Talasasa v Attorney General [2012] SBHC 85; HCSI-CC 124 of 2011 (25 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 124 of 2011

BETWEEN

RONALD BEI TALASASA Snr
Claimant

And

ATTORNEY GENERAL
(Representing Minister of Lands and Housing)
First Defendant

And

ATTORNEY GENERAL
(Representing Western Provincial Assembly)
Second Defendant

Mr Laurere for the Claimant
Mr Firigeni for the First and Second Defendants

Date of Hearing: 4th May 2012
Date of Judgment: 25th May 2012

Judgment

1. On 1st November 2010 the Minister of Lands, the First Defendant, made a declaration pursuant to section 71(1) of the Lands and Titles Act [Cap. 133] ('the Act"). The declaration is exhibited to a sworn statement by Henry Kala [1]. This is the first step in the procedure set out in the Act to acquire land by compulsory purchase. Section 71, in full, states:-

71.—(1) Whenever it appears to the Minister that any land is required for any public purpose, he may make a declaration to that effect and require the same to be published in such manner as he shall think fit.

(2) The declaration shall specify (either by reference to a plan or otherwise) the boundaries and extent of the land so required, and the general nature of the public purpose for which it is required.

(3) As soon as may be after the declaration has been made, the Commissioner shall cause to be posted, in prominent positions on or near the boundaries of the land specified in the declaration, notices in the prescribed form stating the fact that the declaration has been made and drawing attention to its effect and to the right to claim compensation conferred by section 79 and to the liberties and restrictions conferred and imposed by section 78.

What is in issue in this case can be simply stated, was the land to be acquired for a "public purpose"? Of course as we can see from 71(2) the Minister is required to specify, in general terms, the "nature of the public purpose for which it is required".

2. The declaration by the Minister is by reference to schedules, and there is nothing wrong in that, with the public purposes being specified in the Second Schedule. That reads:-

"The land areas described in this declaration are required for purposes of marine wildlife conservation and protection that enhances tourism development activities"

Lest it be thought strange by the reader it should be mentioned that the "land" specified in Schedule One included "areas below the high water mark" and, "the fringing reef and seabed". The fact is mentioned simply because it might be thought an unusual concept that an area of land is required for marine wildlife conservation. The distinction is of no real consequence in any event. So, the full question indicated at paragraph 1 above is this; is marine wildlife conservation and protection enhancing tourism development a public purpose.

3. In order to answer the question some reference must be made to the background surrounding the making of the Minister's declaration. It is set out in Mr Kala's sworn statement. He tells of how the Western Provincial Government made a request to the Solomon Islands National Government in connection with "an environment sensitive tourism project". (See paragraph 2 of the sworn statement). The request was in the form of a letter from the Premier of Western Province. The letter is annexure HK1. The Premier explains "Solomon Island Resorts Limited .........have proposed to further expand with international standard island resort development..." He goes on to say the proposal involves "overwater bungalows". He observes, "...areas below high water mark are usually regarded as customarily owned". Even though "the company owns a 50 year fixed term estate over Kennedy Island" the area sought to be compulsorily purchased was, "...outside of its legal boundary". The long and short of it is, Solomon Island Resorts Ltd ("SIRL") wants to build a tourist resort, it owns the land but not the area below high water. As they want to build over water bungalows this presents a major problem.

4. The resort will have a "lagoonarium" as well. This is achieved by basically enclosing some or all of the area with a large net with four inch holes. The object of the exercise is to "protect the surrounding reefs and marine life from over fishing".

5. The proposal is tied into the Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security ("the CTI-CFF"). The Second Ministerial Meeting of the CTI-CFF took place in November 2009 at Gizo and the joint Ministerial statement which resulted was adopted by all the governments that took part including, of course, the Solomon Islands Government. This was to advance the 10 year Regional Plan of Action agreed upon in an earlier summit held in May 2009. The five major goals of the Regional Plan of Action are apparently [2]:-

i) Priority Seascapes designed and effectively managed

ii) Ecosystem Approach to Management of Fisheries & other marine resources fully applied

iii) Marine Protected Areas established and effectively managed

iv) Climate Change Adaption measures achieved

v) Threatened Species status improving

6. In submissions the Defendants argue this case is all about marine protection. There must be a shift from logging as a revenue source and the way forward is for there to be environmentally sensitive tourism. Given the financial resources available to Solomon Islands this requires a public/private partnership as envisaged in the proposal made by Western Province. For these reasons they say the acquisition was for a public purpose.

