Kolombangara Island Biodiversity Conservation Association Trust Board (KIBCA) v Attorney General [2013] SBHC 87; HCSI-CC 428 of 2011 (22 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDs
(Mwanesalua J)

Civil Case No. 428 of 2011

BETWEEN:

Kolombangara Island Biodiversity Conservation Association Trust Board (KIBCA) (Incorporated
(Represented by Ferguson Vaghi)
Claimant

AND:

The Attorney General
(Representing the Commissioner of Forest Resources and the Director of Environment And Conservation)
First Defendant

AND:

Success Company Limited
Second Defendant

Hearing : 12 June 2013
Ruling : 22 July 2013

Ms Manaka for Claimant
Mr. Damilea for First Defendant
Mr. Suri for Second Defendant

RULING ON PRE-TRIAL CONFERENCE

1. The Claimant was incorporated on or about 4 May 2009 under the Charitable Trust Act. Its members include customary and registered landowners of Kolombangara Island. Its objects under its constitution include uniting the landowners of Kolombangara to own and manage land 400 meters above sea level on Kolombangara. On or about 21 May 2008, Community Leaders and Customary Landowners of Southwestern Kolombangara signed a five year Community Conversation Agreement with the Solomon Islands Conservation Partnership to prohibit whole-scale commercial logging and mining activities from areas 400 meters above sea level. On about 9 October 2009, the Claimant, representing the communities and customary landowners of Kolombangara, executed a further Community Conservation Agreement with the Solomon Islands Community Conservation Partnership to prohibit whole-scale commercial logging and mining activities from all areas 400 meters above sea level. Mr. Ferguson Isaac Vaghi, member and Program Coordinator of the Claimant represents the Claimant in this claim.
   
2. The First Defendant is the Principal Legal Advisor for the Solomon Islands Government. His other functions, among other things, include giving advice and defending the Government, the officers in the Ministries and statutory authorities. The First Defendant represents the Commissioner of Forests and the Director of Environment and Conservation Division of the Ministry of Environment, Climate Change, Disaster Management and Meteorology in this claim.
   
3. The Second Defendant is a company incorporated in Solomon Islands. Its business include logging. That is to say, felling of trees and the extractions of logs from its concessions for export. On or about 22 May 2009, the Commissioner of Forest Resources (the Commissioner) issued felling licence no. A10850 (the Licence) to the Second Defendant under the Forest Resources and Timber Utilisation Act [Cap. 4]. This licence covers logging on Registered Perpetual Estate Parcel No. 098-004-1, Lolobo, Kolombangara Island, in the Western Province. This licence is valid for a period of 5 years from 22 May 2009 to 22 May 2014. On or about 30 August 2010, the Second Defendant wrote to Commissioner for approval to conduct logging 400 meters above sea level, on Lot 1, on Kolombangara. On or about 2 September 2010, the Commissioner wrote to the Second Defendant, advising that he had approved logging operation 400 meters above sea level on Lot 1 of LR598 Parcel No. 098-004-1, on the conditions that the Second Defendant must comply with the Solomon Islands code of Logging Practice and the submission of its Logging plan to the Commissioner for approval.
   
4. The Commissioner of Forest Resources is appointed under section 3 of the Forest Resources and Timber Utilisation Act (Cap. 40) to perform various duties. One of the duties bestowed on the Commissioner is the issuing of licences to logging companies to fell trees and remove timber from public land, customary land and any land not being either public land and customary land.
   
5. The Director of Environment and Conservation Division is appointed under section 5 of the Environment Act 1998. One of the main functions of the Director is to grant development consent to logging companies. No logging can take place without that consent. That consent can only be given after the Director has read the Environment Impact Assessment Report on the area on which the proposed development is to take place.
   
6. In this case, the Second Defendant had applied on 18 March 2011 to the Director to conduct logging on Lots: 1, 2, 9 and 10 of LR598 and the customary land below Lots 1, 2, 9 and 10. These lots and customary land are situated on the South of Kolombangara. On 31 March 2011, the Director gave his consent to the Second Defendant to conduct logging on the Lots and the customary land. On 2 September 2011, the Director granted his consent to carry out logging on the Lots, which are above 400 meters above sea level. The Director had also given Development consent to Omex Company to conduct logging on Lot 2.
   
7. Lot 1 is owned by Lolobo Tribe. This tribe has representatives in the Claimant. Lot 2 is owned by the Kolombangara tribe. A former Chairman of the Claimant, Mr. Donald Saepio, is a representative of the tribe with the Claimant. And lots 9 and 10 are owned by Suguvangga, Epanga, Tusa, Korapa and Dughore tribes.
   
8. The Claimant made an objection against the approval by the Commissioner for logging operations on the lots because the Commissioner did not comply with the requirements of the Forest Resources and Timber Utilisation Act; denial of procedural fairness; failure to take account of relevant considerations; and bias.
   
9. Further, the Claimant contends that the issuance of the development consent by the Director to the Second Defendant was invalid on the grounds that: (a) there was noncompliance with the requirements of the Environment Act and the Environment Regulations of 2008; the Director took account of irrelevant considerations and/or gave little weight to relevance considerations; and the Director failed to take proper considerations of relevant issues.
   
10. The Commissioner failed to consult the Landowners before granting approval to conduct logging on 400 meters above sea level as required under schedule 1 of Form 4 of the Forest Resources and Timber Utilisation (Prescribed Forms) Regulations ("Regulations"); the approval to log above 400 meters above sea level is wrong because logging can only be done on level land or plateau (Clause 9 and schedule 1 of Form 4 of prescribed Form Regulations. In this case, the area 400 meters above sea level has no level land or plateau.
    
11. The Director failed to provide a full copy of Public Environment Report to the Claimant. It also apparent that the decision of the Director to grant development consent 400 meters above sea level is wrong, he failed to disclose his reasons in support of his consent. In actual fact, he failed to take note of Mr. Danitofea's recommendation who is his Senior Environment Officer, for a review of the Environment impact assessment report made by the Second Defendants' employees. The Commissioner wholly disregarded concerns of a Schoolteacher in a Secondary school located within the concession area of his serious concerns about the pollution of drinking water by the logging 400 meters above the sea level for a long period. The Director was also silent about the need to comply with the key standards of the Solomon Islands Code of Logging Practice.
    
12. The court has considered the Second Defendant's submissions but the court considers that the Claimant has triable issues to be heard at the trial. This case is adjourned to 25 July 2013 at 9:30am for mention.
    

THE COURT