Alevanagana v Kegu [2014] SBHC 4; HCSI-CC 466 of 2011 (28 January 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(FAUKONA J)

CC NO.466 OF 2011

BETWEEN:

JOHN ALEVANAGANA, AND HENRY HIDI, KAMA
(Representing Ratadonga Landholding Group)
Claimants

AND:

JACK KEGU, WARREN QIRI, AND JOHN NGORO
1st Defendants

AND:

BULACAN INTERGRATED WOODS INDUSTRY (SI)
COMPANY LIMITED
2nd Defendants

Date of Hearing: 19/11/2013, 20/11/2013
Date of Judgment: 28 January 2014

Mr J Keniapisia for the Claimants
Mr P Tegavota for 1st and 2nd Defendants

JUDGMENT

FAUKONA J: The Claimants who represent Ratadonga Landholding Group (RLH) filed a claim on 24th November, 2011, and sought ten reliefs. I feel it is irrelevant and not so gravely tenable to paraphrase the reliefs that were sought. However, the Claimants' aver that they own Reregana Island in the Roviana Lagoon, Western Province. Their assertion of ownership was affirmed and benefitted from the Roviana Chiefs' determination dated 25th October, 2011.

2. In 2011, a plan was hatched by the tribe to engage in an agro-forestry development on Reregana Island. To implement the initiative, it requires community engagement and participation to commence in a large-scale plantation of coconut and cocoa on the island. It is expected the toil will reap a fair income earning means to support their livelihood.

3. The significance of this ideology translated to landowners of the two nearby islands, Kosanae and Honiavasa, who also had equivalent aspiration to engage in similar transformation. So the landowners of the three islands, with one accord, mobilized themselves through consultations and meetings. At the end thereof, they decided to engage a slash process to clear the forest and made way for planting of coconut and cocoa.

4. Because of the usual unprecedented thick rain forest of the islands, the landowners decided to utilize Section 4(1) (c) of the Forestry Act, to seek the Minister's indulgence to grant a special permit or exemption order. This would enable them avoid breaching Sections 4 or 5 of the Forestry Act, and that the process to acquire timber rights through Part III of the Act be exempted or vacated as well.

5. From evidence, there were two exemption orders issued by the responsible Minister. The first and original one was issued to Malae Enterprise (LN31/2011) on or around 27th April 2011, on behalf of the landowners. Under this permit, the landowners resolved that Pacific United to operate logging on Reregana and Honiavasa Islands and Bulacan Integrated Woods Industry (SI) Company Limited, to operate logging on Kosanae Island. That resolution was contrary to MOU signed by the landowners and Bulacan Company on 6th June, 2011.

6. That Permit was subsequently cancelled by a letter dated 8th August 2011. The reason for cancellation according to evidence was because it was issued to a wrong entity. There is no evidence of any legal notice cancelling the former permit. Following that, a new permit was issued on 8th August, 2011 to Kosanae/Honiavasa/Reregana Association with the same legal Notice No. 31/2011, used as a reference. With the changes, a new Agreement was executed between the Claimants and Pacific United on 18th August, 2011 to cut trees on Reregana Island.

7. A follow up letter dated 18th August 2011, after approval, stipulated seven conditions precedents. Though equally important, one which the Claimants seek to rely on is Condition No. 2 – "that an agreement must be entered into between the relevant landowning groups of the area and a potential contractor, and must be approved by the Commissioner of Forests". That Condition paved a way for the execution of the Agreement dated 18th August, 2011.

Landownership:

8. Visibly, it would appear that this case hangs on the issue of landownership of Reregana Island, or a portion of the land from which the Second Defendant had felled and extracted logs for export. The Claimants aver that their tribe, Raradonga own the entire island, and that has been affirmed by a decision of the Roviana House Chiefs delivered on 25th October, 2011. The First Defendants admitted they do not own the entire Reregana Island. They also admit they did not grant any timber rights to the Second Defendant. They also do not challenge the Second Defendant entered Reregana island and felled and extracted 2,000 cubic metres of logs. But they argued that the Second Defendant only entered the dark green area shown in the map, on the land owned by the First Defendants awarded by the chiefs and by permission of the First Defendants. To be specific, the dark green area according to the Defendants is a portion of land from Kogupiu to Tava. However, evidence adduced by the Claimants denied the First Defendants own such land. They were only given a portion from the eastern boundary of the dark green colour to a bottom of the bay on the west side to make gardens and deny extend of such land to the western point.

9. To ascertain the truth, I am legally persuaded to examine the chiefs' determination. Noted from the determination, the hearing was conducted with the First Defendants being absent. On paragraph 4 of the determination, it stated that the land from Koqupiu to Tava was given to the First Defendants by Joseph Kama and Leban. From the decision that given land was for ownership and not for the purpose of gardening only. True interpretation of the decision is that the First Defendants must confine themselves to the land from Kogupiu to Tava. Should they encroach beyond that land, they would be trespassing onto Ratadonga Tribal Land, in which they have to seek permission from Raratadonga Tribe if they wish to develop it.

10. As crystalline clear from the determination, the land given from Kogupiu to Tava was for ownership. The chiefs of Roviana knew such giving. Though the First Defendants did not appear to argue their point, it was known and recognized by the Chiefs of such transaction, and the purpose for it being given. The issue now is what is the extent of the land been given. There are two conflicting boundaries, in particular to the western end. It is pertinent that the western boundary ought to be determined so as to ascertain whether the Defendants were trespassing onto the Claimants' land. The question now is which land tribunal ought to draw that demarcation. The chiefs could have done it by actually demarcating the land from Kogupiu to Tava. Nothing was done. Hence the boundaries of the given land remain unresolved and still may be under dispute.

