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High Court of Solomon Islands |
IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction
BETWEEN: MR. AUGUSTINE KAHUIRAMO - Claimants
AND SEBASTINE REHOMAE
(Representing the Huniahia tribe, the
Tribal land owning group, of Arina/
Waipini, ward 20, East Are’are, Malaita
Province)
AND: POLY LOGGING (SI) LIMITED - 1st Defendant
TA’AIWARA CORPORATION - 2nd Defendant
ASSOCIATION
ATTORNEY GENERAL
(Representing Commissioner of Forests) - 3rd Defendant
Date of Hearing: 2 November 2016
Date of Judgment: 27 January 2017
Mr. B. Upwe for claimants
Mr. M. Tongarutu for 1st defendant
Mr. M. Ipo for 2nd defendant
Solicitor General for 2nd defendant
Application to strike out logging proceedings
Brown J:
In August 2014 a Category C claim was filed by the representatives of the Huniahia tribe of Arina/Waipini land, Ward 20, East Are’are, Malaita Province against these defendants seeking damages for trespass and conversion of trees felled and exported from the land, compensation for the environmental destruction caused to the land, an order directing the Commissioner of Forests to terminate a logging licence issued to the 2nd defendant, Ta’aiwara Corporation Association for alleged breach of the licence conditions, an account of the logging moneys received from export of the logs, any other order deemed fit by the Court, and costs.
Classification of proceedings is provided for in Chapter. 2.3 of the Rules. By 2.14(c) a claim other than those kinds described as falling into R. 2.14(a) (Cat. A) or R. 2.14 (b) (Cat. B) fall to be decided in category C proceedings. Here the claimants have chosen to institute their proceedings under R. 2.14(c) (Cat. C), proceedings which on their face would appear to be more properly categorized as A since they need case management, alleging as they do factual issues about trespass onto particular customary land, the actual or extent of environmental damage caused if trespass is found, whether the conditions of a logging licence have been breached (as contrasted to whether or not the licence had been irregularly obtained) and factually whether the 1st and 2nd defendant are obliged or contractually bound, perhaps, to provide any account for moneys received from log exports from Arina/Waipini land.
The claim has come before me for trial of the application to strike out on Wednesday 2 November 2016 following very many interlocutory applications and orders made in the interim.
The reason the categorization is so important is that where judicial review of executive or legislative action is to be undertaken, Chapter 15.3 of the Rules come into play and since such proceedings are wholly different in nature to proceedings contemplated by R. 2.14(a) (contractual, tortious or statutory causes of action), judicial review of executive or legislative action falls to be considered as a category C claim.
Whilst these proceedings have been instituted as a Category C claim, the statement of case, (R. 5.3) accompanying the claim does not presume to seek declaratory or other relief in relation to an Act or subsidiary legislation as it affects these claimants, rather they claim, as a matter of fact that a licence to log given the 2nd defendant did not adversely affect their customary land since the licence never contemplated logging Arina/Waipini land.
The claimants, at clause 6 of the statement of case, state Arina/Waipini customary land was not covered by the licence. There is no relief claimed against the Commissioner of Forests, per se, although the claimants ask for an order beyond the powers of this court, to direct the Commissioner of Forests to terminate the licence issued to the 2nd defendant. Whether the licence is to be terminated or not is a power afforded the Commissioner in accordance with the Act, and whilst the Commissioner may use findings of fact by this Court to justify his action or inaction, the discretion is with him and does not rest with this Court which is not the decision-maker.
Again while the claimants seek, in 4 by claim, an order that the licence given the 2nd defendant be declared invalid for non compliance with the Forestry Act, (conditions 3 and 5 of the licence) the mandatory order will not lie for again the court may not usurp the decision-maker’s function in the first instance. In the circumstances of this case, however, as a stranger to the licencing process, whose rights if any, are against those allegedly adversely affecting their land, the 1st and 2nd defendants, and having regard to the requirements to be satisfied of the claimants standing at the outset[1], I decline to consider further, the claim to invalidate the logging licence A101241 and strike out that clause 4 of the claim for the reasons given.
At the same time as the Category C claim was filed, as urgent ex parte interlocutory application was made, an application which was granted on the 13 August 2014.
The orders made were;
As a consequence of the ex parte orders, the 1st and 2nd defendants, through their solicitors, sought to have the orders struck out on the basis of an affidavit or statement by Malachi Maumamura,
who deposed that these claimants are from Naonai Iorairamo of East Are’are, Malaita and cannot own Arina/Waipini Customary
land.
The application to strike out as an abuse of process since these claimants have no standing to represent the landowners of the particular
customary land, in the alternative, sought to set aside the exparte orders (above). In addition, an affidavit of Silverio Painaitara was filed in support on the 21 August 2014.
