Kera v Attorney General [2007] SBHC 154; HCSI-CC 153 of 2007 (27 June 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 153 of 2007

NATHAN KERA,
RONALD KITU &
AGNES LODGE LIMITED

-v-

ATTORNEY-GENERAL,
BELO BELO TRIBE,
RUPASI MURRAY AND
CIP INTERNATIONAL (SI) LIMITED

Date of Hearing: 18 June 2007
Date of Ruling: 18 & 27 June 2007

Patrick Lavery for all 3 Applicants
No appearance of Attorney-General
Wilson Rano for 2nd Respondent
Philip Tegavota for 4th Respondent

RULING on application for adjournment where the Attorney-General has failed to appear on hearing
and subsequent ruling on application for prerogative writ of mandamus.

Brown, J: I’m satisfied the Attorney has notice.

I appreciate what Mr. Tegavota says about the apparent practice of the Attorney more recently to fail to attend court when the Attorney’s appearance is both necessary and appropriate if the Constitutional appreciation of the separation of the arms of governments is to have any real meaning.

This court cannot presume to know why the Attorney has not seen fit to appear in this particular case and thus this court should be wary of any uninformed criticism. But when the Attorney has to my knowledge failed to appear in other matters of importance which call for the Attorney’s appearance to represent the Government or agency which is a party to proceedings, then I can suggest the practice is one which cannot be condoned. It is undermining the Constitutional framework.

The court has an obligation to uphold the Constitution and in this case and others, there appears to be apparent lack of appreciation of the responsibilities of office. I would expect some proper explanation from the Attorney as to why she has been unable to appear today.

I propose to stand the matter down until 3pm this afternoon when I expect an appearance and explanation.

I direct the Registrar to convey my comments to the Acting Attorney-General.

By notice of motion of the 9 May the applicants seek a prerogative writ of mandamus under O. 61 r 4 of the High Court Rules, directed to the Director of Environment and Conservation (the Director) to carry out duties which have devolved upon him in terms of the Environment Act 1998 (the "Act").

By statement in support, the facts alleged are that no "development application" has been made to the Director for a logging project on Belo Belo Island Roviana Lagoon, Western Province. The 1st respondent has been sued in accordance with the Crown Proceedings Act as representative of the Director. No issue has been raised with that course although I should say, from hearing Mr. Rawcliff Caesar that I am satisfied the Director has had an opportunity to instruct the Attorney in the matter.

The 2nd respondent tribe, in so far as its Felling Licence No. A10514 granted on the 24 March 2006 is concerned, is represented by Robert Pentani and is legally represented by Mr. Wilson Rano.

The 3rd respondent has been sued as the representative of the Belo Belo tribe, or "trustee" so called in the statement. Since it has been the practice for land owner "trustees" to purport to represent tribes in proceedings in this court, and since no real obligation has been made to Mr. Rupasi Murray’s joinder as the 3rd respondent, he shall remain a party. That is to be preferred for it would seem Rupasi Murray is one and the same person as Rupasi Mare in Civil Case No. 221 of 2006 where he and others were successful (by ruling dated 5 July 2006) in having proceedings by Nathan Kera to stop this logging on Belo Belo Island struck out.

The 4th respondent is the contractor of the 2nd respondent and the actual logger on the island.

There is, then a res judicata in relation to the issue of the timber rights grant relied upon by the respondents in this case.

But the applicants here, take no issue with that timber rights grant nor the logging licence. Rather they argue that the logging licence is evidence of "development" which attracts the need for the Directors consent under the Act and which presupposes an application for consent which in this instance is lacking. As a consequence, the applicants have been (by the absence of the statutory application and the subsequent need by the Director to follow "process" which calls for objections, if any to the "development" by persons seeking to be heard on the proposal) precluded from the opportunity to exercise their right to object to be found in s. 24(2), and other sections of the Act. The deprivation of those rights, the applicants says, is directly related to the various respondents failure to comply with the "process" under the Act and so far as the Directors’ supposed failure is concerned, gives rise to the right to seek this courts assistance by way of prerogative writ to oblige the Director to carry out his statutory obligations under the Act.

In so far as the Act is concerned, I am satisfied it was gazetted to come into operation on 1 September 2003 by virtue of that gazettal legal notice no. 77 of 41. So the Act although passed through Parliament as No. 8 of 998, did not come into operation until 1 September 2003.

