Qurusu v Delta Timber Limited [2009] SBHC 12; HCSI-CC 120 of 2009 (8 May 2009)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

CHIEF GEDION QURUSU, DENSON QURUSU
AND SCRIVEN PABULU (Representing Topara Clan of South Choiseul)
Claimants

AND:

DELTA TIMBER LIMITED
First Defendant

AND:

GLENGROW (SI) COMPANY LIMITED
Second Defendant

AND:

ATTORNEY GENERAL (Representing the Commissioner of Lands)
Third Defendant

Date of Hearing: 20 April 2009
Date of Decision: 8 May 2009

Mr. Michael Pitakaka for Claimants
Ms. Tongarutu for First and Second Defendants
Ms. Ziru for Third Defendant

DECISION ON INTER-PARTES HEARING
FOR INTERIM INJUNCTION ORDERS

Cameron PJ

1 The claimants seek orders to prevent the first and second defendants carrying out logging on Sosoko customary land.

2 One of the claimants, Chief Gedion Qurusu, deposes that he is the Chief of the Topara clan of the Azaka tribe, and that the Topara clan is the customary landowner of Sosoko customary land in South Choiseul.

3 It is common ground that the Topara clan had not granted any timber rights to the first or second defendants to carry out logging on Sosoko customary land.

4 The first and second defendants challenge the standing of the claimants to apply for restraining orders. They assert that the question of who owns Sosoko land remains an unresolved issue and until it is resolved the claimants have no standing to seek restraining orders.

5 Briefly, back in 1995 a timber rights hearing was held following an application by Eagon Resources Development Co. Ltd to acquire timber rights over Azaka land. Azaka land for the purposes of the application consisted of two distinct areas known as Tenepe and Sosoko. At the hearing, Chief Qurusu on behalf of the Topara clan objected to the application for timber rights in so far as it related to the Sosoko portion of Azaka land. The result was that the South Choiseul Area Council hearing the application made a determination dated 21 September 1995 and issued a Form 2 certificate of customary ownership only in respect of the Tenepe portion of the Azaka land. It identified the "Azaka (Tenepe) Landholding Group" as four named persons including Chief D. Lekelalu, and attached a map outlining the boundaries of the Tenepe land the subject of the determination. Notably, the adjoining Sosoko land was excluded because ownership was disputed, the South Choiseul Area Council stating that the parties would need to go to a customs enquiry to resolve that issue.

6 The determination of 21 September 1995 was appealed to the Western Customary Land Appeal Court by one of the persons identified as entitled to grant timber rights over the Tenepe land, but the appeal was dismissed by consent of the parties on 28 October 1998 and is therefore of no significance.

7 The material the Court has suggests a customs enquiry was subsequently held by the Babatana Council of Chiefs on 11 October 2000, at which Chief Gedion Qurusu was present. The chiefs in a written decision ruled that Chief Qurusu and his Topara clan owned Sosoko land. It was a one-sided hearing in that Mr. Wilson Pita, the person representing those with a competing claim to ownership, was not present. The Council of Chiefs explained in their decision why they were prepared to proceed without opposing parties, noting that Mr. Pita for the opposing claimants had repeatedly in the past requested postponements of the hearing date.

8 Following the decision, a certificate of an ‘unaccepted settlement’ was lodged with the Local Court (being the Gizo Magistrate’s Court). Apparently since then Wilson Pita has not pursued the matter with the Local Court.

9 In an undated and handwritten application made it seems in 2004, the first defendant Delta Timber Ltd applied to the Commissioner of Forests for approval to negotiate to acquire timbers right for the logging of "Azaka customary land". A map was attached to the application identifying the Tenepe portion of Azaka land as the area over which timber rights was sought. The boundaries of the Tenepe land as shown in the map appear to coincide with the boundaries for Tenepe land in the map attached to the South Choiseul Area Council determination of 21 September 1995.