The application to strike, it would seem, has remained until today notwithstanding various other orders varying the original ex parte order, an application for contempt remains to be dealt with, all done in the light of a defence by the 1st and 2nd defendants filed on the 18 September 2014. Various other counsel have represented these parties until the representatives named today have appeared.
Before proceeding to address the affidavit evidence brought by these parties, the defence needs to be addressed, since it puts in issue the outstanding matters which the Court will need to address in relation to the application to strike.
In issue is the standing to bring these proceedings for the ownership of Arina/Waipini land by the Huniahia tribe claimed by these claimants, is denied
By paragraph 4 of the defence, the 2nd defendant says the felling licence covered the lands claimed, Arina/Waipini for timber rights had been granted by the Arina/Waipini landowners as evidenced by the execution of Form 3 & 4 prior to the logging operation.
In so far as the claimants deny the consent to log Arina/Waipini land, the defendants plead Huniahia is the name of a settlement within the Urahaniaraha tribal area, Arina/Waipini land, and lack of consent by the claimants is irrelevant as they do not own Arina/Waipini land. The illegal operation on Arina/Waipini by logging is denied as is the environmental destruction.
By original statement in support, Augustine Kahuiramo and Sebastine Rehomae claim as representatives of the tribal group owners in
custom of Arina/Waipini.
By defence and answer Silverio Painaitara for the 2nd defendant, has by his sworn statement of the 21 August 2014, annexed various material forming part of the logging process leading
to the grant of the logging licence.
At “SP1” is the notice of meeting by the Malaita Provincial office in relation to the application by Ta’aiwara Co-operation Association Company (2nd defendant) for logging over particular Customary land, the company of which the deponent is a director and part owner. The land intended to be logged included “14 Arina Waipini” and Malakia Mamamula, (the deponent earlier referred to whose statement was filed by the 2nd defendant) was then named as trustee.
By minutes of the Provincial Executive (“SP2”) the land Arina/Waipini was mentioned amongst land agreed to be logged by the trustees, but with the notation in the Determination column, “listed Trustee not present”
By letter to the Commissioner of Forests under hand of the Malaita Provincial Secretary dated 15 May 2013, Forms 3 & 4 in respect of Ta’aiwara Cooperation Association together with a Certificate of No Appeal were sent. (“SP3”). The felling licence A101241 issued on the 23 August 2013 although it did not specify the land, Arina/Waipini (“SP4”)
By Provincial Secretary letter dated 22 April 2014 to the Commissioner of Forests, headed
“Re: Re-consenting pending land under Ta’aiwara Cooperation Association.
Please find enclosed Assignment of customary land and further Form 3 certificates to validate the inclusion of these pending customary
under Ta’aiwara Timber Right applications. Grateful therefore Sir, if you can facilitate the same once again for the applicant.
The customary lands include OTEPAINA, ARINA/WAIPINI. (“SP7”)
Also forming part of that annexure is a letter by the Cooperative Association to the Provincial Secretary confirming the primary
and secondary right-holder’s [of Arina/Waipini lands] agreement to include the land in the logging concession.
Amongst the trustee names in the letter are Malachi Maumamura (who signed) and Sebastine Rehomae (whose signature is absent) Malachi Maumamura is I am satisfied, the original trustee absent from the Provincial meeting when approval to log was recorded, and hence, left pending in relation to this particular land.
The fact of Sebastine Rehomae’s absent signature has not apparently precluded the Provincial Executive from acting on the request
to include the land in the logging concession.
Whether Sebastine is a primary or secondary (apparently the argument by the 2nd defendant) land holder is not established on the evidence of the letter.
By minutes of the discussion between Arina/Waipini landowners and the licencee on the 17 June 2014, a record of decisions in relation to work carried out, as set out in the agenda, is annexed, (“SP8”) and includes the names Barnabas Rehomae. The deponent Silverio Painaitara says that person is one and the same as the claimant. Further meeting are recorded and annexed, where further business affecting the licence and landholders was recorded. The minutes of the 17 June record no dissention by the said Barnabas Rehomae to the logging. The use of the minutes in this fashion illustrates the ongoing relationship between the “landowners” and the licencee whilst logging was taking place.
The inclusion of the land originally recorded to log but left pending followed the confirmation by the land trustee originally named, Malachi Maumamura ( and others) evidenced by the letter so signed by these trustees (“SP7”)
The inclusion in the statement of Silverio Painaitara by annexures, of the minutes of the meetings between landowners and the licence, on balance satisfies me the Ta’aiwara Cooperation Association, the 2nd defendant accepted the obligation to treat with the landowners. On reading the annexures, it is clear the relationships was amicable and reflected what was seen by the landowners as mutual obligations between the parties. The minutes do not disclose dissention amongst the landowners in relation to the logging, dissention attaching to these claimants.
