Aujare v Athena Investment Ltd [2013] SBHC 211; HCSI-CC 278 of 2011 (27 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

CHIEF ERIC GNOKRO AUJARE (representing himself and Pau tribe)
1st Claimant

AND:

CHIEF SILAS BAKO (representing himself and Hoi tribe)
2nd Claimant

AND:

ATHENA INVESTMENT LTD
1st Defendant

AND:

ATTORNEY GENERAL (representing Isabel Province)
2nd Defendant

AND:

ATTORNEY GENERAL (representing Commissioner of Forests)
3rd Defendant

Mr. A. Rose for the 1st and 2nd Claimants/Respondents.
Mr. G. Suri for the 1st Defendant/Applicant.
Mrs. R. Soma for the 2nd and 3rd Defendants/Respondents.

Date of hearing: 13th November 2013
Date of Judgment: 27th December 2013

RULING

Apaniai, PJ:

Introduction.

1. This is an application by the 1st Defendant ("Applicant"). It was filed on 20 August 2013. It is said to be an application for the determination of a point of law under Rule 12.11 of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules"). It is further said that the determination of the legal point will finally settle the issues in this case so that a trial will no longer be necessary.
   
2. According to the Applicant, the legal point arose as a result of the 2nd Defendant's defence to a cross claim filed against him by the Applicant on 19 April 2013.
   
3. In paragraph 2 of the cross claim, the Applicant sought declarations that the 2nd Defendant has not made a lawful determination as required under sections 8(4) and 9(1) and (2) of the Forest Resources & Timber Utilisation Act (Cap. 40) ("FRTU Act") and so has not completed its statutory duty. The Applicant had also cross claimed for an order directing the 2nd Defendant to convene a fresh timber rights hearing to determine the Applicant's application for timber rights over LR 707.
   
4. In paragraphs 5 and 6 of its defence to the cross claim filed on 13 June 2013, the 2nd Defendant has admitted that it has not made a lawful determination as required under sections 8(4) and 9(1) and (2) of the FRTU Act and so has not completed its statutory duty, and also conceded that it should convene a fresh timber rights hearing to properly determine the Applicant's application for timber rights over LR 707.
   
5. It is these admissions and concessions by the 2nd Defendant that has prompted the Applicant to file this application seeking the declaration and consequential orders referred to above which, it says, would settle this case if the declaration and consequential orders are granted.
   
6. With respect, I do not agree that a decision on the cross claim will finally settle this claim for the cross claim is one that involves only the Applicant and 2nd Defendant. The Claimants are not a party to the cross claim. Their case, as I understand it, still remains that a timber right has been convened but no determination has been made in respect of LR 707 because of objections and disputes between the landowners. That means LR 707 has been excluded and no determination has been made in regards to LR 707. In other words, because of the objections, LR 707 has been excluded from the timber rights hearings and that it is not necessary to make any determination in relation to LR 707 as claimed by the Applicant.
   
7. The admissions and concessions by the 2nd Defendant to the cross claim do not bind the Claimants. The issue still remains whether or not a determination has been made in respect of LR 707 to justify a licence being granted to the 1st Defendant to carry out logging on that land.
   
8. The further amended claim (Category C) filed by the Claimants on 11 September 2012 makes it clear that the Pau and Hoi tribes are the owners of areas of land within LR 707 and that at the timber rights hearing held at Kilokaka village on the 8 November 2009 the representatives of these two tribes were not willing to negotiate for the disposal of their timber rights to the 1st Defendant. The amended claim says that because of these objections, no determination was made in respect of LR 707, but if there is such determination then the determination is null and void.
   
9. The 1st and 2nd Defendants agree that no positive determination has been made over LR 707. However, they say that in failing to make such determination in respect of LR 707, the 2nd Defendant had not performed its statutory duties and therefore it must carry out its duties by convening another timber rights hearing in respect of LR 707 only and then make the appropriate determination.
   
10. With respect, I cannot agree with the 1st and 2nd Defendants' position. The law is clear in the case where the landowners are not willing to negotiate for the disposal of their timber rights. In such case, section 9(1) of the FRTU Act imposes an obligation on the Executive to recommend to the Commissioner a rejection of the application. It would be a breach of section 9(1) for the Executive not to make such recommendation. And when such recommendation is made the Commissioner is obliged to reject the application. Likewise, it would also be a breach of section 9(1) for the Executive to make a recommendation to approve the application where landowners are not willing to negotiate for the disposal of their timber rights.
    
