Pa'asi v Arasihanuau Land Trust Incorporated [2012] SBHC 7; HCSI-CC 479 of 2004 (31 January 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 479 of 2004

BETWEEN

JOSEPH PA'ASI, STEPHEN TAHUNIMAKE, JOHN
MAKAANA, ROMEO TOISUTA, WILLIE POIRARO,
And FRANCIS HASIUA (Representing Hanuaraua Tribe)
Claimants

And

ARASIHANUAU LAND TRUST INCORPORATED
First Defendant

And

JOY ITAIA (T/A Oceania Trading Company)
Second Defendant

And

ATTORNEY GENERAL
(Representing Commissioner of Forests)
Third Defendant

Mr Marahare for the Claimant
Ms Folaumoetui for the Third Defendant
Mr Nori (not appearing) for the First and Second Defendants

Date of Hearing: 19th October 2011
Date of Judgment: 31st January 2012

Ruling on preliminary issue

1. On 3rd August 2011 this matter came before me for a pre-trial conference. Directions were given for the hearing of a preliminary issue which might well dispose of the whole matter. I have been unable to find a perfected copy of the order made. Needless to say very few of the directions given in open court on 3rd August 2011 were complied with. An added difficulty has been Mr Nori's poor health. He was unable to attend the hearing on 19th October. As this matter has been going on for some time I agreed to deal with the preliminary issue on the submissions made, including those prepared for the pre-trial conference, and sworn statements already filed.

2. These proceedings were commenced by Summons filed in November 2004. Initially the claim was for permanent injunctions and allied declarations. This was on the basis there had been "no trespass". As the matter progressed there was an alleged trespass and the claim has been amended. There have been a number of interlocutory applications heard by the court and the case has been before the Court of Appeal as well. In a judgment dated 15th October 2007 the Court of Appeal said, "It is our view what is important is that the parties should get on with this case". Later the court added, "It is therefore very important that the parties should comply with the procedural rules in the next stages of this case and that the matter should come before the High Court as soon as possible". Four years on we are still looking at preliminary issues and not getting to the main cause of action.

3. This case is all about logging and the processes that should be followed in order for there to be valid authorities from the landowners and the Government permitting the felling and export of timber from customary land. Those processes are set out in the Forest Resources and Timber Utilisation Act [Cap. 40] as amended by the Forest Resources and Timber Utilisation (Amendment) Act 2000 [No. 6 of 2000] ("the Act"). There has been extensive litigation in this jurisdiction about all aspects of the legislation and one would be forgiven for thinking the provisions contained in the Act were well settled.

4. The customary land involved in this matter is owned by the Hanuaraua tribe. It is situated in West Are'are Malaita Province. From the joint evidence and submissions in this case it is accepted that in West Are'are tribal land can be divided into smaller areas known as te'ete'es. Each te'ete'e has a head or chief. It also seems to be generally accepted that there can be a Head Chief of the whole tribal land. There have been a number of referrals to the West Are'are chiefs (particularly the Arahanimane council of Chiefs) about the rights and powers of the Head Chief vis-a-vis the various heads or chiefs of the te'ete'es. There is no need to go into the detail of the decisions by the West Are'are chiefs, they are self- explanatory. Many of the problems with this case have arisen because they have been ignored when parties considered the decisions on custom to be an inconvenience rather than a benefit. This court is not concerned with matters of custom and the preliminary issue that needs to be dealt with is this. Did the published determination by the Malaita Provincial Executive in accordance with the Act include Hanuaraua land? It is necessary to look at what is required and what actually transpired at each stage of the process set out in Part III of the Act.