The fact that the original trustee named before the Provincial Executive at the time of the acceptance by the landowners for the inclusion of various lands for logging, Malachi Maumamura, later endorsed (“SP7”) the inclusion of the land and the fact that the Executive by the Provincial Secretary’s letter of the 22 April 2014 (“SP7”) wrote to the Commissioner of Forests to include this land in the licence A101241, raises the presumption of regularity is so far as the logging licence is concerned. Certainly neither the Commissioner of Forests nor the land trustees deny its inclusion.
The existence then, of the valid timber rights agreement (Form 4) is “an indispensable perquisite of a valid licence”[2]
While the land trustee has signed the letter (“SP7”) by the Ta’aiwara Association, the Provincial Executives’
subsequent letter to the Commissioner of Forests fails to mention the Timber Rights Agreement or Form 4. So while the licence may
have issued, and the landowners and licence have proceeded amicably, it would seem until these claimants have separately instituted
proceeding, the absence of the Form 4 may be said to have vitiated the licence, if in fact there was no Form 4 executed. For although
the annexure “SP3” speaks of a Form 4, since the particular land block was postponed from logging, it is not clear whether
a Form 4 in anticipation of the trustees approval and signature, in relation to Arina/Waipini land was included and sent to the Commissioner
of Forests. For reasons going to the standing of these claimants to bring proceedings, this issue is not relevant for determination
at this time.
The claimants have had their ownership of the customary land attacked by the 2nd defendant association which is clearly an association of land holders willing to work constructively with each other and others on the land to advance what they see as their mutual interests[3]. Again these claimants have by virtue of the ex parte orders obtained and effectively still in force, wholly disrupted the Associations aims and no doubt caused disruption in the community for their own purposes.
Whether they are landowners in the customary sense who must be included in any Form 4 agreement remains for argument perhaps in other
proceedings.
The implied suggestion is that they are but secondary land holders, for the 2nd defendant, by Silverio Painaitara’s statement, annexure “SP8” has included one of the claimants as attendee at
the landowners meeting on the 17 June 2014. (No objection to the work of the Association was recorded in those minutes as having
been raised by “Barnabas Rehomae” at that meeting).
The 2nd defendants, through both statements in support, clearly deny standing in these claimants to maintain the action “as they are not the rightful customary owners of the Arina/Waipini land”. (Statement of Silverio Painaitara dated 21 August 2014, paragraph 20)
The named trustee Malachi Maumamura says “I deny that the claimants are from the Huniahia tribe as deposed as there is no such tribe in our area. I say that the claimants are from the Naonai Iorairamo of East Are’Are, Malaita Province and therefore they cannot own the Arina/Waipini customary land” (statement, paragraphs 3 & 4)
Other landowners obviously have consented to the logging operation by their own Association as is evidenced by the minutes of the various meetings.
There is no judgement predating the licence or subsequent advice by the Provincial Executive, by a local court on the question of customary ownership. Consequently the claimants challenge to these logging operations within the land lies with those determined as entitled to grant timber rights, otherwise “Any dispute between those persons and members of their tribe in relation to the logging operation is an internal matter to be settled between the members in the proper forum”[4]
The fact of land ownership is not enough to disrupt the logging operation once the Executive has determined “trustees” as it were, for all the landholders entitled to grant timber rights. As I have said, aggrieved land holders may have rights in personam to a share of the proceeds of logging but once the land has been given up for logging pursuant to the Executive inquiry process, disputes between land holders then is an internal matter.
The absence of the Form 4 in the statement by the defendants, is a separate issue from that of the ownership question, since it goes to the validity of the licence and not of these clients standing to institute these proceedings; never-the-less it risks unravelling the matrix of acts leading to the actual logging, sale of timber and associated works by the Association since the licence was granted, were persons of sufficient standing minded to argue the issue. I am not satisfied these claimants have sufficient standing.
The ownership issue, at the outset when this court make the ex parte injunctive orders has, after defence and statements filed in support raised a serious doubt in this Courts mind concerning the plausibility of the claimants rights of ownership of this customary land, and when the court has documentary material by way of the various minutes of meetings of the landowners and the licencee, the court is not satisfied these claimants have standing to represent any such landowners. Their assertions are not supported by any intrinsic evidence.
Mr. Ipo correctly says the claimants have shown no evidence of ownerships leading to the institution of these proceedings, and while steps have be in place to have a customary tribunal address this issue, the fact remains but assertion, denied by the 2nd defendant. The balance of related evidence (by these minutes of meetings between land holders and licence) rather favours the 2nd defendant since the Association is comprised of those very land holders affected by the logging and whose representative or trustee, acceded to the Associations proposal to have this land, (postponed at the Executive hearing), included in the licence at a later time, as shown by the Executive’s request to the Commissioner of Forests.
