Taraoa Development Association v Manelusi [2007] SBHC 129; HCSI-CC 609 of 2005 (12 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 609 of 2005

TARAOA DEVELOPMENT ASSOCIATION

v

GABRIEL MANELUSI, ROBERT KIKOLO, MOSES KAUKU, HUGO HEBALA,
ELLISON PUHI AND ZEBEDEE HAGEMU (Representing themselves and
members of the Thogokama Tribe of Jejevo/Furona, Isabel Province); And
ALWYN SIPA, SUBOTO SIPA, SIMON SUKA AND WELSHMAN SIPA,
(Representing themselves and members of the Hobrae Tribe of Hurapelo, Isabel Province)

(PALMER CJ.)

Date of Hearing: 29th June 2007
Date of Judgment: 12th October 2007

Bridge Lawyers (Dwane Tigulu) for the plaintiff
A & A Legal Service for the first defendant

Palmer CJ.:

The Plaintiff, Taraoa Development Association ("the Association") is a registered business name. Signatories of the Association are Johnson Vunagi, David Rahukolo, Kathleen Havi and Stanley Vunagi (see "Exhibit DE2" annexed to the affidavit of Douglas Ene filed 21st December 2005). The Association is also holder of a Felling Licence No. A10529 dated 15 September 2005 issued by the Commissioner of Forests over land identified as LR 698 and described as Varei land in Katova District, Isabel Province. Varei land is customary land.

On 26th October 2005, the Association executed a Technology and Management Agreement with Isabel Timber Company Limited ("ITC") to conduct logging operation on Varei land. On 8th December 2005 three bull dozers and two excavators were landed at Nuha Bay where a camp and log pond were to be constructed. The Association claims that Nuha Bay is in Varei land.

The first and second defendants since the landing of logging machineries at Nuha Bay have interfered with the activities of the Association by entering the camp and log pond area of the Association and ITC, making demands and threats for the operation to stop and for the workers of the Association and ITC to leave Nuha Bay or be attacked or killed and removing batteries of the logging machines, one chainsaw and a radio/wireless.

On 22nd December 2005 this court issued interim orders to restrain inter alia the defendants from interfering with the logging operations of the Association. The inter partes hearing was listed for hearing on 16th January 2005 but little progress made until 29th June 2007.

The Association’s Arguments

Two reasons are given by the Association why the orders should continue. First, the Association is the holder of a valid Felling Licence No. A10529 issued on 15th September 2005 over Varei land. Secondly, it is the holder also of valid timber rights over Varei land as per Standard Logging Agreement dated 15th July 2005. The Association argues that unless declared invalid their rights under the licence and timber rights ought to be protected.

1st defendants’ arguments:

A number of grounds have been advanced by the first defendants in support of their arguments why the court should not merely discharge the orders made against them but that the court should consider imposing restraining orders to prevent any logging operations from taking place until the outstanding issues in respect of this matter had been resolved by due process of law.

Firstly, they assert contrary claims of ownership over almost the same area of land stretching from Jingiri River to Jihro River but with a different name called Furona land instead. Mr. Manelusi, spokesman for the first defendants says that he had lodged a land dispute case[1] before the Chief’s Committee under the Local Courts Act over Furona land[2] and heard by the Chiefs on 2nd – 3rd July 1998. The parties in that case were Hedley Vikasi representing the Vihuvunagi Tribe (spokesman was Gabriel Manelusi) v. Johnson Vunagi representing the Taraoa Tribe; John Palmer representing the Hobrae Tribe; and Andrew Gedi representing the Rogisi Tribe. The Chief’s committee made some initial findings which went more in favour of the Vihuvunaghi tribe as the original land owners. The matter then went before the Local Court and on appeal to the Isabel Customary Land Appeal Court ("ICLAC"). It was heard by the ICLAC (LAC No. 3 of 2000) on 13th November 2001, and judgment delivered on Wednesday 14th 2001. The ICLAC remitted the matter back to the Local Court to be re-heard.

Secondly, they say that as early as 1998 the Taraoa tribe had knowledge of the existence of a dispute over Varei or Furona land.

Thirdly, the matter was already the subject of litigation between the contesting parties at the time the Licence No. A10529 was issued.

Fourthly, the correct procedures in respect of the Timber Resources Utilisation Act were never complied with in respect of that licence. No notices were ever put up as required in the Act and no public hearings convened. They challenge the validity of the licence and the standard logging agreement.