7. There is no definition or guidance in the Act as to what constitutes a public purpose. In some old English legislation there is mention of what is or is not a public purpose. For example the Crown Lands Act of 1927 lists a number of types of buildings and land use; such as places of religious worship, museums, public baths, reservoirs and drains, which are accepted as involving a public purpose. The list was obviously not intended to be exhaustive or definitive because after the extensive list (those items mentioned above are a very small sample of what is in the list) the draftsman has helpfully added the phrase "and any other public purpose".

8. There is an old Indian case[3] where Batchelor J remarked:

"In my opinion, the phrase, whatever it may mean, must include a purpose, that is, an object or aim in which the general interest of the community, as opposed to the particular interest of individuals, is directly or vitally concerned".

9. There are, fortunately, more modern precedents. These are to be found in both the English and Australian law reports. They tend to be about planning law, or as it is called in the UK, Town and Country Planning, but they nonetheless provide guidance in answering the question of whether the acquisition in the present case was for public purposes. The most recent case in the UK Supreme Court is R (on the application of Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] 4 All ER 931. The brief facts are that the Council (Wolverhampton City Council) owned the site of a derelict hospital it wanted to develop. Two large supermarkets, Tesco and Sainsbury, owned parts of another site (the supermarket site) close to but entirely separate from the Council's site. Neither of the supermarkets could economically develop their portion of the supermarket site on its own. Tesco came to an arrangement with the Council whereby the Council would compulsorily purchase Sainsbury's portion of the supermarket site and then transfer that portion to Tesco. Tesco could then develop the supermarket site and in return would also develop the Council's derelict hospital site. The Supreme Court cited earlier decisions in England where the approach of the courts was set out;

"Compulsory acquisition by public authorities for public purposes has always been in this country entirely a creature of statute: see Rugby Joint Water Board v Foottit, Rugby Joint Water Board v Foottit, Rugby Joint Water Board v Shaw-Fox [1972] 1 All ER 1057 at 1062, [1973] AC 202 at 214. The courts have been astute to impose a strict construction on statutes expropriating private property, and to ensure that rights of compulsory acquisition granted for a specified purpose may not be used for a different or collateral purpose: see Taggart 'Expropriation, Public Purpose and the Constitution' in The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (1998) (eds Forsyth and Hare) p 91.

In Prest v Secretary of State for Wales (1982) 81 LGR 193 at 198 Lord Denning MR said:

'I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands ...'" [4]

That mirrors exactly what is said in section 8 of our Constitution.

8.—(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say—

(a) the taking of possession or acquisition is necessary or expedient in the interests of defence, public safety, public order, public morality, public health, town or country planning or the development or utilisation of any property in such a manner as to promote the public benefit; and

(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition—

10. Where there is apparent authorisation by Parliament, in other words legislation permitting compulsory purchase, the approach which needs to be adopted by the courts was described by Lord Collins, quoting the words of another member of the Court in Prest,:

"And Watkins LJ said (at 211):

'The taking of a person's land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought.'"

11. Lord Collins then cited an Australian case:

Recently, in the High Court of Australia, French CJ said (in R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12, (2009) 237 CLR 603):

[40] Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretative approaches where statutes are said to affect such rights ...

[42] The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights ...

[43] The terminology of "presumption" is linked to that of "legislative intention". As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights ...'