5. Section 7 requires anyone who wishes to acquire timber rights over customary land to make an application to the Commissioner of Forests. This is commonly known as a Form 1 application. The Form 1 application in this case was submitted on or about 3rd February 2003 by Arasihanuau Land Trust Incorporated, the First Defendant. The order made in August of this year required full details of the surviving members of the organisation to be filed. No such details were filed so we do not know who the members are today. The Form 1 is exhibited as JP1 to the joint sworn statement of Joseph Pa'asi and Stephen Tahunimake filed 21st October 2004. The land over which timber rights were being sought was described as between both Si'ua and Waisisi Rivers in West Are'are, Ward 25 Malaita Province. There is no dispute this includes Hanuaraua land although there may be some minor disagreement about the exact boundaries of the te'ete'es comprising the whole. It then recites the names of the persons with whom preliminary discussions have taken place. It says they are, "The following chiefs, representing each of the landholding units within the proposed concession area, Francis Aniratana, Solomon Naotoro, John Kereha'i, Jack Moramai, John Hero'au, Ko'uarosi, Raroisu'u and Michael Orita'imae". The names of these chiefs are not associated with any particular area of land or te'ete'e. The Commissioner of Forests gave his consent and forwarded a copy of the Form 1 to the Malaita Provincial Executive ("MPE") in accordance with section 7(2) of the Act.

6. It appears to be common ground the Form 1 was not received by MPE until sometime in May 2003. Section 8(1) of the Act requires that once received, "..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 for a meeting to be held with the customary landowners and the applicant to determine matters specified in subsection 3". The meeting is commonly known as a timber rights hearing. MPE fixed the time for the meeting as 24th July 2003.

7. Section 8(2) of the Act then requires the appropriate Government to give notice of the meeting within one month of receipt of the Form 1 from the Commissioner of Forests. It is to do so in a manner it "considers most effective". According to the sworn statement of Albert Alick Nori filed 29th November 2004 it did so by a notice which is exhibited as AAN3. That document is something of a puzzle. It is intituled The Forest Act 1999 (No 3 of 1999) Schedule 1 Form A (Regulation 4). The title refers to no sessional or subsidiary legislation known to me. It then has a heading "Statement of Customary Ownership". It goes on to say, "Pursuant to section 76(3) and (4) of the Forest Act I hereby publicize the Statement of Ownership in relation to Customary Land. It then gives the following details, "Hanuapusu, Tariohu, Siararaitoro, Ohorraha, Suirairu, Hanorarumu, Hanuaraua and Huro". The form then states that persons objecting to the claim of the group, or persons identified......have two months to refer their disputes ..... to the Chiefs in accordance with Section 12 of the Local Courts Act." It then says the Timber Rights Hearing will be held on 24th July 2003 but it does not say where. The form exhibited is not one I recognise, it refers to legislation I don't think exists and it gives no details of the landowners, just the land. Despite this puzzle it is beyond dispute that some, if not all of the Claimants were aware of the timber rights hearing and attended on the specified date.

8. At the timber rights hearing the appropriate Government is required by section 8(3) of the Act to discuss and determine with the customary landowners;

(a) whether or not the landowners are willing to negotiate for the disposal of their timber rights to the applicant;

(b) whether the persons proposing to grant the timber rights in question are the persons, and represent all the persons, lawfully entitled to grant such rights, and if not who such persons are;

(c) the nature and extent of the timber rights, if any, to be granted to the applicant;

(d) the sharing of the profits in the venture with the landowners; and

(e) the participation of the appropriate Government in the venture of the applicant.

9. The minutes of the timber rights hearing are exhibited as AAN4 to Mr Nori's sworn statement [1]. No one has suggested the exhibit does not accurately describe what was discussed at the meeting on 24th July 2003. The Minutes say, "Only six (6) customary lands were given OK or determine to negotiate their customary rights to the Arasihanua Land Trust, whilst the other two (2) was put aside due to absent of proper consultant says the other two (2) representative, pending internal tribal discussion". Later the minutes state, "Six Customary lands are certainly allowed their land to come under the Arasihanua Land Trust, except the other two Land namely Surairu Customary Land and Hanuaraua customary land is yet to determine, pending proper consultation within their tribe or clan, propose customary lands is eight". This latter excerpt from the minutes is in the form of an answer to a question. The question is noted as, "Whether the landowners want to negotiate the sale of Timber Rights to the applicant". That is the "question" set out in section 8(3)(a) of the Act set out above. The answer seems to deal with a combination of both sections 8(3)(a) and 8(3)(b). The rest of the minutes certainly touches on the determinations required by sections 8(3)(c), (d) and (e).

