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High Court of Solomon Islands |
IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction
HCSI – CC No.249 of 2016
BETWEEN: VANIKORO LUMBER - Claimant
LIMITED
AND: MS FREDA TAU - 1st Defendant
NGU BROTHER (SI) - 2nd Defendant
COMPANY LIMITED
CHANNEY FENUKMOANA, - 3rd Defendant
CHRIS PANAKILAOI JOSES
OFAKIRONGO, MICHAEL
ONOMARIE (Representing Tafua,
Fangarere, Taumako, Kafika tribes)
HCSI-CC NO. 263 of 2016
BETWEEN: FATHER JOSEPH PAE - Claimant
MARUKITE MARAMA, CHRIS
NUKU PRAISE, BROWN
NUKUFOU & MICHAEL MORAVA
(Representing the Ngamotu Fonofono
Kingdom and the Communities of
Nukufero, Vanikoro, Utupua & Niuteni
Islands, Temotu Province)
AND: THE PREMIER OF TEMOTU - 1st Defendant
PROVINCIAL ASSEMBLY
VANIKORO LUMBER - 2nd Defendant
LIMITED
APEX PACIFIC LIMITED - 3rd Defendant
ATTORNEY GENERAL - 4th Defendant
(Representing the Commissioner of Forests)
Date of Hearing: 4 October 2016
Date of Judgment: 20 January 2017
Mr. C. Fakarii for claimant in cc: 249/2016 and 2nd defendant in cc: 263/2016
Mr. L. Kwaiga for 1st & 3rd defendants in cc: 249/2016
Mr. W.Rano for 2nd defendant in cc: 249/2016
Mrs. M. Bird for claimant in cc: 263/2016
Solicitor-General for 1st & 4th defendants in cc: 263/2016
Logging conflicting claims at Vanikoro
Brown J:
The trial of these two claims came before the court together for the same question is involved in each proceeding[1]. That question relates to the presumed right to deal with customary land pursuant to a logging licence A10366 issued by the Commissioner of Forest affecting land on Vanikoro Island, Temotu Province. For in cc: 249 of 2016 (cc: 249) Vanikoro Lumber limited (the claimant) claims a right to log pursuant to five standard Logging Agreements (Form IV) dated 8 July 2012 over those parts of customary lands (Paiou to Lemen, Lemen to Lavaka to Ne’ero to Now Viou, Now Viou to Paiou, Vanikoro Island) now purportedly adversely affected by the Temotu Vatud Constituency Development Centre, an initiative of the Hon. Freda Tuki MP for Temotu Vatud Constituency and other land more recently contracted out for logging by the 2nd defendant, such timber rights on the customary land, given it by the 3rd defendants. [cc. 249].
For the five Standard Logging Agreements in the statement of the claimants case [cc. 249] rely upon a timber rights hearing (on the
claimants application) by the Provincial Executive in 2005, when the Executive found and named those persons entitled by custom to
grant timber rights, persons upon whom the Vanikoro Lumber Ltd rely for their rights to enter and log customary land and with whom
the Agreements were made.
The Licence given by the Commissioner of Forest is a separate issue. I will deal with that later in these reasons. The persons named
by the Executive in 2005 are not those presuming to deal with the land by way of a Constituency Development Centre, for they are
named as 3rd defendants (representing Tafua, Fangarere, Taumako Kafika tribes) who are denied by the claimant in the statement of case, as having
any rights of ownership over the customary land being “recent settlers on Vanikoro Island at the permission of the original land owners of Vanikoro Island and consequently who have no right to deal with the usufruct or forest resource, a resource already with the company by way of the
earlier standard Logging Agreements [cc.249].
The 1st defendant is the Member of Parliament for the Temotu Vatud Constituency and according to the statement of case, without the approval of the landowners, has with the 3rd defendants, agreed to the proposals to clear-fell tracts of land for the Constituency Development Centre.