2nd Defendant's Entry onto Dark Green Portion of Land

11. To decide whether the Second Defendant's entry onto the land was legal or not, consideration must be had as to the process that authorized any such entry. Perhaps it is worth considering the motive and the rationale behind initial approach which subsequently led to utilising Section 4 (1) (c) of the Forestry Act. By exemption order granted to the Landowners' Association dated 8th August, 2011, prompted the question whether the First Defendants' inclusive as landowners who will also benefit from the same Exemption Order, is not very clear.

12. Once an exemption order was issued, there were conditions attached to it. In this case, the most significant condition, that the landowners must enter into a Management and Technology Agreement with a potential contractor to do felling and extraction of logs. The first Defendants argue that they had complied with the conditions by executing an Agreement with the Second Defendant on 6th of June, 2011. Upon perusing that Agreement, the names of the three Defendants were not among the list of blocks owners who signed the Agreement. It clearly implicated that the blocks own by the First Defendants in any of the three islands were not consented to and henceforth subjected to be logged. In furtherance, that Agreement was executed following the issuant of the first permit to Malae Enterprises, which was consequently cancelled on 8th August, 2011, and a new Exemption Order granted to Reregana, Honiavasa and Kosanae Landowners Association on 18th August, 2011. Therefore, the cancellation rendered the old permit null and void and whatever agreement entered into following that permit must be null and void as well.

13. From the evidence, it is with no doubt that the Second Defendant had entered the land bounded from Kogupiu to Tava illegally. Any trees felled and logs extracted by the Second Defendant's logging activities within the boundaries of the land, is illegal.

14. Earlier, on paragraph 10 I have found that the First Defendants owned land from Kogupi to Tava on Reregana Island. The problem they encounter was their motive to invite the Second Defendant to fell trees and logged their blocks of land. Was it for the purpose of which the special permit was granted, or was it a manifestation of pure utilizing the permit for their own agenda that is for the sole purpose of logging and not for agro-forestry development as was originally intended. In any case, the purpose for the Second Defendant to enter land from Kogopiu to Tava can be concluded as for logging purposes. If so Part III of the Forestry Act ought to be complied with. It does not change the circumstances either by capitalising the permit to fell trees and extract logs for export, that activity was illegal and ought not be complacent with. In fact, there is no evidence that the Defendants intended to carry out any agro-forestry development.

15. Beside being indulged in a logging activity beyond the purpose the special permit was granted, the First Defendants had failed to enter into an Agreement with the Second Defendant to carry out logging in their blocks of land to fulfil one of the major conditions attached to the permit. The First Defendant can't rely on Agreement executed on 6th June, 2011 for two reasons. One, that the Agreement executed on 6th June, 2011 for the Special Permit issued to Malae Enterprises which was said to have been cancelled by a letter from the Commissioner of Forests on 8th August, 2011. Secondly, the Agreement was never signed by even one of the First Defendants. Hence they are not party to that Agreement as an authority allowing the Second Defendant to enter the land and fell trees for sale and export.

Validity of the Special Permit

16. This issue was not identified during the course of the pleadings. May be parties would like to engage in logging. However, I am provoked after perusing the documentary evidence that the reality ought to be verified. Section 4(1)(c) of the Forestry Act authorises the Minister to declare by Notice of Exemption Order. That order was the finality of expression of the Minister's power. Such order is perceived as substitution from the normal process of which licence was issued for felling of trees and remove of timber, as required in Section 5 (1)(c) of the Act, and of which Part III of the Act provides full process that will lead to the grant of such licence.

17. Having resumed to a mode of publication of the Order by way of legal notice which subsequently was gazetted to enable the claimants to engage in extraction of trees from their customary lands.

18. What appears to be strange is that when the Commissioner of Forests cancelled the Special Permit by a letter dated 8th August, 2011, there was no amendment published in the National Gazette of that cancellation or revocation. Whether it was done by oversight or over-burdened not to able to see is a mere ignorance of the consistencies. Section 39 (1) of the Act gives power to the Commissioner to cancel such permit, provided such permit shall not be cancelled without giving the holder of the permit an opportunity of being heard.

19. That Section has prompted a further assessment of the cancellation letter. Upon further reading of the letter, in particular paragraph 3, it appears that the letter is a notice informing Malae Enterprises to show cause why the Special Permit was not cancelled. In reality, there was no evidence of a formal cancellation of the Special Permit issued to Malae Enterprises. If there was, it has to be published by notice in the National Gazette, as it was when it was granted.

20. This brings us to a point whether the second Special Permit authorising Reregana, Honiavasa and Kosanae Landowners' Association to fell and sale forest produce was formally done. There is no evidence of the notice of such Special Permit granted published in the National Gazette. If the first and original permit was gazetted, why would it not apply to the second Special Permit when it was granted. It appears that the manner in which the cancellation and the approval of the second Special Permit were done administratively, rather than have it legally done by way of notice published in the National Gazette. The Claimants cannot rely on LN 31 of 2011 as being valid. It was a legal notice which published the First Special Permit approved for Malae Enterprise. By merely making reference to it does not mean transferring the legal mantle to cover the approval of the Second Permit. A new legal notice ought to be published to maintain consistency.

21. In the absence of both, the whole process ought to be flawed. Both the Second Defendant and Pacific United Limited are operating on the three islands illegally. It makes a big difference of the Orders I would uphold should the process of cancellation and approving of the second 'Special Permit' was legally done. I perceived there are truly legal faults or both sides, therefore I must dismiss the entire claim.

Orders:

1. The whole entire claim be dismissed.
2. All the relief sought be dismissed.
3. Cost in the cause.
   

THE COURT