Lilo v Bulacan Intergrated Woods Industries (SI) Company Ltd [2010] SBHC 117; HCSI-CC 446 of 2009 (18 August 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 446 of 2009

BETWEEN

GORDON DARCY LILO AND OTHERS
(Representing the Valagata Tribe)
Claimants

And

BULACAN INTERGRATED WOODS INDUSTRIES (SI) COMPANY LIMITED
First Defendants

And

ASERY HARRY AND OTHERS
(Representing Descendants of Toa)
Second Defendants

And

ATTORNEY GENERAL
(Representing Commissioner of Forests and Western Provincial Executive)
Third Defendants

Mr Rano for the Claimants
Mr Kingmele for First Defendants
Mr Tagini for Second Defendants
Mr Muria for the Third Defendants

Date of Hearing: 6th August 2010
Date of Judgment: 18th August 2010

Ruling

1. In this case the Claimants seek relief of varying kinds and the claim has two bases. One was related to the timber rights acquisition process and the other to breaches of the Environment Act. The matter I am dealing with is an application by the First Defendants. They are seeking orders discharging an interim restraining order dated 15th December 2009, permanent injunctions against the Claimants, dismissal of the claim as not disclosing any reasonable cause of action and costs.
   
2. On 9th December 2009 Hon. Mr Justice Cameron heard applications in this case and in a written ruling dated 15th December made orders, including the interim injunction which the First Defendants now seek to have discharged. No part Cameron J's decision of 15th December has been appealed or challenged.
   
3. In his ruling His Lordship made several crucial findings. He found that the Claimants did not have sufficient standing to challenge the timber rights acquisition process. He went on to consider an application by the Second Defendants to strike out the claim. He says [1], "For the reasons given as to the lack of standing by the claimants, I strike out all the portions of the claim and relief sought which do not directly relate to the failure to comply with the Environment Act".
   
4. An Amended Claim was filed on 5th March 2010 in accordance with that ruling and the consequential orders that flowed from it. The Amended Claim is based solely on the breach(es) of the Environment Act. They are particularised in paragraph 7 of the Amended Claim. The particulars say that (i) no environmental impact assessment has been carried out; (ii) there was no public environmental report published; (iii) there was no public hearing held to scrutinise the public environmental report; (iv) no opportunity was given to the Claimants to make representations or object to the report; and (v) no development consent had been granted by the Director of Environment and Conservation (the Director).
   
5. I would make one point at this stage. As far as I am aware the Environment Act was number 8 of 1998, not 1996 as is set out in the particulars. I do not believe anything turns on that point.
   
6. The only issue before me can therefore be distilled into the one question, have the First Defendants complied with the requirements of the Environment Act? If they have then the whole of the Claimants case goes. If they haven't, what relief is there available to the Claimants.
   
7. In support of the application the First Defendant has filed sworn statements by Clement Base and Tamana Asery. There are no new sworn statements from the Claimants. At the beginning of the hearing Mr Rano indicated he had experienced problems in getting proper instructions. The first named Claimant was a candidate in the National Elections, others named as Claimants were on Rendova. Whilst I have sympathy for Mr Rano and the position he finds himself in I also have to bear in mind that the notice of hearing was first issued on Tuesday 13th July. That was for a hearing scheduled on 29th July 2010. Mr Rano was engaged in another ongoing case on 29th July and the hearing was adjourned to 8th August. The Claimants have had nearly 3 weeks notice and whilst I appreciate Mr Lilo may have had other things on his mind there are 5 other named Claimants. There is no real reason why the Claimants could not have instructed Mr Rano and I refused an application for an adjournment.
   
8. Looking at the evidence I am unable to avoid coming to the conclusion that the breaches particularised in the Amended Claim (and set out in paragraph 4 above) have been dealt with. There is no doubt that an environmental impact assessment has been carried out. I am satisfied that the Claimants were aware that it had been carried out. If they cannot said to have been made aware of the existence of the environmental impact assessment by evidence adduced in another case involving substantially the same parties and the same issues, the instructions [2] of the Director were carried out and a public meeting was held. I do not accept the Claimants could not have attended the meeting at the place designated by the Director, Sabere village. It is impossible to conclude that they did not become aware of the notice exhibited at Sabere village between the time it was posted there on 2nd April 2010 [3] and the date of the hearing, 12th May. They had ample opportunity to make representations to the Director.
   
9. It is clear from exhibit CB-01, which can be found at page 71 of the sworn statement of Clement Base, the Director was satisfied the requirements of the Environment Act had been complied with. He issued his development consent on 1st July 2010. It was conditional on fees being paid. The fees were tendered by cheque the next day.
   
10. The Claimants have indicated that an appeal has been lodged against the Directors decision. There is no direct evidence as to what progress is being made in that appeal or exactly what the nature of the appeal is. Mr Rano mentioned sections 22 and 24 in his submissions. I believe those sections relate to the public hearing and objection provisions in the Act [4]. As the Director has issued his notice of Development Consent [5] I am not clear as to how the Claimants can "appeal" or object at this late stage. The Claimants issuing some form of appeal or objection to the Development Notice has no bearing on this case. It does not preserve their case or claim as against the Defendants. The First Defendants have, on the evidence before me, done all that is necessary to satisfy the requirements of the Environment Act.
    
11. In all the circumstances I find that the Amended Claim does not disclose a reasonable cause of action. I dismiss the claim in it's entirety. It follows that the order of 15th December 2009 should be discharged in it's entirety. The order is accordingly discharged. The First Defendant asks for a permanent injunction preventing the Claimants, their servants, agents, invitees and any other person claiming through them from interfering in the First and Second Defendants' logging operation in Sabere Vuvure and Bokere Customary lands. I make an order in those terms. The costs of all the defendants in these proceedings shall be paid by the Claimants. Those costs are to be taxed if not agreed.
    

Chetwynd J

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^[1] Paragraph 17 of the written decision dated 15^th December 2009
^[2] The letter from the Director dated March 30^th 2010 exhibited as CB-01 to the sworn statement of Clement Base
^[3] See paragraph 6 of the sworn statement of Taman Asery sworn 6^th July 2010
^[4] See exhibit CB -01 at page 65 of the sworn statement of Clement Base
^[5] See page 72 of sworn statement of Clement Base