Mereki v Attorney General [2014] SBHC 94; HCSI-CC 59 of 2014 (30 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

TEBUKEWA MEREKI, JOHN TEBIRIA RABAUA, HENRY TEBITARA, ABERAM ABERA & ARESI KIATOA
Claimants

AND:

ATTORNEY GENERAL
1st Defendant

AND:

SOLOMON BAUXITE LIMITED
2nd Defendant

Mrs. M. Manaka for the claimants/Respondents.
Mr. D. Damilea for the 1st defendant.
Mr. A. Radclyffe for the 2nd Defendant/Applicant.

Date of hearing: 20 May 2014.
Date of Judgment: 30 June 2014.

RULING
Apaniai, PJ:

1. The claimants ("Respondents") are residents of Wagina in Choiseul Province. They are members of a committee known as Maungatabu that represents the people of Wagina. They are opposed to any mining activities around the Wagina area.
   
2. The 2nd defendant ("Applicant") has been granted a Development Consent pursuant to the Environment Act 1998 ("Act") by the Director of Environment ("Director") on 2 September 2013 which is said to have authorised the Applicant to carry out bauxite mining activities on Wagina Island.
   
3. The Respondents were not happy with the Director's decision to grant a Development Consent to the Applicant and so on 3 October 2013 they hand-delivered to the Ministry of Environment, through the Public Solicitor's Office, an appeal to the Environmental Advisory Committee ("Advisory Committee") under section 32(1) of the Act against the decision of the Director. The appeal to the Advisory Committee is still pending.
   
4. The appeal grounds are mostly allegations of non-compliance with the Environment Act and the Environment Regulations 2008 in the manner the Environment Impact Study was conducted as well as the manner in which the Director has reached his decision to grant the Development Consent to the Applicant.
   
5. One of the functions of the Advisory Committee is to hear appeals against decisions of the Director to grant Development Consents. Other functions include advising the Environment Division and the Minister on environment and conservation matters referred to it by the Division or the Minister.
   
6. Unfortunately, there is no Advisory Committee in existence to hear the appeal because the Minister has not yet appointed one as required under clause 1 of the First Schedule to the Act. Budgetary constraints were given as the reason for not appointing the Committee. It is not certain when the Committee will be appointed.
   
7. The evidence shows[1] that upon learning that there is no Advisory Committee, the Respondents filed this judicial review claim on 28 February 2014. In the claim, they seek a number of remedies against the 1st defendant and the Applicant. The manner in which the remedies were drafted appears confusing, but making sense of all that has been written, the declarations and orders sought can be stated as follows:-
   

[1] A declaration that a decision of the Director of Environment and Conservation made on or about 5 February 2013 under the Environment Act 1998 ("Act") is void and of no effect;

[2] A consequential order quashing that decision;

[3] Leave be granted to file this claim out of time;

[4] A declaration that the Development Consent granted by the Director of Environment and Conservation on 2 September 2013 under the Act is void and of no effect;

[5] An order quashing the Development Consent; and,

[6] Leave be granted to file sworn statement verifying the facts supporting the claim out of time.

8. The time limit for seeking judicial review is six months from the date the decision is made[2] which, in this case, was 2 September 2013. This claim was filed on 28 February 2014 which is still within the six months time limit. Leave is therefore not required to file this judicial review claim.
   
9. Both the 1st defendant and the Applicant are yet to file defence. Despite not having filed any defence, the Applicant now comes to court seeking an order for the dismissal of the claim under Rule 15.3.20 as read with Rule 15.3.18(d) of the Solomon Island Courts (Civil Procedure) Rules 2007 ("Rules").
   
10. Rule 15.3.20 allows the court to strike out a claim if it is not satisfied about the matters in rule 15.3.18. The matters in rule 15.3.18 are that the claimant has an arguable case; the claimant is directly affected by the subject matter of the claim; there has been no undue delay in making the claim; and, there is no other alternative remedy that resolves the matter fully and directly.
    
11. The basis of this application, as I understand it from the Applicant's submission, is that there is an alternative remedy that could resolve this matter fully and directly. That remedy is an appeal to the Advisory Committee under section 32(1) of the Act which the Respondents have already done by letter issued on their behalf by the Public Solicitor's Office dated 2 October 2013. It is submitted by the Applicant that what remains to be done is for the Advisory Committee to hear the appeal and if, as here, there is no Advisory Committee then the Respondents should seek mandatory orders against the Minister to appoint the Committee instead of filing this judicial review claim.
    
12. In their submission in opposition to the application, the Respondents have put forward three contentions.
    
13. First, they argue that the application is misconceived and should be dismissed. They say that the Applicant has not yet filed a defence and therefore he could not raise any issue in regards to the requirements of rules 15.3.18 and 15.3.20.
    
14. Their second, and perhaps their main contention, is that there is no Advisory Committee in existence and therefore a judicial review claim is the only available remedy that could resolve the dispute fully and directly.
    
15. Their third argument is that to seek a mandatory order for the Minister to appoint an Advisory Committee will not fully and directly resolve the issues between the parties.
    