10 Other documents before the Court include a standard logging agreement dated 25 June 2004 between identified customary landowners and Delta Timber Ltd, the land concerned identified in the agreement as "Azaka (Tenepe) Customary Land" with a map defining the boundaries attached (once again, the boundaries coincide with the maps already referred to).

11 There is also a Licence No. A10425 dated 20 July 2004 which grants felling rights in respect of "Azaka Customary Land, Choiseul Province". While there is no specific reference to Tenepe land, clearly it is limited to that portion of Azaka land because both the application and logging agreement which preceded it was so limited. Accordingly, it gave no authority to Delta Timber Ltd to log Sosoko land.

12 In 2005 there was an unsuccessful attempt by Wilson Pita to have convened another Babatana Chiefs hearing on who owned the Sosoko portion of Azaka land. It seems this attempt was thwarted by Chief Qurusu taking the position in a letter dated 12 November 2005 to Chief D. Lekelalu that a Chiefs hearing had already determined the issue in 2000 (and, he asserted, as long ago as 1984). In his letter Chief Qurusu stated that his Topara clan was more than willing "to deal with the issue at Local Court Level."

13 Then by letter dated 3 January 2007 Wilson Peter wrote to the Commissioner of Forests seeking an extension of logging rights so as to include Sosoko land. I set out the entire letter below:

"Wilson Pita

Representative of Azaka Tribe

C/- Delata (sic) Timber Limited

P O Box 889

Honiara

January 3, 2007

The Commissioner of Forests

Ministry of Natural Resources

Department of Forestry, Environment and Conservation

P O Box G24

Honiara

Solomon Islands

Dear Sir

Application for extension of Licence No. A10425

Re: Azaka Customary Land

I refer to above matter and advise that I am a member of Azaka Tribe and the spkesperson (sic) of Azaka tribe, the customary owner of Azaka Customary Land in respect of Licence No.A10425.

On July 20, 2004, the Commissioner of Forests issued our logging contractor, Delta Timber Limited with the above Licence to cut, fell and take away timber from Azaka Customary land, South Choiseul, Choiseul Province. The Licence permitted Delta to log the Azaka Customary land.

The map, which was submitted to the office of the Commissioner of Forests (prior to issue of the Licence No. A10425) only covered the one portion of land (Tenepe) situated within Azaka Customary Land. We enclose a copy of the map for your easy reference. Also documents attached A-E.

Our tribe has resolved that it intends to cut, fell and take away timber from other portion of Azaka Customary Land (Sosoko) which is well within the boundaries of Azaka Customary Land.

In this regard I on behalf of my Azaka Tribe hereby wish to apply for an extension of the Licence No. A10425 to cover Sosoko portion of land within the boundaries of Azaka Customary Land.

We look forward to receiving your response as soon as possible.

Yours faithfully

AZAKA TRIBE

(signed)

Wilson Pita."

14 The 3 January letter was followed by a standard logging agreement dated 6 February 2007 granting timber rights to Delta Timber Ltd. Consistently with the letter of request to extend the licence to include Sosoko land, the land to be the subject of the logging is described in the agreement as "Azaka (Sosoko)" land. Four landowners, who were also signatories to the 25 June 2004 logging agreement in relation to Tenepe land, were the signatures to the 6 February 2007 agreement. Immediately above their signatures is the statement:

"Signed on behalf of Azaka Sosoko Customary Landowning Groups."

15 The Commissioner of Forests then acted on the letter of request of 3 January 2007 and the 6 February 2007 agreement, recommending in a letter dated 22 February 2007 to the Provincial Secretary of Choiseul Province that he approve the standard logging agreement (the recommendation being pursuant to section 11 of the Forest Resources and Timber Utilisation Act). The Provincial Secretary then on 6 March 2007 issued a certificate pursuant to section 12 approving the logging agreement.

16 The claimants assert that there was no timber rights hearing to identify those entitled to grant timber rights over Sosoko land following the request by Wilson Pita in early 2007 to have the felling licence no. A10425 extended to cover the Sosoko land. Alternatively, they assert that if there was, then it was not publicly notified and they have lost the opportunity of attending the meeting and asserting their claim to ownership of Sosoko land. These assertions have not been adequately addressed in the sworn statements on behalf of the first and second defendants in reply, and the documentary evidence points to the likelihood no such hearing took place.