The 2nd defendant apparently relying on a letter of permission signed by the 3rd defendants, is the company engaged by the 3rd defendants to carry out the logging and sale of the timber felled on land claimed by the Vanikoro Lumber Ltd as land covered by its concession and licence,.
The Defence of the 1st defendant, the Honourable Member, in the ultimate paragraph, said:-
“20. The first defendant denies paragraph 19 and says that there was never an intention to carry out logging operations on the
Island of Vanikoro and that it was her intention since becoming a member of parliament to use Vanikoro as the half of economic activities
for the people of her Constituency because of its ideal location”.
By paragraph 5 of the Defence, it was admitted the 3rd defendants are ethnic Polynesians from the Island of Tikopia but otherwise denies the remainder of paragraph 4 of the claimants statement (statement of claim, paragraph 4, pleads the Tikopians have no claim in custom or law to ownership of the land covered by the logging licence).
The Defence denies the validity of the claimants felling licence, and details matters going to that plea. I will address this as a separate issue, later.
The Defence also, at paragraph 13 says;
“As to paragraph 12, the First Defendant admits receiving the a letter from JAK Legal Services in 2015 but says that at the
material time, members of her constituency through a registered business, Eastern Resources Company submitted a project proposal
for an Agro-Forestry Cocoa Project and the First Defendant assisted the group through:
The 1st defendant, the member for the Constituency, has filed a sworn statement in support of the Defence where by annexed exhibit 4, the Constituency plan and associated documents were evidenced.
Also exhibited at 3 was the project proposal for Vanikoro Motufonofona Tribe for an Eastern Resources Company Agroforestry Cocoa Project, a Project endorsed by the MP. For by her statement, paragraph 8-13 it is apparent where the logging likely to interfer with that claimed contracted right in the claimant company, was to take place.
“8. In my capacity as Member of Parliament I am also responsible for endorsing applications that members of the constituency submit to Solomon Islands Government for specific funding under the Ministries.
9. In or around June 2015, a tribal group from Vanikoro approached me to endorse their Agro-Forestry Project for their customary land
on Vanikoro.
10. Now shown to me and marked Annexures “FT-3” is a true copy of the Project proposal.
11. The tribal group called Motufonofono had registered a business called Eastern Resources Company on or about the 10th June 2015.
12. The group have also obtained Exemption Order in 2014 from Hon. Dickson Mua, Minister of Forestry and Research. This was done prior to me being elected to be member of National Parliament.
13. I understand the Exemption Order has been cancelled upon the advice of the Cabinet of Solomon Islands.
For in exhibit 3 is a copy of the Project proposal addressed to the Minister for Agriculture dated 15 June 2015, by the Eastern Resources Company seeking approval and signed by the Chairman of the tribe Joseph Rangiseako, the Secretary, Heslie Moiki and the Vice Chairman, Pae Vakimaru.
For by Exemption Order (Legal Notice 106) dated Thursday 13 November 2014 by Supplement notice to the Solomon Islands Gazette, the Minister had exempted land from the provision of S.4 of the Forest Resources and Timber Utilization Act (the creation of offence provision in relation to any logging without compliance with the Act) and by schedule 1, to the Gazette Notice, the land is shown to be, together with land claimed for the growth Centre of the Constituency, land described and included in the 5 standard logging agreements benefitting the Claimant company.
The authority (since Eastern Resources Company is not an individual entitled to hold customary land)[2] given the Eastern Resources Company to carry out logging operations in Vanikoro, was by way of letter dated 10 December 2014, of the HGAMOTU KINGDOM House of Chiefs, Tikopia, Vanikoro.
Whilst the Representatives of the Ngamotu Kingdom tribes are listed in the letter,
Kafika tribe-Pae Aloha, Tafua tribe – Tilofenua, Taumako tribe-Rangiuvia, and Fanagarere tribe- Nukufetau, none of these representatives
are amongst the named tribal representatives of the 3rd defendant, [although the tribes are named].