I have dealt with the effect of my earlier judgment. I should also say that I am satisfied no development application in terms of the Act has been made by the 2nd, 3rd or 4th respondents since no evidence has been given of any such application even though the Director has not been able to assist the court on this issue.

The 2nd respondent read Mr. Robert Pentani’s affidavit in answer to the applicants’ motion. He referred to the earlier judgment in cc 221/06 as conclusive of the timber rights process and with that I agree. He then stated that an order of mandamus can only be used to "compel a decision maker to exercise a discretion or a duly imposed by law but not for a particular result as sought by the applicant".

He argued on the strength of decision of the Chief Justice given in Jackson Qalo v AG and Reko Enterprises Ltd ((2003) cc 296/03 dated 29 December 2003) but the purported principle of law asserted by the deponent is no principle for that case was concerned with the act of the Commissioner of Forests in refusing to cancel a timber licence, not as here, the apparent absence of any "process" whatsoever under the Environment Act. I should say that it is not helpful for affidavits to be read purporting to state the law as it affects the case rather than facts within the knowledge of the deponent and relevant to the case. The affidavit is couched in terms of a legal argument. In reality the 2nd respondent, by its agent Robert Pentani, may be seen to concede the "Directors power to require the Respondents to comply with the Environment Act". At clause 5 of his affidavit;

"As such it is not for the Applicants to direct the Director to do a particular act for a particular outcome. The Act certainly provides provisions for compliance".

That is a plain statement which illustrates the flaw in the Respondents case. It is not the Applicants who seek to direct the Director. The Applicants, in accordance with established practice and procedure for prerogative writs, ask that this Court direct the Director to carry out his obligations under the Act, nothing more.

Historically there was no remedy if a public officer omitted or refused to carry out his obligation, but the courts have widened the scope of the writ of mandamus to encompass public officers, such as the Director. It is not correct to say then, that the applicants seek to direct the Director towards a "particular outcome" for that writ of mandamus seeks to oblige the public officer to do his duty in accordance with the Environment Act and his discretion, if any to make decisions under the Act is unfetted by this court .Whether this court should find it appropriate to exercise the court’s power to order a prerogative writ is the issue.

Before addressing that issue, I should say that Mr. Pentani a proprietor as he puts it, of the 2nd respondent, the Belo Belo Tribe, at clause 6 of his affidavit says;

"As regarding the third Applicant I say that it lacks the legal standing in this case and puts it to strict proof of its legal standing".

Again such assertion of law without facts by a parties agent is objectionable and cannot be taken at its face. There are no contradictory facts pleaded to the 3rd applicants claim to a commercial interest for the 3rd applicants’ business is that of a tourist resort operation in the region of the logging.

That is "sufficient interest" without anything further for the connection between the impacts of logging on an eco-tourism business is obvious. In the absence of facts to refute that obvious relationship, "sufficient interest of the 3rd applicant has been shown and the 3rd applicants standing is left without question. Certainly no argument has been raised sufficient for me to depart from the clear principles enunciated by Lord Roskill in R v. Inland Revenue Commissioners’ ex.p. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; (1982) A.C. 617 at 659.

I turn now to the applicants’ argument.

Mr. Lavery was careful to say that the applicants’ claim for the exercise of my discretion to grant this writ of mandamus did not call for any resolution of ambiguity in terms of s. 4 of the Act which provides

"S. 4 (1) In the event of any conflict between the provisions of this Act and the provisions of any other Act the provisions of this Act shall, to the extent of any inconsistency prevail.

(2) Compliance with the requirements of this Act shall not absolve a person from separate compliance with any other law of Solomon Islands including any Provincial Assembly or Area Council Ordinance or Town Council by-law insofar as they are not inconsistent with this Act.

The objects of the Act are set out in Section 3.

"S. 3" (1) The objects of the Act shall be-

(a) to provide for an establish integrated systems of development control, environmental impact assessment and pollution control;

(b) to prevent, control and monitor pollution;

(c) to reduce risks to human health and prevent the degradation of the environment by all practical means, including the following-

(i) regulating the discharge of pollutants to the air, water or land;

(ii) regulating the transport, collection, treatment, storage and disposal of wastes;

(iii) promoting recycling, re-use and recovery of materials in an economically viable manner; and

(d) to comply with and give effect to regional and international conventions and obligations relating to the environment

I should say the purposes are wholly separate from and unassociated with the FR&TU Act. What I am satisfied of, on a reading of the "definition" section 2 is that works envisaged by the forestry or "felling licence" granted the 2nd respondent fall within the definition of "development" and consequently the licensee and any contractor of the licensee is a "developer" under the Act.