The preponderance of documentary evidence, then favour the 2nd defendants plea that these claimants are not “landowners” and consequently in the absence of intrinsic evidence of authority, had no standing to begin these proceedings.
Whilst it is but statement from the bar table Mr. Ipo says the relationship between the contractor, the 1st defendant and the licence, the 2nd defendant has broken down. A reasonable assumption is that the Association of landowners with the licencee has been shown to be unable perhaps to manage recalcitrant ones, in this instance, the claimants, have disrupted the business. Be that as it may, on the balance of probabilities, on the basis of the evidentiary materials on which I have relied, I am not satisfied the claimants had standing to institute these proceedings.
While Mr. Upwe for the claimants, points to the hiatus, as it were, between the original reference by the Executive to the Commissioner of Forests for the issue of a logging licence, and the subsequent validation letter by the Provincial Secretary (for the inclusion of Arina/Waipini land) (“SP7”) as having evidenced a failure of the Timber Rights process, I am satisfied, since the named trustee ( who was absent when the determination was made to include the customary land in the licence) subsequently consented, as appears from his signature (“SP7”), and that such acts comply with the intent of the legislation. I am further satisfied having read paragraph 9 of the joint statement by the claimants (filed 5 August 2014) where they said, “We did not attend (the Timber Rights determination) because we do not want logging on our land. See Exhibit AKSR 03 here to for a true copy of Form 1. As a result Waipini or Arina land was omitted from Form II”, that the claimant had an opportunity to be heard at the determination and that the Provincial Notice of Meeting to Determine Timber Rights over various customary lands ( “SP1”) named “14 Arina/Waipini – Malakia Mamamula as trustee”
I accept the evidence of Silverio Painaitara on this aspect (statement, paragraph 5) who says
“At that timber right hearing, the second named Claimant Sebastine Rehomea was present but did not object any grant of timber rights over the Arina/Waipini land or say anything except his brother Paul Tataiora who advised the Malaita Provincial Executive to defer the Arina/Waipini land since Malachi Maumaumaru who consented to timber rights over the same was not available. He further emphasized at the timber rights hearing that Mr. Malachi should have any final decision regarding any timber rights over the Arina/Waipini land. He did not object timber rights over it as well. It should be noted that Mr. Malachi was not available during the timber rights hearing and because of his absence; Arina/Waipini land was deferred and regarded as pending.”
The supporting evidence is that of the Provincial Executive (“SP3”) where the fact that, in the named lands; 6. Arina/Waipini was included under the heading “ Following the determination hearing the following was agreed upon by the trustees” – while in the Determination column, “ Listed trustee not present” is noted. This accords with the statement at 5.
I have heard Mr. Upwe on this, for where persons fail to avail themselves of opportunities to be heard on the very issue now before this court, cogent factual reasons need be advanced to overcome the presumption these persons had, at the time failed to act and in the absence of appeal, may not now presume to state a case. I prefer the evidence of the 2nd defendant.
I reject Mr. Upwe’s argument, that these landowners failed to grant timber rights and needed to be identified before the determination, for on the one hand the claimants say they did not attend while aware, and on the other hand, on the evidence of the 2nd defendant, did attend and accepted the situation. Mr. Upwe’s argument rather profers the law but does not address the facts to be ascertained on the evidence.
I consequently find in favour of both defendant’s on the claim to strike out the proceedings for want of standing in these claimants as representatives of the Arina/Waipini landowning group.
Of course that leaves the various interlocutory orders to be dealt with, orders made in relation to the logging proceeds.
I see that the judge of 1st instance excused these claimants from liability to meet the damages flowing from the grant of the original ex parte orders and I would imagine the defendants who have had no real opportunity to argue this, are somewhat aggrieved. It does rather
illustrate the dangers of granting ex parte orders of this nature without a proper undertaking as to damages required by the Rules.
There is application pending for contempt. In the light of the ex parte nature of the original injunctive orders, the clear argument concerning the particular logs felled from the land and the long delay before hearing, I dismiss the application for it would be unjust in the extreme to entertain the application in the circumstances.
I will stand the remaining matters of the moneys in trust over for 2 weeks to enable counsel to consider appropriate orders to resolve these matters, failing which I shall order the moneys to be returned to those providing them.
The fact that I have found incidentally the licence possibly flawed, will not alter this determination to have the proceedings struck out for the claimants have no standing in these proceedings to seek to benefit.
The 1st, 2nd and 3rd defendants shall have their costs of the proceedings.
__________________
BROWN J
[1] Rule 3.42
[2] Simbe v East Choiseul Area Council (1999) SBCA9, CA-CAC 8 of 1997 at Paragraph 16
[3] See minutes of meetings, statement of Silverio Painaitara
[4] Tovua amors v Meks anors (1988/89) SIL R 74
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URL: http://www.paclii.org/sb/cases/SBHC/2017/56.html