The revocation of the Exemption Order on the 23 April the 2015 by the Minister (acknowledged by the 1st and 3rd defendants) was made after a purported further assignment of the right to log the land shown in the schedule 1, the “exempted land” (for the map of land marked yellow is the same as that identified by the Exemption) to Ngu Brothers (SI) Co Ltd by letter on the 1 October 2015. For in that letter the named individuals, the 3rd defendants, wrote inviting the logging company “to come and operate in our area ‘marked’ in the attachment” (areas marked yellow on the map).
The subject of the letter said:-
“ Re: Invitation and consent or NGU Brothers Co Ltd to Operate Under Legal Notice No. 106 Legal Notice, Vanikoro Island, (Pae- Namnangkulu) for Both Forestry and Agriculture Purposes”; the letter was signed by the individuals on behalf of the “four landowning tribes Tafua, Fangarere, Taumako and Kifeka”
There is, then clearly as issue over the ownership of the land covered by, for convenience of description, the logging licence no. 10366 ( to expire on 20 July 2018) (land assigned for logging under the five standard logging agreement in favour of the claimant company) for those found able to grant timber rights by the Executive in 2005, by statement of case the claimants company pleads have executed the five standard logging agreements dated 8 July 2012 and are native Vanikorans of the Anive, Viketene, Merekele, Bulowono Molo, Teluwopu and Melele tribes and that the 3rd defendants were non-native Vanikorans but “ethnic Polynesian people from Tikopia who settled on Tikopia in 1970s until present, but claim custom ownership over Vanikoro Island without basis in custom or in law”.
The defence of the constituency member in relation to the land about Taumako Bay, denied the claim that the 3rd defendants, (whom for convenience I shall call the Tikopians since they claim the whole of the island in cc 263/2016) had “No custom rights to invite the 2nd defendant (Ngu Brothers) to conduct felling, clearing and earth moving work in Vanikoro Island.”
The denial is in two parts, the denial the Tikopians had “no custom rights to invite” and the denial that the Ngu Brother had been invited. In other words, the Parliamentary member supports the Tikopian’s custom rights to invite, and accepts the Tikopian’s right to invite Ngu Brothers to deal with the timber resource.
Again the denial of the Tikopians in this manner raises their right, if any, in custom to invite work on the land and on its face must go to the standing of the Tokopians to deal with the land in that fashion, either with the constituency through the Tikopians as customary trustees of the land or with Ngu Brothers to log the larger part of the land claimed under the Exemption Orders.
(For while persons found by a Provincial Executive to be able to grant timber rights over customary land may not be all landowners, the very great presumption is that landowning groups control their forest resources and consequently from those landowners will come the “trustees” so enabled by finding of the Executive)[3]
Does an evidentiary presumption arise, that the Tikopians are the customary landowners, if the Constituency member accepts their claim
to deal with part of the land needed for the Development Centre, and so treats with them? In fact the Parliamentary Member, herself
a Tikopean, is not an authority recognized in law who can make such a determination of customary rights.
The difficulty the Tikopeans face in relation to the claim to deal with the greater part of the land for logging and that smaller
part for Constituency Development, is twofold.
The presumption accepted by the Parliamentary Member that the Tikopeans are the customary landowners rests principally, it would seem, with their self-assertion.
The second difficulty they face, in relation to the land likely to be required for the Constituency Development, is the absence of any action to resume, purchase or lease customary land in accordance with the provision of the Lands & Titles Act, Part V. For the Act determines the method to be used where the Commissioner of Lands or Provincial Government seeks to use customary land. If the Constituency Development centre proposal is not one countenanced by the Provincial or State Government for public purposes, for instance, it remains a private business concern. On the material filed, in the absence of a clear expression of intent by the Provincial Government, for instance and on the basis of the Temotu Vatud Constituency Annual Report, the named Constituency is neither a registered company, business name, partnership or identifiable groups who may sue or be sued in law. While the members report, 2015 given by the MP for Temotu Vatud (Annexure FT5) nominates Justine Tanema (CDO) Nau Mavae(AO) and Chris Tekulu(PO), it recites the Member of Parliaments total delegation of responsibility to them in the management of the funds. Clearly no public purpose may be presumed in these circumstances.