10. There is a degree of ambiguity in the minutes as to what was "determined" at the timber rights hearing. There is a recent sworn statement from the Hon. Stanley Sofu, he was the Chairman of the meeting, in which he explains what he remembers being determined by the MPE. Unfortunately some of what he says is contradicted by the documentation exhibited in sworn statements by others. He says there were eight land areas submitted in the Form 1. As can be seen from paragraph 5 above there was only one area described, that being the land "between both Si'ua and Waisisi Rivers in West Are'are, Ward 25 Malaita Province". There were eight persons named in the Form 1. He remembers he read out the names of the land areas and proposed representatives. The minutes suggest that was done by the Secretary. He also believes there were no objections raised at the meeting. It is apparent from the minutes there was no agreement about two areas, Surairu and Hanuaraua. He states Form 2 determinations are not issued during timber rights hearings. The one exhibited as AAN5 to Mr Nori's sworn statement is dated 24th July 2003, the day of the hearing. Whilst I accept Mr Sofu was no doubt trying to be helpful, what he sets out in his sworn statement cannot be accepted as actual fact. It must also be bourn in mind he made his sworn statement some eight years after the event.

11. The only conclusive evidence of what was determined at the meeting of 24th July 2003 is the certificate the provincial executive was required to issue. That is the clear effect of section 9(2) of the Act.

On making its determination under section 8(3), the appropriate Government shall as soon as practicable –

(a) issue a certificate in the prescribed form setting out its determination;

(b) give the public notice of its determination in the same manner as notice under section 8(2) was given; and

(c) forward the original certificate to the Commissioner and a copy to the applicant

As has been mentioned, a copy of the Form 2 certificate issued by MPE following the meeting of 24th July 2003 is exhibited as AAN5 to Mr Nori's sworn statement filed 29th November 2004. There has been no suggestion the copy so exhibited is incomplete or is not otherwise an exact copy. It says the determination made by MPE in relation to section 8(3) is that Michael Oritaimae is entitled to grant timber rights in relation to Huro land, Moramai Paina can do so for Hahoramuhua land, Kouresi can do so for Ohoraha land, Raroisuu can do so for Siararaitoro land, Solomon Naotoro can do so for Tahiohu land and Francis Aniratana can do so for Hanoapusu land. The Form 2 certificate is conclusive evidence that MPE made no determination in respect of Hanuaraua or Surairu lands. If MPE intended to consider these lands at a later date this should have been made clear in the certificate or at the very least, by a covering letter or note.

12. The importance of a Form 2 certificate cannot be understated. It gives rise to a right of appeal under section 10 of the Act. It triggers further action by the Commissioner of Forests under section 11 which in turn triggers further action by the appropriate Government under section 12. Under section 11 the Commissioner has to be satisfied that there is no appeal (pursuant to section 10) or that an appeal has been disposed of and;

(c) the agreement for the granting of the timber rights referred to in such certificate has been duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of, such agreement accord with such certificate or, where there has been an appeal under section 10 with the order of the court determining such appeal

Once he is satisfied he then recommends to the appropriate Government that they grant approval to such agreement. Once the appropriate Government receives the recommendation pursuant to section 11 and a duly stamped agreement then in accordance with section 12 it issues a further certificate which is the Certificate Approving Timber Rights Agreement Negotiation or Form 3. It is the Form 3 certificate which has to be sent to the Commissioner which finally authorises him to issue the licence applied for under section 5. What this means is that there should be no substantial mis-match between Forms 1, 2 and 3, particularly Forms 2 and 3. In other words, if the Form 3 does not mirror the determination certified by Form 2 then it is defective. The appropriate Government cannot certify approval of the negotiations if they are between persons who are not named in the Form 2. It would defeat the whole object of Part III of the Act if an appropriate Government could ignore the effect of its determination, or an appeal from it, and issue a Form 3 certificate in respect of different persons and/or different land.

