Bosamata v Solomon Islands Marine Mammal Education Centre [2008] SBHC 7; HCSI-CC 372 of 2007 (13 February 2008)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 372 of 2007

BETWEEN:

ROBERT BOSAMATA
First Applicant

AND:

LONSDALE META KURI
Second Applicant

AND:

SOLOMON ISLANDS MARINE-
MAMMAL EDUCATION CENTRE
First Respondent

AND:

ATTORNEY-GENERAL
Representing the Director of
Fisheries & Marine Resources
Third Respondent

AND:

ATTORNEY-GENERAL
Representing the Director of
Investment
Fourth Respondent

Date of Hearing: 31 October 2007
Date of Decision: 13 February 2008

Mr Waleanisia for 1st and 2nd Applicants
Mr Radclyffe for 1st and 2nd Respondents
No Appearance for Attorney- General

DECISION ON APPLICATION FOR LEAVE
TO APPLY FOR ORDER OF CERTIORARI
(ORDER 61 HIGH COURT RULES)

Cameron PJ

1	These applicants seek leave to challenge decisions granting rights to Solomon Islands Marine Mammal Education Centre (Marine Mammal Centre) and Marine Export Limited to capture, display and export live dolphins from Solomon Islands.
2	That business is carried out on the island of Gavutu, in the Central Islands Province of Solomon Islands, and has been established for some years.
3	In about March 2002 Marine Mammal Centre was granted a fixed term estate over the land on Gavutu Island by the Commissioner of Lands.
4	In an agreement dated 7 August 2002 with the Provincial Executive of Central Islands Province, Marine Mammal Centre was permitted to use the harbour adjoining Gavutu Island for an annual fee, and it was agreed that the business activities would be restricted to a Marine Education Centre and a marine mammals exporting business. The business was then established including the construction of pens to hold and display dolphins and has been in operation for some years, and has included licences issued to Marine Export Limited permitting it to export dolphins.
5	The applicant, Mr Kuri is the Chairman of the Kakau - Hugulava Trust Board, a charitable trust established on 25 October 2005. It has as one of its objects the regaining of lands originally owned by the Kakau – Hugulava tribe but lost "through sales or otherwise". The lands described in the objects specifically include Gavutu Island. The other applicant, Mr Bosamata is also a trustee.
6	The applicants wish to challenge the activities of Marine Mammals Centre and Marine Export Limited on several fronts. They claim that the authorities did not properly consider the impact of their proposed activities, including its potentially detrimental effect on the environment, before registering them as foreign companies permitted to do business in Solomon Islands. They claim that the issue of licences to Marine Export Limited to collect, hold and export dolphins was improper and unlawful, in that the Director of Fisheries failed to have proper regard to the impact the licences would have on the marine environment as he was bound to do under the Fisheries Act 1998, or the fact that it would allegedly be in breach of Article IV of the Convention on International Trade in Endangered Species (CITES).
7	There are a myriad of further complaints about the actual operations of Marine Mammal Centre and Marine Export Limited, including the use to which parts of Gavutu Island has been put and allegations of despoilment, allegations of dynamiting of coral fish to feed the dolphins, allegations that dolphins not caught by traditional methods are being bought in breach of the relevant licence, and allegations that the fees being paid for the use of the harbour have been misapplied by those managing them. There is also an allegation that the signatory of a landowner to the August 2002 agreement lacked authority.
8	To all intents and purposes, the Marine Mammal Centre and Marine Export Ltd are carrying on legitimate business activities that have been sanctioned by the various authorities. Marine Mammal Centre has a fixed term estate in respect of the land on Gavutu Island, and an agreement relating to the use of its harbour. Marine Export Limited has at various times been the holder of a licence from the Director of Fisheries permitting the live collection, holding in pens and export of marine mammals.
9	As against that, the applicants are members of a relatively recently formed trust which seeks to regain the land of Gavutu Island for their tribe, notwithstanding the grants which have been made to others. This objective in itself gives them no standing to bring a Court proceeding.
10	I note that in respect of the complaints about land entitlement, there has been no challenge by the applicants under the Land and Titles Act to the fixed term estate granted by the Commissioner of Lands. In relation to the August 2002 agreement, no claim has been pursued that any signatory lacked authority. In relation to complaints that may be capable of constituting breaches of the licences to collect, hold and export dolphins, the allegations are hearsay and I am not prepared to take them into account.
11	What the applicants need to appreciate is that there was no obligation on the authorities to consult with them before registering these companies as foreign investors. Nor was there the obligation to consult with them prior to the granting of the licences. The applicants may feel aggrieved by what is occurring, but they have no proprietary interests in the licences and are not directly affected by their existence.
12	As to the land itself, Marine Mammal Centre has a registered fixed term estate of land on Gavutu Island, and it entitled to use and enjoy occupation of it accordingly. It also has an agreement permitting the use of the harbour. The fact that there are complaints about the use to which fees paid under that agreement are put does not affect its validity.
13	I conclude that the applicants have not established that they are peculiarly affected by the conduct of Marine Mammal Centre and Marine Export Ltd so as to provide them the right to challenge their activities.
14	Leave to proceed further is therefore refused on the grounds of lack of locus standi.
15	There will be no order as to costs.

BY THE COURT