Such an Organization has not been shown to be an identity recognized by law as able to enter into contracts, sue or be sued in the absence of individuals named for instance trading as Valud Constituency and while there is a suggestion the Kingdom may have a part to play, the Kingdom is an amorphous thing, and is without power to deal with customary land unless process under the Land & Titles Act[4] or the Forest Resources and Timber Utilization Act[5] is strictly followed.
The statement of the Honourable Member of Parliament at paragraphs 23-28 (statement of Freda Tau filed 15 July 2016) names Mathew Forau Nukurei and Joseph Ratu who between them offered 5 hectares of land for the Development Centre and further recites a down payment and commencement of the project prior to acquiring the land for registration agreed by the two; in fact the landing of equipment to commence work was prevented by persons on the island, persons said by the MP to be the Directors of the claimant company and their agents.
For by an equipment Lease Agreement (exhibit FT-7) between Naya Company Ltd and Temotu Vatud Constituency, Naya leased equipment for clearing, road construction wharf construction and other purposes to the Constituency, for consideration expressed to be “60% of project value”. The agreement dated 1 April 2016, expressed to be for one year, was “signed by Temotu Vatud Constituency whose common seal is here unto duly affixed in the presence of”. The common seal of Naya Company Ltd was affixed but no seal nor witness appeared to sign where the agreement appears to have been signed by the Honourable Member.
The list of leased equipment, exhibit A to the Agreement was extensive. I do not need to make any comment about the efficacy of the
Agreement. Again, the actions taken by the MP in this circumstance by such an unregistered concern in the obvious knowledge that
land needed to be acquired from customary land owners in a reflection of the acts of the Constituency contrary to the legal rights
of the customary landowners.
For before presuming to deal with the land, whether for the Development Proposal or for clear felling and logging, the customary Landowners
able to sell the land (LT Act, Part V) or agree to clear felling (FRTU Act Part III) must first be consulted and approve.
To illustrate the obvious divergent claims to the land earmarked for the Development Centre, Eric Lono Repamu, the liasion officer of Vanikoro Lumber, by statement filed 27 July 2016, denied the claimed rights of ownership by the two, Forou Nukarei and Joseph Ratu:- “ They do not own any land on Vanikoro Island. The true landowners are (1) Teanu (2) Alavano and (3) Tanema people”. For Eric Lono Repamu was Project Coordinator for the economic Growth Centre, and in fact, land had been allocated for the Centre by the Chiefs of Membele in 2012, acquisitions process commenced, hearing convened, boundaries identified and survey carried out. “The whole process has stalled due to limited funds.”
This brings me to a consideration of the claimants’ authority to log for it must be premised on the authority of those duly found by the Provincial Executive able to grant timber rights. The five Standard Logging Agreement, as I say cover land claimed by Vanikoro Lumber Ltd in its Licence to Log. The originating Executive determination in 2005 concerning the claimant’s application to log is found in MP Freda Tau’s Statement of 15 July. (FT-12) Five Certificates covering the respective land holding groups in the areas of land and the respective named representatives who went on and executed the Standard Logging Agreement is exhibited in MP Freda Tau’s Statement, exhibit FT-13.
The land referred to in the Form II, Certificate of Customary Ownership (section 9) was “the area bounded red on the attached map.” But in FT-13 no map was attached. I am satisfied, however, that the map attached to the statement of Eric Repamu (filed 27 July 2016) is a map (ELR-2) of the same area bounded red referred to the Form ll. For Eric Repamu has by colour, defined the various areas referred to in the Standard Logging Agreement and the Company’s Licence, “Paiou to Lemene, Lemene to Lavaka” etc’ so that I am clear that the land the subject of the Exemption Order and the Economic growth Centre are both lands within the concession area to log granted the claimant company.