17 The 3 January letter is selective in what it states. It states that the licence permitted Delta Timber Ltd to log Azaka customary land, that Sosoko land is well within those boundaries, that the map submitted in support of the application for the licence was for only the Tenepe portion of the Azaka customary land, that it is now the intention of the tribe to fell timber from Sosoko land (described as the "other portion of Azaka Customary land"), and that on this basis an application to extend the licence to cover Sosoko land is made.

18 The 3 January letter is misleading, because it implies that the only reason Sosoko land was not first included in the licence was because the Azaka tribe were not then ready to mill that land, and that there was no legal impediment to the licence being extended to cover that land. It fails to disclose that the real reason the Azaka tribe did not have permission to log Sosoko land that there was no determination of customary ownership in their favour. Further, the letter failed to disclose that there was a Council of Chiefs decision dated 11 October 2000 determining that Chief Qurusu and his clan were the rightful owners of Sosoko land.

19 There is a strong arguable case that the Commissioner of Forests was not entitled to act on Wilson Pita’s letter of request to extend the licence to cover Sosoko land by simply acceding to the request without reference to those affected. There is a strong case that the proper response from the Commissioner of Forests was to require an application from Delta Timber Ltd for approval to negotiate for timber rights over Sosoko land, and for a timber rights hearing to be then convened on the matter (sections 7 and 8 of Forests Resources and Timber Utilisation Act).

20 As to the balance of convenience, I am in no doubt that it favours the claimants. To decide otherwise so as to permit logging pending a final hearing would be to endorse what on its face appears to be a denial of natural justice to the claimants to assert their claim to customary ownership of Sosoko land.

21 I deal with various points raised on behalf of the first and second defendants. It is contended that no case for interim relief has been established because the sworn statements do not adequately establish that there has been any logging by the defendants on Sosoko land. Even if that were so, the fact that Wilson Pita’s letter of 3 January 2007 expressly states that the Azaka clan now wish to log that land, and representatives of that clan then on 6 February 2007 entered into a standard logging agreement purporting to grant timber rights over that land to Delta Timber Ltd, show an intention to carry out logging. Further, that logging agreement has now been approved by the Provincial Secretary of Choiseul Province. It is well established that injunctive relief can include relief for threatened breaches of the law, and I am more than satisfied that without a restraining order the first and second defendants have every intention of logging Sosoko land.

22 I note that there is no undertaking for damages filed. Mr. Pitakaka advised the Court the claimants would be unable to afford to meet any such claims, but there is nothing in the sworn statements as to this. An undertaking as to damages is nevertheless required from his clients to demonstrate their commitment to the proceeding.

23 It was submitted for the first and second defendants that this case should be adjourned or stayed, so that the question of customary ownership of Sosoko land can be finally resolved by a Council of Chiefs or the Local Court. I agree, but will give counsel for the claimants an opportunity to be heard on this first.

24 The Court now makes the following formal orders:

1 The orders of this Court dated 17 April 2009 are now rescinded.

2 The third defendant is prohibited from issuing a licence to the first and second defendants authorising the felling and removal of trees on Sosoko customary land, until further order of the Court.

3 The first and second defendants are prohibited from carrying out any logging operation on Sosoko customary land, until further order of the Court.

4 Any machinery the first and second defendants have on Sosoko customary land is to be removed within 7 days of the date of this order.

5 The claimants are to file and serve an undertaking as to damages within 28 days of the date of this order, failing which the defendants are at liberty to apply to have the restraining orders rescinded.

6 Costs shall be in the cause.

7 Any party has liberty to further on 7 clear day’s notice.

8 Matter is to be relisted for mention on 2 July 2009 at 9.30 am, and in particular to address the issue of a stay of this proceeding pending a final determination of ownership by the relevant land courts.

BY THE COURT

IDR Cameron
Puisne Judge