There is then on the face of Part III of the Act, an obligation on any developer by s. 17 (i) to make application to the Director "in such form as may be approved by the Minister".

Mr. Rawcliffe Ceasar for the Attorney-General pointed to the absence of any "form" approved by the Minister or forms required under Regulations which were to be made by the Minister under S. 55.

I should say that the use of the expression in S. 17(1) of "in such form as may be approved by the Minister" does not absolve a person obligated to make application if Regulations and a consequent prescribed form have not been promulgated. The use of the mandatory "shall" in the statutory phraseology of s. 17(i) makes that clear.

There is, then an obligation on those "developers" to make application to the Director in terms of S. 17(1) and that application can as Mr. Lavery says, be simply a letter referring to the approval to log.

Section 19 provides for Development consent before a developer may commence or proceed, failure to comply carries with it a criminal penalty.

There is, then no attack as Mr. Rano says, on the ratio given in that earlier judgment in cc 221/06 where I said at 3 "whether ownership or not, the Forestry Act is concerned with a statutory regime for logging customary land and the assertion of ownership cannot displace the regime which has clothed the 1st and 2nd defendants with legitimacy under the Act. The 2nd defendant is one named in the Form II entitled to grant timber rights over this customary land and that is pleaded in the statement of claims. From that finding of the Provincial Executives the plaintiff appealed to the CLAC which dismissed the appeal".

The issue in the applicants case, here, is not an issue which was raised in the earlier Forestry case. There are wholly separate obligations on persons deemed to be "developers" in terms of the Environment Act. Mr. Rano’s argument that a "proprietary interest" to the timber rights of "Belo Belo Tribe" and the consequent logging licence with that group (2nd respondent) "takes, precedence" over the Environment Act or any claim to relief these applicants my have, is a misunderstanding of the purpose of the Environmental Act and this courts power to grant relief by way of prerogative writ.

The objects of the Environment Act set out its purpose. They are separate from and aimed at different purposes or results of the FR & TU Act. I have already addressed the purpose and use of prerogative writs.

Mr. Rano’s argument does not afford his client help in criticising the applicants for lack of "standing" either for "proprietary" rights to timber have no bearing on the question of these applicants "standing" to seek redress under the Environmental Ac t. Rights under the FR & TU Act do not extinguish rights under the Environment Act.

"Standing" to seek redress may be related to those persons (or any public authority) "whose interests are likely to be affected by the proposed development...". (S. 22(i)); on the material before me I am satisfied all three applicants can be said to be "persons likely to be affected" for both the 1st and 2nd applicant’s are landowners in the region of the "developments’ and the 3rd applicants’ commercial business is again of a nature where it is likely to be affected.

The applicants’ rights to raise objections in accordance with the Act, S.s. 22(i); 24(2); and 32(5), (7) all are predicated on the Directors acts cognisant with his duties and obligations. Where the Director has been shown to have omitted or failed to carry out his obligation which directly affects a persons opportunity to object, (given by those particular sections quoted above) then this court has a discretion to direct compliance with the statutory obligations resting on the Director or other authorities.

Where the right of objection of these particular applicants to a proposed development would effectively be extinguished without recourse, were the court to decline to exercise its discretion to direct the proper authority to carry out its statutory obligations, then this court should exercise such discretion.

On a reading of the Act, there is no right in any public authority or person independently of the Director, to object to the proposed development. The Directors failure, then to carryout the process of the Act can clearly be seen to affect the right of persons entitled to object.

I propose accordingly to exercise my discretion and grant the applications so that the prerogative writ of mandamus shall issue, directed to the Director to carry out his duties and obligations in terms of Part III of the Environment Act 1998.

Since I am satisfied a breach of S. 19 of the Act is threatened or risked in the circumstances of the argument of the 2nd, 3rd and 4th respondents, (who have the right to log under the FR&TU Act) I continue in force those earlier interim injunctive orders pending further order.

The respondents’ argument over the fact of the logging licence which must be evidence of an "existing development" (and thus excluded from the particular requirements of the "development application") is flawed for that s. 18 is directed towards developments in operation at the time of the commencement of the Act, 1 September 2003.

The felling licence is dated the 24 March 2006 and post-dates the Act. There was no development then affecting these respondents claiming through the felling licence at the time of the coming into operation of the Act. These respondents were wholly obligated to comply with the provisions of the Act as it affects "developers".

THE COURT