Suhara v Attorney General [2017] SBHC 64; HCSI-CC 562 of 2015 (5 December 2017)

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Appeal pursuant to Section 79(3) of the Land and Titles Act in relation to the rejection of the appellant’s claim to benefit by compensation following compulsory acquisition of lands for public purposes.

This is an appeal made pursuant to section 79(3) of the Land and Titles Act. The appellant’s seek declaratory orders setting aside the decision of the Commissioner of Lands made of 4 August 2015 rejecting the appellants claim for compensation.
Where compulsory acquisition of land has occurred, any person claiming an interest in that land may seek compensation.
Section 79-(3). If the claim has been rejected or the claimant is dissatisfied with the offer, he may within three months from the service upon him of the notice or the offer as aforesaid, appeal to the High Court, which may confirm the Commissioner’s rejection of the claim or his offer, or assess such amount of compensation (if any) as to it may seem just, or remit the matter to the Commissioner with a direction that an offer be made under subsection (2).
The facts relating to the Minister’s declaration pursuant to section 71 (1) of the Land and Titles Act declaring the area known as the Tina River Hydro Project as a land area for public purpose and thus compulsorily acquired are as follows;
By notice dated 20 August 2014 the Minister for Lands stated that the “core area” along the Tina River had been compulsorily acquired, for public purpose in the nature of a hydroelectricity generating project. Persons and tribes who may have interests in the acquired land had three months in which to submit claims for consideration for compensation. It is conceded that these applicants had made submissions stating that it was one of the land-owning tribes within the core area being acquired by the Minister as demarcated in the map attached to the Ministers notice of 13 August 2014.

The appellant’s claim for compensation included particular documents which are included in the agreed and not agreed bundle of documents in both trial books. [I have by consent, had regard to both books].

On 4 August 2015 the Commissioner of Lands, the appropriate authority, sent a notice of rejection of claim to these applicants who had claimed as landowners affected by the resumption of the core area. The notice of rejection it is alleged, did not state any reasons why the claim was rejected. On 11 November 2015 these appellants filed appeal in this court seeking inter-alia that the decision of the Commissioner of Lands be set aside.
By later separate index to trial book filed on 26 October 2017 the appellants in a schedule, listed documents provided the Commissioner of Lands, documents not, it is claimed, addressed in the determination by the Minister.

Documents and Appellants Analysis	Date	Page No. in Agreed Bundle
Guadalcanal Province Executive determined that the Appellant, Nelson Kepule Ra’a as a trustee over Nala land. As a trustee, the Appellant possess a prime facie evidence of ownership over Nala land. This should be a notice for the Respondent to further investigate and call for a conference with the appellant tribe.	29/09/2005	4-6
Form IV (Standard Logging Agreement) showing the Appellant Nelson Kepulu Ra’a of the Koenihao tribe signing as a trustee of the Nala land with the Bahomea Logging Company Ltd. Again an indicator of the Appellants having property rights over Nala land.	29/09/2005	8-21
Letter from Chairman, Malango House of Chiefs to the Appellant, Malango House of Chiefs to the Appellant. The letter states that the Koenihao tribe is still free to be considered as the tribe owning the Nala land for the purpose of the claim for compensation for the Tina River Hydro Project. The letter further states the inability of the Koloisi Tribe to challenge the Koenihao tribe over ownership of Nala land for 3 grounds (1). There is no existence of such a tribe in the Malango area (Hydro Project area); (2) no land was identified to be owned by such a Kolobisi tribe, and (3) such tribe is yet to be registered within the Malango House of Chiefs Council.	30/08/2012	23
Letter from the Appellant relating to drilling activities within Nala Land. Therein the Hydro Project Office and the Koenihao tribe requested a consultation meeting with the Project office and the Ministry of Mines and Energy and Resources.	18/11/2013	28
Another letter from the Malango House of Chiefs to the Land Manager of the Hydro Project Office, stating that the Koenihao’s claim of ownership over the Nala land and the boundary thereof was undisputed. The Project Office which was highly involved in the discussions with the Respondent had been notified directly by House of Chiefs within the Locality. This letter requested a meeting with the Project Office and those responsible authorities.	20/04/2014	28
All correspondences passing between the Appellants, the Tina Hydro Project Office, the Ministry of Mines and Energy and the Project Office. The Appellants are so concerned that the Project Office did not indicate a positive response to their letters and emails to be considered as a tribe that owns land within the core area.	2013-14	30-58
Copy of submissions by the Appellants to the Hydro Project Office for claim of ownership over Nala land. Further, this submission was provided to the Respondent by the Hydro Project Office amongst other documents.