By Minutes of the Timber Right Hearing Meeting, Buma village (Vanikoro), headed “Department of Natural Resources, Temotu Provincial Government,” the Assistant Secretary recorded the proceedings on the 23 August 2004, and were to become the basis for the Provincial Secretary’s Form 3 Certificates given on the 16 February 2005 ( referred to above).
The applicant was Vanikoro Timber Ltd and by introduction the minutes read:-
“The Vanikoro peoples own local company known as the “Vanikoro Timber Ltd” applied to the Commissioner of Forests
to acquire Timber Rights in accordance to section (7) of the FRTU Act 1999”.
Those present were listed and in “Absent” the minute recorded:- “There was no absentee from the Tribal leaders and about sixty other elders in around the island were also attended”
By “Welcome” is recorded:-
“Mr. Chris Ramoli, the chairman of the Vanikoro peoples Association gave words of welcome to their chiefs, elders and people
who were presents. He congratulated them that all tribal leaders around the island have attended and thanked them for their full
representations around the island, apart from the settlers at Murivau Village”.
(I accept the reference to “settlers” is to Tikopian peoples).
The two named by MP Freda Tau as persons able to consent to the use of the 5 hectares for the Development Centre were not named by
the Executive as able to grant timber rights and nowhere are they shown to have rights as landowners.
The company, Easter Resources Company, the beneficiary as it were, of the Exemption Order in relation to the large tract of land shown by the Order, Schedule 1 has no landowning rights over customary land[6] and may not presume to interfer with the enjoyment of landowners customary land without their express consent. (Were Ngu Brothers, the 2nd defendant to presume to rely on the “special licence” if any, issued by the Commissioner of Forests as a consequence of the earlier Exemption Order the “Special Licence” does not entitle the holder to enter private land (customary land) without the authority of the owner. No such authority has been shown.)[7]
The Exemption Order was revoked by the Minister on the 23 April 2015. Consequently any presumed right to log or remain on the land has ceased.
I am satisfied the land the subject of the revoked Exemption Order was land covered by the claimant companies Standard Logging Agreements and that land was the subject of the felling Licence no.10366 held by the claimant company. The Commissioner of Forests may only issue one felling licence per area of land[8]. In any event, Eastern Resources Company had no rights over the claimed land and Ngu Brothers claims can only come through that Company.
This leaves the claimant company to satisfy the court in relation to the permanent injunction sought, that the 3rd defendants have no authority to restrain the claimants from logging their concession under felling Licence no. 10366. For it they are found to be but strangers without rights of interference over the land, they have no standing at law to attack the claimants’ agreements with the found “trustees” able to represent the landowners.
At this junctive, it is appropriate to address the claim in cc: 263/2016 for the claimants appointed representatives of Ngamotu Fonofono
Kingdom plead as part of their statement of case (filed 16 June 2016): -
“6. The Claimants ownership of Vanikoro Island is from time immemorial. The claimants ancestors had occupied the island until
they vacated the same in protest against the Colonial Government Hedman System in 1886”
“7. The claimants and members of their communities have returned to Vanikoro Island is about 1968 and inhibited the island again from there on”.
By statement of Eric Lono Repamu, the claim to ownership of Vanikoro was denied. The short history of the later occupation and settlement of Tikopians after 1954 was set out, including the reasons for permitting the first settlers, Ariki Kavika No.1 (who came to Buma on Vanikoro) and two of his bodyguards or Maru to settle with three Tikopian families.
According to Mr. Repamu, a mass migration followed, including Tikopians from settlements on Makira and Russell Islands.
As a consequence of a land dispute, a local court in 1983 was conversed at Santa Cruz between Walter Ofokirongo and the original landowners represented by George Pasi.
The decision of the court was:-
“1. The proper land ownership was George Pasi....
2. The property of the people of Tikopian outside differed land as owned by George Pasi, they must be taken away as soon as possible within a year. If they don’t take it off, George Pasi have to report them again to the Court.
