Zaku v Eastern Development Enterprises Ltd [2010] SBHC 130; HCSI-CC 275 of 2007 (6 December 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 275 of 2007

BETWEEN

BROWNLESS ZAKU
Claimant

And

EASTERN DEVELOPMENT ENTERPRISES Ltd
First Defendant

And

ATTORNEY GENERAL
(Representing Commissioner of Forests)
Second Defendant

And

ALLAN GAGAHA, WILLIAM GOTI, RAYMOND
LEKE and CHRISTIAN NGAIRO
Third Defendants

And

ATTORNEY GENERAL
(Representing Premier Isabel Province)
Fourth Defendant

Mr Rano for the Claimant
Ms Tagini for First Defendant
Mr Firigeni for the Second and Fourth Defendants
Ms Bird for the Third Defendants

Date of Hearing: 23rd November 2010
Date of Judgment: 6th December 2010

Judgment

1. The Claimant (Zaku) asks the court for a declaration the "timber rights determination" by the Isabel Provincial Executive (IPE) made 14th June 2006 contravenes the provisions of the Forest Resources & Timber Utilisation Act [Cap 40] (the Act) and is invalid; a declaration the Felling Licence A10512 issued to the First Defendant (EDE) is invalid and void and an injunction restraining EDE from logging Kolourunga/Sukikelehi land (KS land).

2. Zaku speaks for and represents the Sinagi Tribe. They claim ownership of KS land. The Third Defendants (AG and others) represent Rurugu Polopeka tribe and they claim ownership of KS land. This case arose from an application by EDE to acquire timber rights over Kolourugu, Sukekelehi and Bero Islands which was submitted to the Commissioner of Forests in March 2005. The Commissioner consented to the application and it was forwarded to IPE. The letter to the Provincial Secretary is dated 21st March 2005. The documentation showing this is exhibited [1] to a sworn statement filed on 21st May 2010 by Moven Reeves as Commissioner of Forests.

3. The reason why this matter is being litigated is evidenced from what happened thereafter. IPE published a notice [2] on 20th March 2006 which advertised a timber rights meeting on 16th April 2006. There is no evidence of the date the Commissioner's letter (referred to above) was received by IPE but I do not believe it took 12 months to reach Buala from Honiara. It may have taken several weeks but not several months. The relevance of this is to be found in section 8(1) of the Act. It says,

Upon receipt of the application forwarded to it under section 7, the appropriate Government shall fix a place within the area the customary land is situated and a date not being earlier than two months, nor later than three months, from the date of receipt of the copy of the application....

The original section has been amended[3] but the amendment does nothing to alter the strict time limits set out in it. It does not appear to me that IPE complied with the Act by holding a meeting a year after the letter was written containing the copy application and other documentation. I accept the letter may not have reached IPE for some weeks but I do not accept it had taken nearly a year to travel to Buala.

4. The timber rights hearing went ahead on 16th May 2006. I do not believe there is much dispute the parties either made oral or written representations at the meeting. The meeting was told IPE would "make a decision later". Section 8(3) of the Act does not seem to allow this. The section says, "At the time and place referred to in subsection (1) [IPE].....shall.....discuss and determine....".Whilst it may well place an onerous burden on the Provincial Executive they are not entitled to go away and reach a decision after the conclusion of the timber rights meeting. Their determination should be made at the timber rights hearing. If it is not they cannot comply with the rest of section 8(3) nor can they reach any agreement and record it as required by section 8(4). Of course, the Provincial Executive could always adjourn the meeting to a new date, consider the "evidence" and at the adjourned hearing make their determination. They would have to make sure everyone with a declared interest in the determination was aware of the new date and make sure the rest of the community knew by announcing any new date at the end of the adjourned hearing and by public notice. It would also have to be at the same venue as the adjourned hearing. Isabel Provincial Executive did nothing along those lines in respect of this timber rights hearing.

5. According to the documents filed as evidence, IPE went away, they considered the evidence they had heard and on 14th June 2006 issued their determination. There is no evidence of a timber rights hearing on 14th June 2006. Several people, including the then Provincial Secretary, Eddie Ene, say there was but his memo to the Commissioner of Forests dated 1st July 2006 [4] is clear. Writing in July 2006 Mr Ene reports to the Commissioner of Forests, "Attached are the minutes of the Timber Rights hearing held on 16th May 2006" (paragraph numbered 5). In his opening Mr Ene states, "The Appropriate Government met on 14th June 2006 and deliberated on the Timber Rights Determination". There is a slight possibility there was another timber rights hearing between 16th May 2006 and 14th June 2006 but no evidence has been produced showing what happened at the later timber rights hearing, if indeed there was one. The possibility of a later hearing arises because Mr Ene says in his memo, at paragraph 6, "Minutes of another meeting on the Timber Rights hearing documents see attached appendix 4". No one has referred me to appendix 4, it has not been identified as far as I am aware.