16. In regards to the first contention, I do not agree that the absence of filing a defence is fatal to considering the issue whether a claim should be dismissed because there is another remedy available to resolve the dispute between the parties under rule 15.3.18(d). I cannot see what difference the filing of a defence will make where it is claimed that there is an alternative remedy available that can fully and directly settle the dispute. Rule 15.3.17 makes it obligatory to consider the matters raised in rule 15.3 18 at a pre-trial conference. It does not prohibit consideration of those matters before pre-trial conference. If they are not considered before the pre-trial conference, they must be considered at the pre-trial conference. The purpose of rule 15.3.18, in my view, is to ensure that time and money are not waisted in bringing to court cases which can be settled in ways that are simpler, speedier, cheaper and more accessible than the court process. In my view, hearing of an appeal by the Advisory Committee would, this case aside, be simpler, speedier, cheaper and more accessible than the court process. I do not agree that this application was misconceived.
    
17. The Respondents' second contention is that there is no Advisory Committee in existence and therefore a judicial review claim is the only available remedy that could resolve the dispute fully and directly as required under rule 15.3.18(d).
    
18. I think this argument has considerable force. While I accept that it is a well settled principle of law that the court will not readily grant judicial review of administrative decisions where statute has prescribed an appeal process[3], it is my view that the non-existence of the Advisory Committee has brought this case out of the ambit of that principle.
    
19. A proper interpretation of rule 15.3.18(d) will also lend support to that view. Rule 15.3.18(d) bars the court from hearing the claim unless it is satisfied that there is no other remedy that could resolve the matter fully and directly. In other words, if there are other remedies available which could resolve the matter fully and directly then the court must decline to hear the claim and allow the parties to resort to those other remedies. The important requirements of rule 15.3.18(d) are, first, there must be another remedy available and, second, that remedy is one that will resolve the dispute fully and directly. The nature of the dispute will determine the kind of remedy necessary to resolve the dispute.
    
20. What then are the disputes between the parties in this claim? They are to be found in the appeal grounds set out in the appeal to the Advisory Committee lodged with the Ministry of Environment on 3 October 2013. A perusal of the appeal grounds will show that most, if not all, of the grounds allege non-compliance with the Environment Act and the Environment Regulations 2008 as well as the manner in which the Environment Impact Study ("EIS") was conducted and the manner in which the Director has reached his decision to grant the Development Consent to the Applicant. In other words, the appeal is concerned, not with the merits of the decision by the Director to grant a Development Consent to the Applicant, but with issues of non-compliance with the Act and the process by which the Director has reached his decision. Those are almost the same issues raised by this judicial review claim. They are issues of law. Will an appeal to the Advisory Committee resolve those issues fully and directly?
    
21. In my view, the answer must be "no". The reasons are obvious. First, it remains to be seen whether the Advisory Committee is competent to decide questions of law. Its functions and powers are limited to advising the Division and the Minister on matters connected with environment and conservation referred to it by the Division or the Minister for advice and to conduct and perform any tasks assigned to it under the Act[4]. One of those other functions is to hear appeals from decisions by the Director to grant Development Consents[5]. The appeal to the Advisory Committee raised issues of law.
    
22. Second, the non-existence of the Advisory Committee is, in itself, a strong enough reason in favour of the argument that an appeal to the Advisory Committee will not fully and directly resolve the issues in dispute between the parties in this case. There is, of course, no dispute that an appeal has been lodged to the Advisory Committee. However, the non-existence of the Committee and the uncertainty that surrounds the appointment of the Committee members are matters which go in favour of the argument that an appeal to the Committee is not a remedy which will resolve the dispute between the parties to this case fully and directly. In other words, the non-existence of the Advisory Committee makes it impossible to hear any appeal against any decision by the Director to grant Development Consents.
    
23. It has been submitted by the Applicant that where, as here, the Advisory Committee does not exist, the appropriate remedy is for the Respondents to seek an order of mandamus against the Minister to force him appoint the Committee. That may well be the case. Unfortunately, it does not solve the question whether the Committee is competent to determine an appeal which comprises mostly of questions of law. In any event, such application will give rise to multiple hearings, one by the court for the mandamus and, if successful, the other by the Advisory Committee hearing the substantive appeal which comprises mainly of issues of law.
    
24. I am not satisfied that the appeal to the Advisory Committee will fully and directly resolve the dispute between the parties in this case.
    
25. It follows therefore that this application must be dismissed. In relation to costs, while the general rule is that costs follow the event, it is my view that an appropriate order in the circumstances of this application is for costs to be in the cause.
    
26. The orders are:-
    

[1] The application is dismissed.

[2] The Applicant and the 1st defendant shall file their defences within 14 days from the date hereof.

[3] The costs of this application shall be costs in the cause.

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] See sworn statement by Martha Manaka filed on 3 March 2014.
^[2] Rule 15.3.8 Solomon Island Courts (Civil Procedure) Rules 2007.
^[3] Bollen v Sade [1999] SBHC 109; HC-CC 345 of 1999 (9 November 1999); Bavare v Nerapa [2011] SBCA 22; CA-CAC 21 of 2011 (25 November 2011); Koga v Attorney General [2014] SBHC 15; HCSI-CC 105 of 2012 (20 March 2014).
^[4] Section 14, Environment Act 1998.
^[5] Ibid, section 32(1).