3. The chief of Tikopia or (Defendant) have to pay court cost to George Pasi within a month $30 court fee.
Right of Appeal explained”[9]
There was an appeal, the Temotu Customary Land Appeal Court quashed the decision of the Local Court (for apprehended bias – Chief Benjamin Tua fed the Local Court Judges and officials). The case was referred back to the Vanikoro Chiefs who disbelieved the Tikopian history.
They found such people had been trespassing.
“Tikopians must leave the land and go back to Tikopia and they must leave early next 1988.”[10]
(Report of Chiefs sitting at Enua village on 16 June 1987)
(While the CLAC directed rehearing by the Local Court, it was first to go before the Chiefs)
No appeal were apparent. Any right of appeal has long since expired and is statute barred under the statute of limitations.[11]
On the 30 July 2007 this court considered an exparte application for interim injunctive orders restraining logging by Vanikoro Lumbers Ltd and Earthmovers Solomon Ltd brought by Father Joseph Rakatau.
Some part of the judgment refusing the summons for injunctive relief (which was struck out) and “staying the originating process pending amendment to the statement of claim (for the plaintiff’s assertion as landowners is but that and standing has not been established on the pleadings” is set out since it illustrates the absence of standing at that time to justify the courts consideration of the injunction.
“Mr. Tegavota relies on both affidavits of Father Joseph Rakatau who is of Tikopian descent. The Tikopians have resided on Vanikoro since 1960, well after “Taim faite”. His assertions of ownership by occupation are matters which I am sure would be in issue were the matter to proceed to hearing. There is no evidence by the Vanikoro persons names as able to grant timber rights, of any right in these Tikopians of a claim to those rights. That is also apparent from the denial by the Reverend Father of any permission to attend the timbers rights hearing.
The issue of locus standi in so far as the timber rights process and grant of logging licence is concerned, cannot arise in these circumstances. The Reverend Father says the Tikopians came to Vanikoro and reside, apparently with the consent of the Vanikoro Landowners, and no evidence of relinquishment of landowning rights to the Tikopians is apparent on the affidavits before me. In fact the opposite is the case as I have touched on the refusal of right in the Tikopians to attend the hearing. The time limited to bring proceedings to question the timber rights process has long expired.
Reference to my earlier decision in cc 181/07 cannot help, for in that case those seeking to be let in to argue, were members of clans claiming rights to the land in question. That case may be distinguished on the facts.
Mr. Tegavota says on the sufficient interest test espoused by the Court of Appeal in Gandly Simbe’s case, that the plaintiff has shown by the long term possession of this land at Vanikoro the test has been satisfied. Possession in these circumstances may not afford these outsiders [the Tikopians] rights to argue the logging arrangements agreed to by those nominated to represent landowners under the Forestry Act.
Occupation and possession are different concepts and in custom may give risk to varying rights and obligations amongst the occupiers and owners.”[12]
Nothing has changed to afford the Tikopians standing to come to court to challenge the logging licence no.10366 when the Licence followed fresh 5 Standard Logging Agreements with those enabled to grant timber rights, a Licence issued by the Commissioner of Forest in accordance with the Act (omnia praesemuntur rite esse acta] – presumption of regularity not upset by assertions of the defendants), for their representatives whether in cc 263/16 or those 3rd defendants in cc 249 (Claiming custom ownership implied in their letter of invitation to Ngu Brothers to log) have shown no representative standing as landowners to either usurp the exercise by the claimants of its right to log over the various lands identified by the map, ELR-2, or standing in custom to, in cc 263, claim damages for trespass.
Ms Bird for the Claimants, cc 263, has sought to refute the presumption of regularity of logging licence A10366 which was renewed on the 20 July 2015.
I have read her submissions with care, but where she points to failings about matters leading to the Provincial Executive decisions in 2005, the questions no longer are relevant, as long out of time. While she attacks the procedures followed leading to the renewal of the licence by the Commissioner of Forests on the 20 July 2015, she has not addressed the relevant of the five standard logging agreements [13] (stamp duty paid and consequently in evidence] given by the respective tribal representatives of the land parcels making up the logging concession, agreements made in July 2012. I accept the evidence of the Director of Vanikoro Lumber, Mr. Repamu where he recounts, at 3 the fact the Licence issued after process. For by Regulations[14], an approved timber rights agreement is necessary as part of the necessary application to the Commissioner. The agreements have been exhibited. The Commissioner in the absence of evidence to the contrary, has issued the licence, effective for five years.