6. Mr Ene also sent other documents to the Commissioner of Forests. It appears from Mr Reeve's sworn statement that a Form II was with the memo. On the face of that document Ag and others, as the Provincial Executive of Western Province, determined the persons who were lawfully able to grant timber rights as a certain Mr Habu and others. Any sensible person would probably see the form was a nonsense and that Mr Ene had transposed the names of the Provincial Executive with those of the Third Defendants. Would such a nonsense render the Form II as void? In my view it is important to correctly and accurately state the determination made by the appropriate government in any documents for publication. If the published document was capable of misinterpretation, if it was misleading in a material detail, then it could well be invalid. I do not have to consider whether it was or not in this case for the simple reason there is no evidence of the Form II being published as required by section 9(2)(b) of the Act in any event.

7. No one has argued the sending of the original certificate to the Commissioner of Forests could be adequate publication. Clearly it couldn't be. As is obvious from Mr Reeve's sworn statement (paragraph 11) no evidence of public display or public notification was received by the then Commissioner of Forests. We know from Zaku's evidence he never saw any public display of the determination (the Form II) nor was he sent a copy. Neither EDE nor AG and others say there was publication of the Form II. The inescapable conclusion is the Form II was never published, never put up for public display.

8. The publication of the determination is a very important part of the process leading to an acquisition of timber rights. Not only is it notice to the world at large and the local community in particular, time starts to run from the date of publication. Any person aggrieved by the determination only has one month from the date of publication to appeal[5] . If there is no publication, not only would a person who may be aggrieved not know by what date his appeal has to be lodged, he may not even know he is aggrieved. The publication of the determination is so important that I am firmly of the view that failure to publish as required by section 9(2)(b) of the Act renders the whole timber rights acquisition process void.

9. There has clearly been a comprehensive failure on the part of IPE. It would be entirely wrong to allow EDE and the Third Defendants to rely on the determination said to have been made by IPE in 2006. The timber rights determination by IPE is invalid.

10. There was also a failure by the then Commissioner of Forests. Having received the Form II which was hopelessly incorrect the Commissioner should have asked questions. The Commissioner should also have checked the details of publication. Instead the Commissioner seems to have become fixated by the response of the then Chief Magistrate to a request for a certificate of no appeal.

11. I have been referred to a decision of the Honourable Chief Justice when he sat as a Judge [6]. I have to say, with respect to the Honourable Chief Justice, he was wrong in that case. Section 10(3) of the Act imposes a duty on a Clerk to a Customary Land Appeal Court (and I can take judicial note that the Clerk is usually the resident Magistrate in any Province) to notify the Commissioner of Forests "forthwith" if an appeal against a determination by the appropriate Government is lodged. He is duty bound to inform the Commissioner and the appropriate Government of the result of any appeal and to send them both a copy. The Act imposes no duty on the Clerk to issue a certificate of no appeal. Section 11 states that the Commissioner shall recommend the appropriate Government grant approval (for the timber rights agreement), if he is satisfied the time for appeal has lapsed (subsection(a)) or any appeal has finally been disposed of (subsection(b)) and the agreement for granting of the timbers rights accords with the certificate issued pursuant to section 9 of the Act or he has a copy of the court order from the appeal (subsection (c)). How the Commissioner satisfies himself on these questions is a matter purely for the Commissioner but it does not involve a duty on the Clerk to the CLAC filing a certificate of no appeal. The Commissioner could certainly write to the Clerk and ask about any appeals but he is also entitled to come to the conclusion, if no notification has been received from the Clerk pursuant to section 10(3), that there is no appeal. If there has been a failure by the Clerk to notify the Commissioner, the failure would not be the Commissioner's and I doubt if he could be faulted if he decided to proceed with his recommendation without further contact with the Clerk. As I say, it is a matter purely for the Commissioner.

12. In this case the Commissioner should have been less concerned with the certificate of no appeal and more concerned with the proper processes under the Act. He should have queried the incorrect Form II. He should also have raised the question of publication. He must make the decision as to whether the time for appeal has lapsed and if he does not know the date of publication it is difficult to see how he could do so and it would therefore be impossible for him to meet his obligations under section 11(a). It is clear the Commissioner had received a copy of the letter from Zaku to the Provincial Secretary [7] and on reading the letter alarm bells should have rung very loudly. Instead the Commissioner put his obligation to be satisfied the time for appeal had lapsed upon the shoulders of the Clerk to the CLAC. If there had been no publication of the determination as appears from the paperwork sent to him, then it should have been clear to the Commissioner time had not started to run against Zaku.

13. I have no hesitation in declaring the issue of Felling Licence A10512 was invalid and accordingly the licence is hereby declared invalid.

14. The injunction granted by the court on 4th March 2008 as to logging in KS land is to remain as a permanent injunction.

15. There is no claim for damages in the Amended Claim and so I will wait for the parties to address me on what should happen with the remainder of the injunction granted in March 2008.

16. Costs should, as usual, follow the event and I order the Defendants to pay the Claimants' costs.

Chetwynd J

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^[1] See exhibits MR1 and MR2.
^[2] See MR3
^[3] Forest Resources and Timber Utilisation (Amendment) Act 2000
^[4] See exhibit MR 7 to the sworn statement of Moven Reeves filed 21^st May 2010
^[5] Section 10 of the Forest Resources and Timber Utilisation Act
^[6] Guadalcanal Resources Development Co Ltd v. Dalsol Ltd Civil cases 102 and 122 of 1996.
^[7] Exhibit MR 12 to the sworn statement of Moven Reeves