilubi tribe (see affidavit of Louisa Bako filed 25th May, 1998, at paragraph (2) of page 3). The chieftainship claims of Lawrence Mazini therefore stem from Nake. This however is hotly disputed by the First Plaintiff. The First Plaintiff denies strongly that Lawrence Mazini had been customarily appointed as tribal (land) chief and authorised by the tribe to have the said agreement executed on their behalf.

According to the Director and the Second Respondent however, after holding meetings with the various landowners, and in exercise of the powers conferred under section 2l(4)(a) and (b), they were of the view that Lawrence Mazini and Silas Martin had the tribes mandate to have the surface access rights agreement signed in respect of Vunagugusu Land.

It is my respectful view that the matters raised by the First Plaintiff are matters internal to the tribe and for the tribe alone to sort out amongst themselves. For instance, such matters as:

chieftainship issues, rights and powers of the chiefs including identity of the tribal land chief, in particular whether Lawrence Mazini and Silas Martin are land chiefs;

authorised representative( s) of the tribe, their identity, rights and powers, in particular whether Lawrence Mazini and Silas Martin are authorised representatives of the tribe;

rights and powers of members of the tribe - how much say for instance do they have over land matters, in particular the status of Louisa Bako and rights over land matters she possesses.

According to the minutes of the meeting held with landowners on 10th July 1997 at Nusa Simbo, one of the decisions reached was that the primary landowners should execute the agreement so that secondary landowners can decide for themselves whether to grant surface access rights over their land as well or not. The impression given is that there are land areas within Vunagugusu Land owned by secondary landowners which only they can give rights over. If they refuse then that is the end of the matter in respect of that block of land. This could perhaps explain why in the minutes of the report of the Director (Exhibit 2 to the affidavit of Steven Macpherson Watt filed 3rd December, 1997) at page 11, it was also decided that:

“ • A period of six (6) months be given to the undecided landowners to think about prospecting and at the same time government officials will be here to carry out land boundaries for those that have signed.

• Within the 6 month period, no prospecting be done.”

The implication to be drawn from this is that those matters would be addressed in detail by the applicant in consultation with the Director before any prospecting is actually done; namely obtain further surface access rights over specific land areas owned by secondary landowners and having land boundaries drawn in respect of land over which surface access rights have been obtained.

Unfortunately, these resolutions erroneously assume that it was alright to have a surface access agreement executed and to have a prospecting licence issued in the interim period. What should have been done is that all those matters should have been addressed first before a surface access agreement is entered into.

PROSPECTING LICENCE ISSUED:

This raises the question in turn as to the validity and effect of the licence issued. Again it seems that whilst there are areas of land within Vunagugusu Land over which Lawrence Mazini and Silas Martin have granted surface access rights, there are other areas, more particularly owned by secondary landowners which have yet to be sorted out and their respective boundaries marked out. The licence issued for the whole of Vunagugusu Land accordingly can only be valid in respect of those areas of land over which Lawrence Mazini and Silas Martin exercise rights over.

Two grounds have been raised in support of the submission that the licence should be declared invalid:

(a) breach of the rules of natural justice;

(b) that the Minister acted ultra vires his powers pursuant to section 21 of the Mines and Minerals Act, 1990.

BREACH OF NATURAL JUSTICE:

To a large extent I have already dealt with this ground in this judgment. The matters which the Minister is obliged to take into account are those spelled out in subsection 21(8). That does not require notice to be given or any further opportunity for the Landowners to be heard. Such requirements are given and done when the applicant and Director seek to identify the landowners and enter into negotiations for surface access rights. There is accordingly no breach of the rules of natural justice in the issue of the licence in this case.

ULTRA VIRES SECTION 21 OF THE ACT:

The function to be performed by the Minister pursuant to subsections 21(8) and (9) are strictly statutory functions. All he needed to satisfy himself with was that a surface access rights agreement had been entered into in respect of the land in the prospecting area. That was what happened in this case, although the Minister was misled by the facts presented before him. The Minister therefore did not act beyond his powers. He simply did what was required of him to do. Unfortunately it was the information presented before him that was incomplete and thereby resulted in the issue of a licence which did not correctly reflect the position on the ground regarding those areas of land where surface access rights had been obtained.

OVE CUSTOMARY LAND:

It is not in dispute that no surface access rights agreement was entered into in respect of this land and that accordingly no licence could have been issued over the said land. Unfortunately, there seems to be a practice developing whereby licences are being issued irrespective of whether surface access rights had been obtained over those lands or not. This respectfully must be clipped at the bud. It is the duty of the applicant in consultation with the Director to specify clearly on a map or plan, the areas over which surface access rights agreements had been entered into and hence a prospecting licence can issue, in contrast to those which are to be excluded.

There also appear to be some misunderstanding that the detailed boundaries of those areas over which surface access rights agreements had been entered into can be sorted out at a later date. This is not correct. Those boundaries must be identified when negotiations had been completed and a surface access agreement entered into. The applicant and the Director (this includes any officers being assigned any task by the Director) should always be mindful of the requirements of subsection 21(7) of the Act. A thorough knowledge of the workings of the Mines and Minerals Act 1990 should be displayed by the Director and his Officers to ensure that the requirements of the Act are complied with and not simply brushed aside or overlooked at the expense of landowners, as has blatantly occurred in this case. Where there are doubts or uncertainties, then the Attorney-General should always be consulted first and clarifications obtained before any major decisions are taken, not after.

CONCLUSION:

It is my respectful view that errors committed are severable. To that extent it is not necessary to issue orders to have the prospecting licence issued quashed. It is also not necessary to have the surface access rights agreements issued declared invalid. The proper course of action to take in this case is to have the licence issued on 14th July, 1997 suspended forthwith and require the applicant in consultation with the Director to have the boundaries of the land areas over which surface access rights have been obtained to be clearly identified. This correspondingly would entail identifying those areas of land where no agreement had been obtained for purposes of having them excluded. A period of ninety (90) days should be given for these matters to be sorted out, failing which the surface access rights agreements and prospecting licence issued shall be permanently suspended.

The period of 90 days above should also be utilised by the First Plaintiff for purposes of sorting out the customary issues in dispute between her and Lawrence Mazini and Silas Martin. She could refer the matter to the Chiefs or directly to the Local Court.

Once the various land boundaries have been sorted out, the prospecting licence issued can be amended correspondingly to reflect the true position on the ground regarding those areas only over which surface access rights had been obtained. For a start, the prospecting licence No. PL12-97 should be amended to exclude Ove Land from the prospecting area.

ORDERS OF THE COURT.

1. Dismiss application for certiorari subject to paragraph (4) and (5) below.

2. Refuse order sought to have prospecting licence no. PL12-47 declared invalid on grounds of breach of the rules of natural justice and ultra vires section 21 of the Mines and Minerals Act, 1990.

3. Refuse order sought to declare invalid the surface access rights agreements obtained by Solomon Mining Limited in respect of Karivara and Vunagugusu Lands on Simbo Island and dated 10 and 12 July, 1997 respectively, subject to paragraph (4) and (5) below.

4. Direct that prospecting licence no. PL 12-97 Simbo Island be suspended forthwith.

5. Direct that the Second Respondent in consultation with the Director of Mines shall mark out clearly on a map or plan and on the ground, the boundaries of the areas of land in Karivara and Vunagugusu Lands over which surface access rights agreements had been obtained, within ninety (90) days, failing which the surface access rights agreements and licence no. PL 12-97 shall be suspended permanently.

6. Liberty to apply on 7 days notice.

7. The Respondents in equal shares to bear the costs of the Applicants in any event.

THE COURT.