The facts of the Parramatta case were similar to the Sainsbury case. There was a planned redevelopment and Parramatta Council proposed to "fund" it by compulsorily purchasing property and then selling that property to the developer. In both cases the purpose for the acquisition in respect of the specific properties acquired was the key issue. In the Sainsbury case, and on more detailed application of intricate planning legislation, the Supreme Court said that whilst cross funding was permitted under the UK Town and Country Planning legislation it had to be for the site being developed and where the properties compulsorily acquired were situated;

"[30] So also it is common ground that both schemes of redevelopment on the Raglan Street site would promote and improve the economic, social and environmental well-being of the city and therefore satisfy the requirement in s 226(1A) that a local authority must not exercise the power unless it thinks that 'the development, re-development or improvement is likely to contribute to the achievement' of the well-being objects set out in the subsection. It is also agreed that the redevelopment of the Royal Hospital site as proposed would bring well-being benefits to the council's area, but Sainsbury's says that, contrary to the approach of the Court of Appeal, those well-being objects are not within s 226(1A), because they do not flow from the proposed redevelopment of the Raglan Street site."

In the Parramatta case the majority of the court held;

"96 No doubt the acquisitions of the Fazzolari land and the Mac's land are only two steps in a much larger arrangement recorded in the development agreement. And the development agreement can be described as being directed to the end of implementing the Master Plan for the development of Civic Place. It is therefore possible to describe each of the steps for which the development agreement provides as a step towards implementing the Master Plan or effecting the development of Civic Place. But when the Council gave proposed acquisition notices to Fazzolari and to Mac's, the Council had made the development agreement with Grocon. The development of Civic Place for which the appellants' land was to be acquired is for the development as the Council and Grocon stipulated in the development agreement. Stating the purpose of the acquisition as being to implement the Master Plan or to develop Civic Place, or at some other similar level of generality, must not be permitted to obscure the fact that when the acquisitions were proposed a precise form of development had been agreed. Very particular terms governing both acquisition and disposition of the appellants' land had been stipulated in the development agreement.

97 The steps which the development agreement requires to be taken, of the Council declaring itself trustee of the Trust Land (including the Fazzolari land and the Mac's land) on the terms stipulated, in return for Grocon providing the agreed consideration, are properly described as a "re sale" of the land. Of course the word "re sale" suggests the need to identify a prior sale to the Council. But it is important to recognise that "re sale" is used in the context of acquisition by compulsory process. The compulsory acquisition of the land by the Council is an acquisition for which the Council must pay monetary compensation. The disposition of the land by the Council to Grocon is a disposition in return for the money and money's worth which the development agreement obliges Grocon to provide. That disposition is properly called a "re sale".

98 It may be observed that the provisions of the development agreement which stipulate the parties' obligations are more elaborate than a simple agreement to buy an identified piece of land for a stated price. But neither the elaboration of the agreement, nor the attachment to it of the descriptive title of "financial structure", denies that the development agreement provides for the Council to first acquire the Fazzolari land and the Mac's land by compulsory process, and then to dispose of the land to Grocon in return for money and money's worth. Neither the elaboration of the terms nor the identification of the arrangement as providing a financial structure detracts from the conclusion that the disposition to Grocon is a "re sale" of the land.

99 For these reasons it follows that Biscoe J was right to hold that the purpose of the acquisitions, in these cases, was to transfer the land to Grocon for the stipulated consideration. That is, the land was to be acquired for the purpose of re sale."

12. In an earlier Australian case Clunies-Ross v. Commonwealth of Australia (1984) 155 CLR 193; [1984] HCA 65, the facts were intriguing. The case involved the Cocos (Keeling) Islands. Mr Clunies-Ross used to own the islands. There is reference in the case reports to "anachronistic, feudal relationships". In 1960 there was a declaration by the United Nations General Assembly [5] which led to colonial countries making arrangements for their colonies to gain independence (including of course Solomon Islands). As part of that move in 1978 Clunies-Ross sold much of the islands to the Commonwealth of Australia. He and his family retained a residence on the main island of Home Island. The Australian Government then arranged for there to be a vote by the people living on the islands on an Act of Self-Determination. As Murphy J notes in his judgement, "It is notorious that for the purposes of the Act of Self-Determination the islanders of the Cocos (Keeling) Islands had requested that the plaintiff be kept off the islands...". In order to achieve that end the government decided to compulsorily acquire Clunies-Ross's remaining property on the islands. The majority of the Court (Murphy J dissenting) found;

"It follows that the power compulsorily to acquire land for a public purpose which is conferred by the Act is limited to a power to acquire land for some purpose related to a need for or purposed use (be it active or passive) or application of the land to be acquired. It does not extend to the acquisition of land merely for the purpose of depriving the owner of it and achieving some purpose in respect of which the Parliament has power to make laws or, in relation to land in a Territory, a purpose in that Territory."