13. In this case the Form 3 certificate is exhibited as AAN 8 in Mr Nori's sworn statement. It is dated 11th November 2003. It certifies that Chief John Hero'au is the representative of Hanuaraua tribe or land and Chief John Kereha'i is the representative of Surairu tribe or land. As set out in paragraph 11 above, those two persons and those two lands were not part of any determination as certified by the Form 2 dated 24th July 2003.

14. There is a second Form 2 certificate. That is exhibited as JP11 to the joint sworn statement of Joseph Pa'asi and Stephen Tahunimake filed 21st October 2004. It is dated 3rd September 2004. This postdates the Form 3 certificate by almost 12 months. Obviously then the Form 3 certificate cannot relate to the September 2004 determination. The question is not asked directly in this matter but can there be more than one determination in respect of one timber rights hearing? There does not appear to be anything in the Act expressly prohibiting the issue of more than one Form 2 but the provisions of section 9(1) of the Act require the appropriate Government to recommend the Commissioner reject any application where no agreement is reached between the applicant and the customary landowners. Thus, if there is no possibility of agreement the appropriate Government must recommend rejection. If there is partial agreement, as here, and a preliminary determination is a possibility it would be far more preferable if the appropriate Government adjourned the timber rights hearing until all issues could be resolved. It seems to be courting disaster to make determinations piecemeal. That is what MPE should have done in this case. MPE should have told all those interested in the timber rights hearing to come back when all tribal consultations had been completed. Proper notices would have to be issued in respect of the adjourned hearing and despite what the Hon. Sofu says in his sworn statement, it would be essential that the original meeting was re-convened as a full timber rights hearing. Whilst MPE may have saved, "some $6,000" in expenses its failure to properly re-convene the timber rights hearing in this instance has involved the parties in many, many thousands of dollars in legal fees and it has also resulted in 3 full hearings and countless interlocutory hearings before the High Court and a full hearing before the Court of Appeal. At the very least, if there is the slightest possibility the Form 2 certificate of determination may be altered the appropriate Government should note and explain that on the Form 2 itself. If a second Form 2 is issued it should be clearly noted that it is an "amendment" and refer to the initial determination. If a Form 3 is issued in the interim, it too should note the possibility of change and of course it cannot refer to areas where there has been no determination.

15. Given the findings set out in paragraph 13, if it were necessary to look at the licence issued by the Commissioner certain observations could be made. A copy of the licence is exhibited as JP10 to the joint sworn statement of Joseph Pa'asi and Stephen Tahunimake filed 21st October 2004. It is dated 11th December 2003. Presumably it was issued as a result of the Form 3 certificate. As the Form 3 was defective, it included lands which were not the subject of any determination, a licence based on it must also be defective. The Commissioner can in no way be satisfied "the applicant has obtained the approved agreement referred to in Part III" [2].That conclusion seems to follow as sure as night follows day.

16. The preliminary issue can be dealt with this way. The Form 2 certificate of determination dated 24th July 2003 did not include a determination about Hanuaraua land or Surairu land. Any further or subsequent certificates required under the Act which purport to include Hanuaraua land or Surairu land are defective and a nullity. The Form 2 certificate of determination dated 3rd September 2004 did include Hanuaraua land. Any further or other certificates issued or dated prior to 3rd September 2004 which purport to include Hanuaraua land are defective and a nullity.

17. Whilst that may dispose of the preliminary issue it is unlikely to dispose of the whole case. However it may persuade the parties to reach some sort of compromise and consider a consent order. The matter will be adjourned to a date a month or so ahead. If a consent order is forthcoming which does dispose of the case then the hearing can be vacated. On that basis I will says costs are in the cause.

Chetwynd J

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^[1] Filed 29^th November 2004
^[2] See Section 5(2)(b) of the Forest resources and Timber Utilisation Act