Other relevant background information.

1. There is evidence of other licences having been issued in respect of Varei land. The first one was in the mid 1990’s, a licence number TIM 2/32 was issued in favour of Isabel Timber Company Limited for logging operation on LR 698. Persons identified as representatives of the landowners were Johnson Vunagi, Ezekiel Zavani, David Rahukolo and Stanley Vunagi. That licence was subsequently cancelled by the Commissioner of Forests on 15th December 1998. Any rights acquired in respect of that licence accordingly were extinguished thereafter.
   
2. A second licence number A10004 was issued in favour of the Association on 28th August 2002. There was a problem however with this licence for the procedures under the Forest Resources Timber Utilisation Act were never complied with. Instead the procedures of another legislation, the Forests Act 1999 was relied on for the formalities prior to the issue of the licence. The Forests Act 1999 however was never gazetted and so has never become law although it had been passed by Parliament and given the Royal Assent. That licence accordingly suffers from a fundamental defect and should never have been issued.
   
3. The issue of validity of the licence A10529 relied on by the Association is a relevant issue in determining whether the orders should continue or not. There is material which suggests that the formalities and procedures set out in Part III of the Forest Resources and Timber Utilisation Act were never complied with in respect of the application for timber rights by the Association over Varei land. It appears the Association simply relied on the determinations made by the Kia/Katova Area Council in respect of an application by the Isabel Timber Company Limited to acquire timber rights over Varei land. That licence however had been cancelled and extinguished in 1998 and cannot be relied on as subsisting. Whilst the determinations of the Kia/Katova Area Council may be relied on as material in support of an application by the Association of the identity of the representatives of the persons lawfully entitled and able to grant timber rights it does not absolve the Association from lodging fresh application and complying with the procedures set out in Part III of the Act. There is material which supports a prima facie case for the conclusion that the Association had not complied with the appropriate procedures set out in the Forest Resources and Timber Utilisation Act and therefore a procedural defect exists and which may affect the validity of the licence relied on. These are matters to be determined at trial.
   

But even if that determination could be relied on, Mr. Manelusi has sought to challenge the validity of their determination as well. A relevant question which will have to be considered at trial is whether members of the Vihuvunaghi tribe were present or aware of the timber rights hearing conducted in 1991? There are other relevant matters for consideration in terms of the validity of the timber rights meeting conducted which will have to wait until trial.

That there are triable issues cannot be denied. Matters in dispute include ownership and the existence and validity of the licence and standard logging agreements.

On the question whether damages will be an adequate remedy, if the Association wins its case at the end of the day and the injunction imposed in its favour is removed, I am satisfied damages will be adequate as a remedy. On the other hand, if the injunction imposed is allowed to continue in its favour and the first defendant wins its case at the end of the day, the damage done to their forest resources will be irreparable. Damages alone will not be sufficient as a remedy in this case.

On the question of balance of convenience and maintaining the status quo, the scales tilt in favour of having the restraining orders against the first defendant removed. The question arises however as to whether this court should consider imposing orders to restrain any logging activity pending determination of the triable and outstanding issues in this case. It is my respectful view that the balance and interest of justice in this case warrant such orders. The first defendants had from the outset made their position and stand very clear to the Association. They had not stood back, slept or sat on their rights but had been very vocal and written many letters asserting their rights.

There is too much at stake for all the parties involved in this case. The parties must be given opportunity to have their claims fully heard and tested under the current dispute resolution systems based law before any full fledged logging activity is allowed to take place and irreparable harm or damage caused to the forests, plants, streams, rivers, shoreline and marine life within the area of dispute.

Orders of the Court:

1. Discharge orders of the Court imposed on 22nd December 2005 and amended on 9th February 2006 forthwith.
   
2. Impose restraining orders against the Association, its servants and or agents from carrying out any logging operations in Varei land until further orders or determination of the triable issues in this case.
   
3. The Plaintiff to bear the costs of the first defendant in this application.
   

The Court.

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^[1] The Unaccepted Settlement Form (“Exhibit A2”) identified the land area in dispute as stretching from Jihro to Zengiro (Jingiri).
^[2] Boundary claims stretches from Jingiri River to Jihro River – see map marked as “A1” annexed to the affidavit of Gabriel Manelusi sworn 26^th June 2007.