Kolombangra Island Bio-diversity Conservation Trust Board (Incorporated) v Sucess Company Ltd and Others [2010] SBHC 82; HCSI-CC 282 of 2010 (26 November 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 282 of 2010

BETWEEN

KOLOMBANGRA ISLAND BIO-DIVERSITY
CONSERVATION TRUST BOARD (INCORPORATED)
(Represented by Ferguson Vaghi)
Claimant

And

SUCCESS COMPANY LTD
First Defendant

And

XIANG LIN (SI) TIMBER LTD
Second Defendant

And

ATTORNEY GENERAL
(Representing Commissioner of Forest Resources
and Director of Environment and Conservation)
Third Defendant

Mr D Hou for the Claimant
Mr P Tagini for First and Second Defendant
Mr D Damilea for the Third Defendant

Date of Hearing: 15th November 2010
Date of Judgment: 26th November 2010

Judgment

1. Kolombangara Island Bio-diversity Conservation Trust Board (known as KIBCA) is an organisation incorporated under the Charitable Trusts Act [Cap 115] [1]. The aims and objects of the association are set out in its constitution [2]. I will not recite them here as they are self-evident from the name of the association. KIBCA is the claimant in this case. The first Defendant holds a "logging licence" over land on Kolombangara Island. The Second Defendant is a logging contractor employed by the First Defendant. The Third Defendant represents both the Commissioner of Forests and the Director of Environment and Conservation Division from the Ministry of Environment, Conservation and Meteorology.

2. The claim was filed on 28th July 2010. An Amended Claim was filed 25th August. The relief sought (in the latter) is for declarations relating to the Environment Act 1998 (the Act), injunctions against the First and Second Defendants and mandatory orders against those represented by the Third Defendant. I dealt with an application for interlocutory orders on 27th August. I am now dealing with the substantive case.

3. The declaration sought in paragraph 1 of the claim for relief is not one that can be made in the form set out by the Claimant. The first part seeks a specific answer to a hypothetical question. It asks the court for an interpretation of the law as set out in the Act but without referring to specific circumstances. As regards the paragraph 2, I decline to make a declaration in the terms set out.

4. Having said that, on 25th August 2010 I granted an injunction to the Claimants against the First and Second Defendants until such time as the latter had obtained a development consent pursuant to S.19(1) of the Act. Logging operations (somewhat bizarrely mentioned under the heading Fishing and Marine Product Industry in the Second Schedule of the Act) are prescribed developments. As a prescribed development the logging operation that was being undertaken on Kolombangara Island by the First and Second Defendants was caught by sections 18 and 19 of the Act.

5. Apparently all logging operations are prescribed developments under the Act whether they began yesterday or 10 years ago and so no evidence was necessary as to when the logging on Kolombangara Island commenced. Any developer, "carrying on an existing prescribed development" shall, if the Director requires it, provide what is specified in subsection 18 (a) and, unless exempted by the Director, what is specified in subsection 18(b). The accepted evidence was that neither the First nor the Second Defendant had complied with the Act. If logging has not commenced but is proposed then the developer must comply with section 17 of the Act. Section 19(1) prohibits a developer commencing or continuing to carry out any prescribed development subject to the exceptions in sub sections (a), (b) and (c). There are criminal sanctions for breaches of the Act.

6. Notwithstanding the criminal sanctions, given the provisions of section 22 in regard to publication (of any public environmental report required by the Act) it is right that anyone "whose interests are likely to be affected " by the prescribed development should be able to seek the courts assistance in stopping it if it is in breach of the Act. That is basis on which the injunctive order was granted to the Claimants in respect of the First and Second Defendants. Not to prevent breaches of the Act by injunction would deprive those whose interests are likely to be affected of their right of public scrutiny and appeal as set out in sections 22, 24 and 32 of the Act. Of course the injunction cannot be a permanent injunction. The order can only subsist whilst the First and Second Defendants are in breach of the Act. Once the breach comes to an end, either be reason of the defendants' actions (i.e. obtaining a development consent) or by reason of the Directors actions (i.e. by him granting exemptions) the injunction will cease to have effect.

7. Turning now to paragraph 7 of the claim for relief, no orders can be made in the terms sought by the Claimant. As mentioned above there is an appeal process for anyone, "who disagrees with any decision of the Director". Judicial review would lie in respect of any decision by the Minister in respect of any appeal against the appeal from the Director as set out in section 32. Actively doing nothing is also conduct which might lead to judicial review. If the Director declined to make or refused to consider making a request pursuant to his powers under section 18 of the Act (or any other part of the Act) then he may well lay himself open to applications for mandatory orders. However until there is some course of action to seize upon, some decision made then, apart from the provisions of the Crown Proceedings Act, it is inappropriate to make the order in the very general terms prayed. My comments would also apply to paragraph 6 of the claim for relief.

8. As for paragraph 4 of the claim for relief, I dealt with that extensively in my decision of 27th August (at paragraph 4). For the reasons set out in my August decision the Claimants are entitled to an order in the terms prayed.

9. As for the remaining claim for relief, at paragraph 3, I would be prepared to make a declaration that in this case the Claimants are not required to obtain the consent or fiat of the Attorney General. I touched on that issue in my August decision and I have touched on it again above. There is no reason I can see why someone whose interests are likely to be affected should need to have the consent of the Attorney General to go to court to protect those interests.

10. In summary then, I decline to make orders in respect of paragraphs 1, 2 (a) and (b), 6 and 7 of the prayer for relief. I make a declaration the Claimant is not, in this case, required to obtain the consent or fiat of the Attorney General to seek orders against the First and Second Defendants preventing breaches of the Act and the Forest Resources and Timber Utilisation Act. I make orders in the terms of the interlocutory orders set out in paragraphs 4 and 5. As regards paragraph 4 the words, "except in accordance with the specific approval of the Commissioner of Forests" should be added to the order.

11. Dealing with costs, I am of the view that each side should bear their own costs. I am prepared to hear argument on that issue.

Chetwynd J

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^[1] Certificate of incorporation dated 4^th May 2009 exhibited as FIV16 to the sworn statement of Ferguson Isaac Vaghi filed 23^rd August 2010
^[2] See Exhibit FIV15 ibid