Tatavua v Attorney General [2013] SBHC 193; HCSI-CC 07 of 2013 (11 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 7 of 2013.

BETWEEN:

JOHN MARK TATAVUA, ERIC JOSHUA AND SAM LEUA (Representing the Veotina Landowners)
First Claimant

AND:

SIMON TONAVI, MOSTYN MANALE, AND DAVID REX (Representing the Mamasa Landowners)
Second Claimant

AND:

THE ATTORNEY-GENERAL (Representing the Minerals Board)
First Defendant

AND:

THE ATTORNEY-GENERAL (Representing Minister for Mines, Energy and Rural Electrification)
Second Defendant

AND:

DAVID KWAN (Trading as Solomon Resources)
Third Defendant

Date of Hearing: 6th December, 2013.
Date of Decision: 11th December, 2013.

Mr P. Tegavota for the First and Second Claimants.
Mr D. Damilea for the First and Second Defendants.
Mr B Eteomea for the Third Defendant.

DECISION.

Faukona J: This is a claim for judicial review pursuant to Rules 15.3.4 and 15.3.5. The claim is basically to review an executive decision that is of the Minerals board, of the Ministry of Mines and Minerals, in issuing a prospecting license to the third defendant on 15th February, 2011, to prospect for mineral deposits on veotina and mamasa customary land areas.

2. Rule 15.3.18 expressly says that the Court will not hear the claim unless it is satisfied that (a) the claimant has an arguable case (b) the Claimant is directly affected by the subject matter of the claim (c) that there has been no undue delay in making the claim (d) there is no other remedy that resolves the matter fully.

3. The major issue in this case is whether the Third Defendant had failed to comply with the requirements of Section 21 (4) (a), (b), (c), and (d) of the Mines and Minerals Act.

4. Counsel for the Claimant submits that despite non-compliance with the Act, the Third Defendant acquired surface access rights over the two lands under the access and compensation agreement executed on 3rd June, 2010. Further, despite non-compliance with above provisions a prospecting licence was issued to the Third Defendant by the Second Defendant on 15th February, 2011.

5. Therefore the Claimants seek declaratory order that the access and compensation agreement executed, and the prospecting licence issued, including any advice given by Attorney-General which led to vitiating the provision be declared null and void and of no effect.

6. The Third Defendant who the allegations were directed at, had filed a defence on 2ndMay, 2013 which contain 4 lines with two admissions and two denials without any manner of explanations why he admits and denies. I feel, with the issue touch on prospecting and mining, a huge business operation which required proper and efficient pleading be considered. Lack of it will not assist the Court much. The Attorney General could not able to file a defence because defence filed by Third Defendant is insufficient which the Court has reckoned as well.

Arguable Case:

7. The issue of non-compliance with the provision of the Mining Act by the Third Defendant is a legal issue, an issue in law. The fact that there is no explanation by the Third Defendant in his defence maintains an opposing view. That issue alone is an arguable case. An issue that the Court has to determine whether the grant of the prospecting licence followed from the access and compensation agreement are valid. It appears that the Third Defendant is relying on the agreement executed on 3rd May, 2010, as binding on the landowners. Perhaps it was the same agreement upon which the Minerals Board relied on when granting the prospecting licence to the Third Defendant. I have the privilege to read the agreement and I seem to agree with Mr Tegavota's submissions.

8. While the agreement made reference to mbarade and manahoho areas, there are no particular names of any customary land identified within those areas covered by the agreement, nor was there any map to identify those lands and the boundaries. Having identified the lands, it would then be easy to identify the tribes and then the names of persons or trustees who represent those tribes or clan. What appears in the list of names attached to the agreement was that those persons who signed on behalf of PL area landowners. But there were no specific implications as to precise designated land by reference to any map and which particular land they own and represent. I noted the signatures represent more than thirty sub-tribes, and if so there must be more than thirty different lands as well.

9. Mr Tegavota refers to the case of Cape Esperance Company Ltd V Success Company Ltd,[1] which the Court of Appeal stated at p.2-3, para. 5-7;

"The principal difficulty confronting the first plaintiff is that the particular areas of customary lands to which the logging contract applies are not precisely designated or delineated by reference to any map, boundaries or physical features of the lands in question. The contract contains no description or other means of identifying them apart from bare statement that they are customary lands on Ward 1, Guadalcanal Province".

10. Even if it is possible to read the contract divisibly or distributively in that way, the problem remains of identifying the particular part of the whole area of land in old Ward 1 to which the contract is capable of so applying.

11. The problem cannot be resolved by identifying other parties to the contract. They described simply representatives. It is possible to infer that in signing the contract they purported to represent customary lando0wners in old Ward 1; but neither their signatures nor anything else in the contract provide a clue as to who those landowners are or were".

12. The case is a classic example that features ambiguity in the contract purportedly signed by the parties, and part of the reflection of non-compliance with the Act.