It would appear from the Project Managers letter of 16 May 2014 that the issue concerning the project was, “where Nala is located”, not the ownership of NALA land. I reproduce that letter omitting formal parts.
“16 May 2014

Your letter states that “Koenihau Tribe together with its-tribe Gaegae has been denied on receiving benefit on their land for illegal carrying out of some drilling activities”.

I advise that the drilling activities carried out in December 2013, were authorised activities in accordance with the Consent Agreements between the Solomon Islands Government and representatives of the purported landowning tribes. I note that representatives of both Koenihao and Gaegae signed these Agreements and received the Consent Fee.

Under those agreements tribes whose land is affected by major work activities, including excavation, drilling and clearing of vegetation are entitled to compensation at the rates specific in the agreements.

For the avoidance of confusion I confirm that if Koenihao (or its sub-tribe GaeGae) is established to own land on which these lawful activities of drilling and vegetation clearing took place, they will be entitled to further compensation accordingly and his compensation will be paid.

We note that your claim is based on ownership of Nala land. In support of this ownership claim, you have provided correspondence from the former Chair of the Malango House of Chiefs, and a description of how the boundaries of Nala Land are defined.

As I discussed with you, the matter at issue really is where Nala land is located. Your supporting letter from the former Chair Malango House of Chiefs says that Koenihao Land (Nala Land) borders Vurahairauha land on it upper stream boundary.

A recent decision of a joint panel of the Bahomea and Malango House of Chiefs considered rights to logging proceeds in respect of land variously described as Vurahairauha, Kilikokodaki and Vahehaipot. The decision did not clearly define the Southern Boundary of this land and the matter of this boundary and its location in respect to the proposed Core Land boundary is still unclear.

We note that we have requested that Koenihao draw the purported boundaries of Nala Land on a map (provided) so that our surveyor can asses the overlaps (if any with adjoin claims. It seems likely that a visit to the land, with the surveyor will be necessary to clarify various boundary claims.

We invite Koenihao to be part of surveying this boundary and reaching agreement between the neighbouring tribes as to where the boundary should be.

There would appear to have been a survey map of NALA land forming part of the Koenihao tribes’ response to that letter of the Project Manager. The letter, of course, predated the Commissioners determination to reject the claim.

The reasoning of the Commissioner leading to rejection of the claim refers to such map, also. The record, “Claims not recommended for acceptance” with respect to the Koenihao tribe’s submission is at pages 118a, 119 and 120 of the Trial Book-Not Agreed Documents. I reproduce the reasons [without copying the maps].
“Koenihao Tribe is known to be a Garavu Tribe (big line) and has previously made claims on the initial dam site at Senge and the drilling activities at the Vurahairaua stream. It is not known how they could have stretch their interest to an area to the north of the core land known as NALA land, but tribes do have interest on different portions of land. Their submission of claims to the Commissioner of Lands is done by their representative, Wilson Suhara. It is very difficult to verify whether there has been tribal meetings because minutes of the meetings were not produced. However, it is understood that minutes do not always form part of this sort of tribal submissions which maybe the reasons for the unavailability of minutes in Koenihao’s submission.