In any event, where these claimants are found to have no standing to claim, as strangers they have no standing to seek a judicial review of any act of the Commissioner under subordinate legislation.[15]
For while a determination of the Provincial Executive is neither final nor binding such as to raise an estoppel by judgment against these Tikopians or anyone else,[16] nor that ruling of the council of chiefs, (Enua Village, 16 June 1987) no evidence in support of the Tikopians ownership sufficient to warrant this court’s consideration has been advanced.
By statement of Ezekiel Tamoa (filed 2/9/16) a Director of the 2nd Defendant, Vanikoro Lumber and an inhabitant of Vanikoro, he annexed report of an inquiry by the British Colonial Government concerning the unaccepted sale by Vanikorians to the French, and he denies either Mr. C.N.Praise or Mr. M.Morava are descendants of the two named land sellers in the French document recorded in the report of the Inquiry. For he says, they advance no evidence, no proof of their claim. I accept Mr. E. Tamoa’s statement on this assertion by Mr. Praise and Mr. Morava as refuting the suggestion they were descendants of Vanikorians named as “sellers” to the French so long ago. Mr. Andrew Mua has by statement [filed on 26/9/16], deposed that he is a member of Honiara City Council and of Tikopian descent from the highest chiefly clan of Tikopia, known as “Chief No. 4” and has traditional knowledge of Tikopia and its settlements outside of Tikopia Island. He deposes that the Claimants (in cc 263) do not own any land on Vanikoro. He further says it is very wrong to claim ownership over Vanikoro Island when it is well know that the chiefs of Vanikoro Island “permitted the settlement of our people on Vanikoro Island”. He further says from the names of the Claimants, they are the same people who brought proceedings in cc 227 of 2007.
I have referred to the judgment in that earlier case.
I accept the evidence of Mr. Mua.
Since these proceedings have been instituted by persons claiming to represent the Ngamotu Fonofono Kingdom and Communities of Vanikoro but presume ownership of Vanikoro to base their claim to damages for trespass against the claimant in cc. 249, and since I am satisfied they have no basis in fact to such ownership and that on the excepted evidence of Mr. Mua, such claim is all the circumstances is frivolous and vexations, I propose to award costs on an indemnity basis.
The claimants reference to “Peter Dillon of Vanikoro” by J W Davidson and OHK Spate”[17] may be used to ascertain the reliability of the claim. The book is a historical record of the time to which it relates[18] Quoting selectively from Chapter 10:- (“Peter Dillon of Vanikoro”)[Statement of E R Repamu filed 26/07/16; “ELR
4”] at 174;
“And on 9 September he received his first visit from Vanikorans...
At 11am I espied a canoe coming out of Charles Lushington’s Bay which by noon reached the ship, rowed by one middle aged man and two youths...
This being, I considered, the first Mannicolan who ever ventured out to a ship at sea, I was determined to encourage him...
Later he offered them more cloth, which they declined, indicating that they had no coconuts to give in return.
Whether this behavior originated in innate honesty [a failing with which the generality of South Sea islanders cannot be justly charged]
or that they had already sufficient of the article on board, or whether they dreaded some design on my part, cloaked under the specious
shew of generosity, I could not decide.
But during the afternoon four other canoes came out, bringing coconuts and taro and “four small fish”. In one of them
was an old man who seemed willing to come on board.