13. These cases indicate the question of whether land is acquired for public purposes is one of interpretation. In the Parramatta case the Court held that the correct approach to interpretation had long been established both in Australia and in the English courts;

"The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights. It was expressed by Griffith CJ in Clissold v Perry, [6] a land resumption case, thus:

'In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest.'

The presumption has been restated on more than one occasion in this Court. That does not, of course, authorise the court to put to one side "the unambiguous effect of the words which the Parliament has seen fit to use.

"As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a "principle of legality" and has been described in Australia as an aspect of the rule of law".

14. It is also well established the acquisition must only be for a purpose permitted by law;

"There is no doubt that where a body has a power of compulsory acquisition which is expressed or limited by reference to a particular purpose, then it is not legitimate for the body to seek to use the power for a different or collateral purpose: see Simpsons Motor Sales (London) Ltd v Hendon Corp [1963] 2 All ER 484 Page 11 at 488, [1964] AC 1088 at 1118 per Lord Evershed. In Galloway v London Corp (1866) [1866] UKLawRpHL 4; LR 1 HL 34 at 43,

Lord Cranworth LC said that persons authorised to take the land of others 'cannot be allowed to exercise the powers conferred on them for any collateral object; that is, for any purposes except those for which the Legislature has invested them with extraordinary powers'. In Clunies-Ross v Commonwealth of Australia (1984) 55 ALR 609 at 610-611, the High Court of Australia said that the statutory power to acquire land for a public purpose could not be used to 'advance or achieve some more remote public purpose, however laudable'. See also Sydney Municipal Council v Campbell [1925] AC 338 at 343, [1924] All ER Rep Ext 930 at 932." [7]

15. There is a danger in asking whether the purpose the land is acquired for is

(i) the sole purpose or;

(ii) the dominant purpose or;

(iii) a substantial purpose.

In the Parramatta case French CJ said, "That question can distract from a more important aspect of the operation of the section." He went on to say;

"It should suffice that it is a substantial, ie non-trivial purpose. These alternative constructions, however, tend to become indistinguishable in their practical application when the inquiry is, as it should be, focussed on the purpose for which the particular parcel of land is to be acquired from its owner without that owner's approval. That purpose will be assessed by what the council intends to do with the land"

16. Drawing all those threads together the court should be able resolve the query of what was or were the purpose or purposes of the compulsory acquisition of the land and does it or they, in law, fall into the category of a purpose or purposes permitted by the relevant authority under which the Minister acted. The answer to that question can be clearly seen in the letter from the Premier Western Province to the Prime Minister dated 20th April 2010 [8]. The heading of the letter is Application by Solomon Islands Resort to construct Over Water Resort on Kennedy Island, Gizo, Western Province. The letter explains;

"Sir, it is also proposed that the bungalow designs shall be unique with a western province theme in architecture and carving and the company also like to incorporate a lagoonarium (the double advantage of the lagoonarium is that it shall also act as a protected breeding ground for different species of fish) and people of all ages could view the marine life in safety."

In the same letter the Premier goes on to say;

"Sir, given the enormous benefits anticipated through this project the Western Province Executive has recently supported and endorsed the application without any reservation as per the attached Executive Conclusion. More so, the Executive further endorsed a request to the Minister and Commissioner of Lands to compulsorily acquire all the areas below high water mark including the seabed adjacent to Kennedy Island, Naru Island and surrounding small island chain as provided for under Part V, Division 2 of the Lands and Titles Act to enable the company to secure registered title on the area".

The Executive Conclusion referred to in the letter reads the, "Executive resolved to approve the proposed under (sic) water Bungalow plan for Kennedy and Naru Islands."