11. In the present case, all parties to this proceeding agree that the Pau and Hoi tribes, who are the owners of the land within LR 707, had objected to LR 707 being included in the application for timber rights. This is a clear indication that these two tribes were not willing to negotiate for the disposal of their timber rights in LR 707. In accordance with section 9(1) of the FRTU Act, the Executive had a duty to recommend to the Commissioner the rejection of the application by the 1st Defendant for timber rights in LR 707. The Executive has no power to approve or reject timber right applications. Its powers are limited to making the appropriate recommendation to the Commissioner depending on whether or not agreement has been reached between the applicant and the landowners or between the landowners themselves.
    
12. Where a timber rights hearing has commenced, the Executive can adjourn the hearing to enable the applicant and the landowners to negotiate an agreement, or to enable disputing members of a landowning tribe to reach a compromise in regards to granting timber rights over their tribal land, before it can make the appropriate recommendation. But it has no power to recommend approval of a timber rights application "pending agreement between the applicant and the landowning tribe" or "pending the approval of the disputing tribal members".
    
13. Where, at the end of the hearing, no agreement has been reached, either between the applicant and the members of the landowning tribe or between the members of the landowning tribe themselves, the Executive has no option but to recommend rejection of the application, in which case, the Commissioner must reject the application[1].
    
14. What happened in the present case, as shown by the evidence, is completely inconsistent with the requirements of the law. There was a timber rights hearing for the grant of timber rights over LR 703, 704, 705, 706 and 707. At the conclusion of the hearing, agreements to grant timber rights have been reached in regards to LR 703, 704, 705 and 706 but not LR 707. As such, the Executive was obliged to make two recommendations to the Commissioner, the first, to approval of the application for timber rights over LR 703, 704, 705 and 706 and the second, to reject the application for timber rights over LR 707. On receipt of those recommendations, the Commissioner would then approve the applications relating to LR 703, 704, 705 and 706 and issue the appropriate logging licence while, in regards to LR 707, the application should have been rejected. Strangely, the licence issued to the Applicant in relation to LR 703, 704, 705 and 706 also covered LR 707.
    
15. Conflicting evidence has been tendered to show who made the mistake and how the mistake was made which caused LR 707 to be covered by the licence. In my view that it matters not who made the mistake or how the mistake was made. The fact is that a fundamental mistake was made which has resulted in the Commissioner issuing a logging licence, which should not have included LR 707.
    
16. Arguments have also been put forward, especially by counsel for the 1st Defendant, that no formal determination has been made in regards to LR 707 and therefore the 2nd Defendant must again call another timber rights hearing to consider the application relating to LR 707 to enable a formal determination to be made which would then give rise to an appropriate recommendation being made to the Commissioner.
    
17. With respect, I do not subscribe to that proposition. The purpose of the timber rights hearing is to "determine" the matters specified in subsection (3) of section 8 of the FRTU Act, which matters include whether the landowners are willing to negotiate the disposal of timber rights in their land. The word "determine" is a verb. It describes an action. It is defined in Australian Concise Oxford Dictionary (4th Edition) as to "find out" or to "establish precisely". The "finding out" or "establishing precisely" whether or not the landowners are willing to negotiate timber rights over their land is done during the timber rights hearing by hearing what the landowners have to say. If, during the timber rights hearing, it becomes apparent that the landowners are not willing to negotiate timber rights over their land, or if there is disagreement between the landowners themselves as to whether they should or should not grant timber rights, then what the Executive needs to do is simply write to the Commissioner informing him that there is no agreement to negotiate timber rights over the land concerned and recommending that the Commissioner rejects the application.
    
18. The fact that a logging licence has been issued which also included LR 707 is beyond comprehension in the light of the refusal by the landowners to allow LR 707 for logging. The process has drastically gone wrong somewhere along the line.
    
19. Should this court then grant the orders sought in this application? In the light of the evidence before the court, I am not satisfied the court can make the orders sought herein. It is clear that a mistake has been made in issuing a licence, which covers LR 707, and the matter must proceed to trial.
    
20. It follows therefore that this application is refused and the Applicant is to pay the costs of the Respondents on standard basis to be taxed if not agreed.
    
21. The orders of the court are:-
    

[1] The application is dismissed.

[2] The Applicant shall pay the costs of the Respondents on standard basis to be taxed if not agreed.

[3] The case is listed for 13 February 2014 for further directions.

THE COURT

_________________________
James Apaniai
Puisne Judge

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^[1] See section 9(1), Forest Resources & Timber Utilisation Act (Cap. 40); Simbe v East Choiseul Area Council & Others [1999] SBCA 9; CA-CAC 8 of 1997 (9 February 1999).