Dillon did not then encourage his would-be visitor, as Ratia was away with the boats. Next day however when he kept both the Tikopian
interpreter [Ratia] and Buchert with him, he allowed four Vanikorans to climb on deck. One of them he wrote, “was a man whom
I suppose to be about sixty or sixty five years of age, from whom I expected to obtain most important information”. But he
found that interrogation was unexpectedly difficult. Though he could understand Tikopian, he could not speak it, so he was compelled
to communicate with Ratia through Buchert-a German-speaker by birth-whose knowledge of Tikopian, he discovered, was no more adequate
than his limited English. Moreover, he had repeatedly to attempt to stop Ratia answering the questions himself instead of putting
them to the elderly Vanikoran. The experience was frustrating and he later commented: “as Swift justly observed, everything
suffers by translation except a bishop”.
And at 170, speaking of Dillons time immediately before his eventual landing at Vanikoro in September 1827 to confirm the facts surrounding
La Perouse’s shipwreck on the island:
“Meanwhile at Tikopia, Dillon was still within a world that was familiar to him, not only because of his previous calls at the
island but also because the Tikopians, unlike their neighbours of Vanikoro, were Polynesians and possessed a language and a culture
akin to those of Rotuma and Tonga.”
Since the Tikopians have in CC 263, pleaded ownership since “time immemorial”,
It would seem even[19] then, it was difficult to separate facts from opinions of the Tikopian, Ratia, then sought to be used as an interpreter. The quoted
passage shows by its historical authority, the acknowledged differences between Tikopians and Vanikorans and does tend to undermine
the assertions of Messrs. Praise and Morava. I do not accept their evidence.
Later in time (as a consequence perhaps of the interest engendered in the European world that the final resting place of La Perouse’s ships, “Brouselle and “Astrolabe” had been found by Dillon on Vanikoro), a form of agreement for sale of land was effected on the 29 March 1884 between persons as chiefs of Paiu, Vanikoro and the French Caledonian New Hebrides Company.[20]
The Chiefs’ marks of Mione and Futtey were made on the document. I need not pursue the trail leading from the document, for it rather presumes some right in the company to later seek an interest in the land, an interest never acknowledged. What does interest this court is the assertion, in the witness’ joint statement at 7 that:-
“7. We can confirm that Chief Mione is Michael Morava’s descendant and Fusi is Chris Nuku Praise’s descendant”.
Again, this (apart from the reversal of genealogical connection expressed) is self-serving oath helping and but assertion, rather than fact established by evidence.
The claimants in Cc 263 by broad brush treatment presume standing as Kingdom representatives of Vanikoro. In relation to their claims, they must show sufficient standing before this court to be heard. Since they have been put to proof, I find their standing to be heard in cc 263 has not been supported by the evidence. The Claimants case has been made out in cc 249. On balance, no mistake has been shown by the Commissioner of Forests to justify interference with the claimants licence to log.
I make the followings orders
CC: 249 of 2016
And CC: 263 of 2016
__________________
BROWN J
[1] Civil Procedure Rule 2008, R 3.10
[2] S.241-Land & Titles Act-Restrictions on disposition of customary land.
[3] S.239-Land and Titles Act.
[4] Land Titles Act, Part V
[5] FRTU Act, Part II and III.
[6] Land Titles Act, S. 241
[7] Land Titles Act S.40
[8] Choe Integrated Development co v Maekera (2012) SBCA12, CA-CAC 01 of 2011 (30 March 2012).
[9] ELR-1
[10] ELR-2
[11] Limitation Act (Cap.18)
[12] Statement of E.L.Repamu cc 263 filed 26/07/16, “ELR-7”
[13] Statement of EL Repamu filed 8/06/16, ER-1
[14] Forest Resources and Timber Utilization (Felling Licence Regulation 2005 S.7)
[15] Rules, 15.3.7
[16] Simbe v East Choiseul Area Council (1999) SBCA9, CA-CAC 8 of 1997 (9 February 1999) paragraph 22.
[17] Oxford University Press 1975
[18] Land Title Act S.239-(2)
[19] “F-LR-4” to statement of Eric Lono Repamu filed 26 July 2016; cc 263 of 2016
[20] “CM-1” to joint statement of Chris Nuku Praise and Michael Morava
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