17. When answering the question it is also important to bear in mind the comments of the High Court in the Clunies-Ross case. The majority made the statement;

"We have been at pains to stress in this judgment that the political or social desirability or otherwise of the deprivation of the plaintiff of his home is irrelevant to the proceedings of this court...The questions for this Court are questions of Law.....It would be an abdication of the duty of this Court under the Constitution if we were to determine the important and general question of law...according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. That general question, translated into human terms, is whether a Commonwealth Act conferring a power to acquire land for a public purpose entitles the Executive to deprive any citizen of his home not because of the need for it for any active or passive purpose but so as to achieve some more remote purpose..."

18. Looking at the proposal by the Western Provincial Executive and endorsed by the Minister in his declaration, it is abundantly clear that the compulsory acquisition was not for public purposes. Whether that expression be accepted as an all-encompassing expression or mere short hand for what is set out in section 8(1)(a) of the Constitution the result is the same. The land was being acquired to allow the building, by SIRL, of a resort. The rationale behind the acquisition was it allowed SIRL to "acquire registered title" which in turn would give the company "long term security". The implication being the economic viability of the project or indeed the basic viability of the project was at risk if the land remained customary land. The reference to marine conservation is, if the pun can be excused, a red herring. The use of the Coral Triangle Initiative as support for the proposal is flummery too. Just a cursory reading of the National Plan of Action published by the Solomon Islands Government suggests the very idea of the type of resort contemplated is an anathema to a good many of the goals set out in it. Whilst the injection and use of private funds to achieve a public purpose need not, in itself, make that purpose something less than "public", the purpose here was nothing of that sort. Conversely, a private purpose which has some laudable elements and which would no doubt benefit the locality with increased work opportunities and increased income, does not transmute to a public purpose because of those laudable elements and benefits. The purpose of the acquisition of the land was to assist a purely private commercial concern acquire the land it needed for the development of a resort.

19. The declaration by the Minister must be and is hereby quashed. The judgment and order shall be produced to the Registrar of Titles and he shall, in accordance with section 76 of the Act, cancel any note he has made on the registers pursuant to section 75 of the Act.

20. I would also draw the attention of the Minister, the Commissioner of Land and the Registrar to sections 76(1) and 77 of the Act. It is of some concern to me that the land was registered as a perpetual estate and then a grant of a fixed term made to SIRL before this case was concluded, indeed it seems before the case was begun. The records indicate the registrations occurred on or about 31st March and 1st April 2011. Section 77 of the Act is perfectly clear. Until the time for an application under section 76 has passed, that is six months from the date of the publication of the declaration by the Minister, neither the Commissioner nor the Registrar could or should have taken any steps to register the land. The most the Registrar could have been done was, if any land sought to be compulsorily acquired was registered, make a note on the register of that land as per section 75. It is only when the time for applying to the High Court has expired or when the High Court declines to quash the Minister's declaration that the registry map is prepared and the register is complied. Any step taken with regard to the register after the claim was filed and certainly after 12th April 2011 when service of the claim was acknowledged by the Attorney General's Chambers, would amount to contempt. There is clear evidence of undue haste on the part of the local and national authorities. In any event, the Minister's declaration under section 71 having been quashed the land must be removed from the register and it will be deemed to have remained customary land for all purposes.

21. It is also worthwhile pointing out the land could have been acquired by the Commissioner or the Western Provincial Executive and then a grant made to SIRL by recourse to Division 1 of Part V of the Act. The Provincial Executive 'required" the land (albeit not for its own purposes) and there is no restriction similar to that in Division 2 about public purposes.

22. The Respondents shall pay the Applicants costs, those costs to be assessed on a standard basis by the Registrar of the High Court if not agreed.

Chetwynd J

---

^[1] Sworn Statement of Henry Kala filed 28^th August 2011 (see annexure HK8)
^[2] See page 21 of Henry Kala’s sworn statement
^[3] Hamabal Framjee v. Secretary of State for India (1914) I.L.R. 39 BOM.279
^[4] Per Lord Collins SCJ.
^[5] Declaration on the Granting of Independence to Colonial Countries and Peoples contained in General Assembly Resolution 1514.
^[6] (1904) 1 CLR 363; [1904] HCA 12
^[7] Paragraph 38 R (on the application of Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] 4 All ER 931
^[8] Exhibited as HK1 to the sworn statement of Henry Kala filed 23^rd August 2011.