13. The Mines and Minerals Act set down procedures which require prospective investors to comply with before acquiring access and compensation agreement and before being issued with prospecting licence. Should there be any allegation for non-compliance with the Act, in terms of acquiring the access and compensation agreement and prospecting licence, then it is an issue the Court has to hear and determine the validity of the agreement and the prospecting licence that had already being issued. Undoubtedly the claimants have an arguable case.

Has Claimants directly affected by Subject matter:

14. One of the requirements under R 15.3.18 is that the Claimant must be directly be affected by the subject matter. In this case there are two landowning groups who claim to own veotina land and mamasa land which the Third Defendant wish to carry out prospecting activities.

15. There is no exhibit or evidence concerning any determination by the land tribunals as chiefs or the Local Court. Any Claim of ownership to both customary lands is assertions. In the absence of any determination those assertions is taken into account.

16. Mr Etomea argues that the Claimants have no arguable case because there are no sworn statements or evidence that they are authorized by their respective landowning groups to represent them pursuant to Rule 3.42. He points out those two at least filed sworn statements purportedly representing mamasa landowners but no one representing veotina landowners. After realising his arguments are intertwining with the first requirement, he submits that this requirement ties up with the question of authorized representative.

17. Mr Eteomea's submissions that the landowning representative is an issue he opposes, that the Claimants have no arguable case, are absolutely out of context. Rule 3.42 he refers to has general application in my view. Under Judicial review chapter 15, there is no representative mention, either in the nature of standing as well. Under this specific chapter what actually requires is a person directly affected. Whoever directly affected by the subject matter has a standing to come to Court, or right to be heard. It may not be necessary for a representative because the Chapter intends to provide and accommodate equal rights to individuals who may be affected by a subject matter which is to be reviewed.

18. Mr Eteomea further argues that there should be sworn statements or evidence related to representation. At this stage filing of sworn statements is not necessary. Rule 15.3.16 says that as soon as practicable after defence has been filed and served, the Court must call a conference. At the conference the documents expected to be put before Court is a claim with a sworn statement in support and defence. Nothing in regards to full evidence is yet filed and expected to be available before the Court.

19. In any event I am satisfied that the Claimants are affected by the subject matter of the claim and they come to Court to express their grievances.

No other remedy available:

20. Mr Eteomea submits by suggesting that resorting to land forum is the remedy to resolve the matter fully. This is another misconception by the Counsel. This case concern with the issue of procedural law. Whether the Third Defendant had complied with the Mines and Mineral Act in his conduct of business acquiring access and compensation agreement and subsequent issuing of the prospecting licence. It has nothing to do with landownership yet. It may arise, perhaps in the future, but as it arises it will be dealt with as it comes.

21. Meantime I am satisfied there is no remedy available to resolve this matter fully.

Undue delay:

22. There are parallel submissions by the Counsel for the Attorney-General representing the First and the Second Defendant, and Counsel representing the Third Defendant. That the claim for judicial review was filed out of time contrary to Rule 15.3.8. This particular rule advocates that claim for quashing order must be made within 6 months from the date the decision was made.

23. The surface Access Agreement was executed on 3rd June 2010, subsequent thereof the Mines and Minerals Board made decision to grant the Third Defendant a prospecting licence on 15th February, 2011. This claim was filed on 18th January, 2013 one year and eleven months after the prospecting licence was issued. Are the Claimants late? Yes definitely by one year and eleven months, that is undue delay. Their last month to file a claim for judicial review was on 15th August 2011. Nothing was done. And there was no applications to extend time outside of prescribe period pursuant to Rule 15.3.9. Therefore the Claimants are late and of course it is an undue delay.

24. Is there any power available to the Court in this circumstance? Rule 15.3.18 says that the Court will not hear the claim unless the Court is satisfied that the four requirements had been fulfilled. One is not satisfactory fulfilled; hence, I must therefore refuse to hear this claim for judicial review. In other words the claim has to be struck out.

25. Also noted is some kind of fizzy activities going in this case. By letter dated 25th April, 2013, one of the Second Claimants Reverend Chuchu withdrew from being a party and supported the Third Defendant. The same trend occurred again when Patterson Divasia who previously filed two sworn statements on 28th January 2013, and in August 2013, in support of the Claimants had switched side and had filed a sworn statement on 4th December, 2013, in support of the Third Defendant. This is quite unique in any case. Witness not only contradicts himself but seem to be abusing court process. In the circumstances of this case though I will strike out the matter, liberty is given for reinstatement should the Claimants wish to seek leave. The situation has prompted me that should leave is granted the case should proceed to trial. The substance of this case is quite significant, which in my view require judicial adjudication and determination.

Orders:

1. Claim for judicial review is struck out with liberty to reinstate.

2. Meantime, costs are paid to the Defendants.

The Court.

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^[1] (1995) SBCA 10; CA-CAC 7 of 1994 (20 June 1995).