Hanaohimae v Mata Resources Company [2009] SBHC 15; HCSI-CC 429 of 2008 (8 May 2009)

IN THE HIGH COURTOF SOLOMON ISLANDS

Civil Jurisdiction

BETWEEN:

EMMANUEL HANAOHIMAE (Representing the Hanekaria sub-tribe)
First Claimant

AND:

NOEL A’AWA
Second Claimant

AND:

MATA RESOURCES COMPANY
First Defendant

AND:

SAMLIMSAN (SI) LTD
Second Defendant

AND:

POLLY LOGGING COMPANY
Third Defendant

AND:

ATTORNEY GENERAL
Fourth Defendant

Date of Hearing: 23 February 2009
Date of Decision: 8 May 2009

Mr. P. Tagini for First Claimant
Mr. M. Hauri’i for First to Third Defendants
Mr. Nimepo for Fourth Defendant

DECISION ON INTER-PARTES INTERIM INJUNCTION HEARING

Cameron PJ

1 The claimant applies for a continuation of interim orders preventing felling and export of logs from Hanekaria and Rarata lands on Malaita.

2 The first defendant Mata Forest Resources Company (Mata) applies for the restraining orders to be discharged so that logging on those lands can continue.

3 Both parties concede there is a dispute over the customary ownership of Hanekaria and Rarata lands. The directors of Mata depose that the relevant chief authority has been consulted and is looking into the ownership claim.

4 Both parties take the position that the current proceedings ought to go no further until that ownership issue is finally resolved.

5 The real point at issue at this hearing is whether the restraining orders preventing logging ought to remain in place pending resolution by the chiefs or if necessary the Local Court of the dispute over customary ownership.

6 Mata has a licence to log various lands on Malaita, but the point in dispute in the current proceeding is whether the lands covered by the licence include Hanekaria and Rarata lands. Mata says that it does, and the claimant says that it does not.

7 The Form I application for approval to negotiate for logging rights was lodged in late 2005. The lands specified included Apuirarama customary land. That application was accepted by the Malaita Provincial Executive following a timber rights hearing on 10 May 2006.

8 However, the issue remains as to whether or not Hanekaria and Rarata lands were included within the Apiurama customary land the subject of the application. This in turn depends on the ownership rights to Hanekaria and Rarata lands.

9 In terms of how the matter progressed following the determination arising from the timber rights hearing, various separate Form 4 standing logging agreements in favour of Mata were entered into in respect of specific portions of land. These included standard logging agreements dated 5 April 2007 for Rarata and Hanekaria land. Two of ten signatories to the standing logging agreements in respect of Hanekaria land have filed sworn statements to the effect that they were coerced into signing them, though one of those deponents has filed a further sworn statement purporting to resile from that allegation.

10 Included in the material before the Court is a letter dated 20 September 2009 from the Commissioner of Forests to the Provincial Secretary of the Malaita Provincial Executive. It recommends that the standard logging agreements identified in the letter be approved by the Provincial Executive, such recommendation being pursuant to section 11 of the Forest Resources and Timber Utilisation Act.

11 Notably, the Commissioner’s 20 September 2009 recommendation expressly excludes the Rarata and Hanekaria land portions from the recommendation for approval.

12 In a joint sworn statement filed on 1 January 2009, John Waihura and Bobby Haroto, both directors of Mata, assert that the signatory to the Commissioner’s 20 September 2009 letter had no power to exclude those lands, and that she had "engineered this as a result of her conflict of interest in the area".

13 Whatever the truth of the matter, the fact remains that there was no approval forthcoming from the Commissioner of Forests in relation to the standard logging agreements for Rarata and Hanekaria customary lands, with the result that the certificates of approval issued by the Provincial Executive on 26 September 2007 (pursuant to section 12 of the Act) did not include approval from the Commissioner of Forests to issue a licence to fell over Rarata and Hanekaria lands. I note the exclusion of these lands from approval has not been challenged by Mata, except in sworn statements filed in this proceeding.

14 While there is a subsequent letter dated 5 December 2008 from a Principal Forester of the Ministry of Forestry to Mata purporting to grant approval to log certain blocks including the block number allocated to Hanekaria lands, this does not alter the fact that in law Mata had not been granted a licence to fell timber on Rarata or Hanekaria lands, and therefore had no valid authority to do so.

15 Following the exclusion of those lands from those approved for logging, it is apparent that there was an approach to the Ministry of Forestry seeking to have the licence extended to cover Rarata and Hanekaria lands. As to this, the Ministry responded by letter dated 26 May 2008, in which it refused to do and stated that this " will require a fresh new application". The letter further stated:

"This means that Mata Forests has to get consent from respective landowners before Filling in a fresh new Form I application to undergo the full timber rights process for acquiring a felling license over the customary lands in concern. The Commissioner of Forests will not include these customary lands in any extension. Extension of felling license will only be for the term of licenses and not for inclusion of new land areas. By copy of this letter you have been well informed."

16 In my view, there is a strong arguable case that Mata has never received statutory approval to log Rarata and Hanekaria lands.

17 As part of the opposition by Mata to the continuation of the restraining orders, it was submitted that the claimant lacked standing because there is no determination of ownership of the Rarata and Hanekaria lands in his sub-tribes favour. Indeed, there is a decision of a Council of Chiefs following a hearing concluded on 29 September 2008 in favour of Robert Waihura and Bobby Haroto (the latter being a director of Mata) in respect of Rarata land, which has not been challenged in the Local Court.

18 However, I am advised by Mr. Tagini for the claimant that this relatively recent decision will be challenged.

19 I further note that the claimant Mr. E. Hanaohimae was at the timber rights hearing of 10 May 2006 as a representative of the Hanekaria sub-tribe but asserts that because of the way the meeting was run and the short time available "I simply did not have the opportunity to raise Hanekaria’s concerns" (para. 8 (viii) of his sworn statement filed on 19 December 2008).

20 I am satisfied that the claimant and sub-tribe have a sufficient interest in the matters in issue to have the standing to apply for interim relief.

21 There being a strong arguable case that Mata has no statutory authority to mill Rarata and Hanekaria lands, the balance of convenience favours maintaining the prohibition of such logging.

22 Clearly it is desirable that the issues as to customary ownership of those lands are resolved by the local courts, and that this proceeding be stayed until that has occurred. Both the claimants and the first defendant, through counsel, have confirmed that this is the appropriate course of action.

23 I, therefore, confirm that all the interim orders made on 23 February 2009 are to remain in place, with leave given to any party to apply further on 7 day’s notice. I can indicate if the claimant wishes to pursue the matter of an alleged breach by the first defendant of those interim orders, that will need to be the subject of a separate application. Subject to these orders, the proceeding is stayed until further order of the Court, to enable issues as to customary ownership of the lands to be resolved by the local courts.

BY THE COURT