Far South Holding Ltd v Attorney General [2011] SBHC 14; HCSI-CC 191 of 2010 (30 March 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 191 of 2010

BETWEEN

FAR SOUTH HOLDINGS Ltd
Claimant

And

ATTORNEY GENERAL
(Representing Commissioner of Forests and Malaita Provincial Executive) First Defendant

And

MAPO DEVELOPMENT COMPANY
Second Defendant

Mr Rano for the Claimant
Ms Folaumoetui for the First Defendants
Mr Apaniai for the Second Defendant

Date of Hearing: 14th March 2011
Date of Judgment: 30th March 2011

1. This is an application for leave to file a claim for judicial review. It is required because the "Executive Actions" complained of took place in 2004 and 2006. The Rules [1] and in particular Rule 15.3.8, require the claim to be made within 6 months of the decision sought to be reviewed or quashed. A Category C claim was filed on 25th May 2010. The Claimant seeks to amend the claim.

2. A summary of the events to date shows that in or about August 2004 the Second Defendant posted a notice at U'uimenu Village South Malaita. The notice is exhibited as DR1 to the sworn statement of Derrick Romwane filed 7th October 2010. He says that a meeting to "determine timber rights" was held by Malaita Provincial Executive ("MPE") on October 20th 2004. MPE published it's determination on 16th December 2004. The Malaita Magistrate's court informed the Commissioner of Forests ('the Commissioner") that no appeals had been lodged in respect of the determination. The Second Defendant entered into a Timber Rights Agreement with those named in the determination. A licence (No. A10415) was issued by the Commissioner on 1st May 2005. During 2009 the logging operations were carried on some lands and were completed in December 2009.

3. In 2008 the Claimant lodged an application with the Commissioner to negotiate timber rights agreements covering areas of Small Malaita in Wards 21, 22 and 23. Details are set out in exhibit EO 1 attached to the sworn statement of Elijah Owa filed 8th October 2010. A notice was published about the timber rights hearing on 9th July 2008 which meeting was scheduled for 9th September 2008. The minutes of the meeting are exhibited as GE 4 to the sworn Statement of Gilbert Eremae filed 17th June 2010. It is noted Mr Tony Bobby sat on the panel of both hearings. A determination was made and published shortly after the meeting (GE 5). Agreements appear to have been signed with the landowners in December 2008. The Commissioner issued a licence to the Claimant in June 2009 and logging commenced. The evidence of Mr Owa is sometime in April 2010 logging operations were to commence on land he names as Ngadinimwana. It was discovered logging had already taken place there. Mr Eremae in his sworn statement says he is a landowner and he became aware of logging on his land by the Second Defendant sometime in July 2009. There is a sworn statement by John Hoasi filed 17th June 2010. It relates to another area of land as he is part of the Taheholoanimae tribe. He became aware of logging on part of his tribes land in June 2009. He told the Claimant about it in November 2009.

4. All this leads to the conclusion that time began to run against the Claimant for the purposes of Rule 15.3. 8 from October 2004 (when the decisions complained were made) at the earliest or April 2010 (when the Claimant became aware of the decisions complained of) at the latest. I do not need to address that point in detail at this stage. In my view the detailed consideration on the issue of delay is more properly dealt with at the conference called by the court as required by Rule 15.3.16. At this stage all I need consider is whether there has been delay and whether the proposed Claimant will be able to argue the delay has not been undue. In this case it is clear that no matter what view the court eventually takes as to when time begins to run against the Claimant, there are arguments on the question of undue delay which may satisfy the court on that issue at the Rule 15.3.16 conference.

5. The same considerations arise in respect of the other issues set out at Rule 15.3.18. All I need be satisfied at this point is whether there are reasonable arguments which could be advanced and which might satisfy the court.

6. The more important consideration at this stage is whether it is in the interests of justice to allow the Claimant an extension of time within which to file the claim for Judicial Review. The issues to be raised according to the draft pleadings [2] are of sufficient importance to allow this matter to proceed. They relate to the procedures and processes contained in the Forest Resources and Timber Utilisation Act [Cap. 40] ("the Act"). Although there has been considerable litigation in this jurisdiction involving the Act this case seems to raise important questions. If the court eventually finds the Defendants did not comply with the Act there are important consequences for all parties. If the court were to eventually find that all procedures processes were duly and correctly completed the case raises important questions as to the efficacy of the Act. It is an Act which controls and regulates the timber industry and if it does not do so effectively that will be a matter of public concern.

7. I will grant leave for the Claimant to commence judicial review proceedings and to amend its pleadings accordingly. The amended claim shall be filed and served within 14 days of the date of this ruling. Thereafter the Respondents shall have the time set out in the Rules to respond.

8. The costs to date shall be reserved.

Chetwynd J

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^[1] Solomon Islands Courts (Civil Procedure) Rules 2007
^[2] See Exhibit EO6 to the sworn statement of Elijah Owa