The customary land evidence received from the Koenihao tribe includes the survey of the NALA land which shows the 5 sacred/tabu sites. The description of the land is basically shown in the survey that was done, although they have a written description of the NALA land. Apart from that there was no evidence of migration routes, no genealogies, names of devil, totems and artifacts.

It was also noted that apart from the letter written by the Claimant of the Malango House of Chiefs concerning the NALA land, there was very little evidences of Chiefs Hearing, Customary Appeals Court and High Court decisions concerning Koenihao’s land ownership in the area acquired for the Tina Hydro project.

The surveyed map of the NALA land is an interesting part of Koenihao’s submission. For purpose of verifying the NALA land boundaries a comparison is made to the recent surveyed map and the Custom Landowners Plan 1989 map which is also copies. The stark contrast between the two maps is in the overlapping of the custom landowners’ plan 1989 so that part of it is within the boundaries of the acquired core land as can be seen in the surveyed map. Note also that five (5) tabu sites are situated outside of the core land and the area market yellow in the Custom Landowners Plan 1989 map belongs to the Manukiki tribes.
Genealogy: Tribal genealogy was not presented in the tribes claims
Shell Money: no shell moneys in the tribes claim
Tabu sites: No mention tabu sites in the tribes submission
The “surveyed map of the NALA land” referred to above, shows overlap into the core area.

The appellants have submitted in argument that the Commissioner did not consider the materials that were submitted as part of their claim. The Commissioner had ignored those materials and make decisions by consideration of irrelevant material. The appellants say the Commissioner had considered a report of the Bahomea land identification committee which has had more influence on him when making his decision.
When I read the reasons, page 118A, I cannot see reliance by the Commissioner on a report of the Bahomea Land Identification Committee. I am satisfied however that the documents not addressed (indexed to trial book) are documents related primarily to the question of ownership or property rights over Nala land. The issue addressed by the Project manager was the actual location of the land area in relation to the core land acquired for the Project. That core land area is shown on the maps, page 119 of the not agreed documents – trial book. The first map shows a survey area of Koenihao tribal area overlapping part of the core area. This map post-dates the customary landowners plan 1989 map.

The issue surrounding the boundary of Nala land and its relationship with the core area for the project is one running through the various annexures to the sworn statements of Wilson Suhara filed in these proceedings. His statements in fact form the “trial book – not agreed documents”. By some 12 pages of document headed “Koenihao Tribe and Gaegae sub tribe- Special Submission to Tina River Hydro Project Office”, [pages 66-74 of trial book- not agreed documents] the submission includes a map showing the boundaries of Nala land. The Special Submission was self-supportive although it referred to other material to prove the tribes rights to the land. The issue of the actual encroachment of the core area onto Nala land, if any, cannot be determined by reference to this Special Submission alone.
The reason for the appellant’s suggestion that the Lands Commissioner placed weight unreasonably on the Bahomea’s House of Chiefs Panel [Case no. 4 of 2016] [Trial Book-unaccepted documents, pages 131-136] is the Chiefs finding at determination 2:-
“2. The panel uphold the original boundary claimed by Koenihao tribe, except the southern boundary of the land which needs to be clearly demarcated from Haniura sites.”
The overlapping land does not appear to be land to the south.

A reading of the Chiefs Panel findings does not assist this court in determining whether the Commissioner had placed any or undue weight on their findings for the Chiefs panel did not attempt to determine whether Nala land formed part of the core area, rather addressed the conflicting claims to ownership of Nala land by some six tribes, the Kohana, Roha, Sutahuri, Chachacha and the Koenihao.

When I read the Commissioners reasons coupled with the correspondence and arguments backwards and forwards as illustrated by the Trial Book-not agreed documents, I accept the statement in the reasons [p. 118a of Trial Book] “their submission of claims to the Commissioner of Lands is done by their representative, Wilson Suhara” may be deemed to encompass all the material leading to the Commissioners determination to reject the claim. I do not accept the appellants have been denied a right to be heard.

I accept however, the surveyed map showing the overlap [p. 119 of Trial Book] is evidence of encroachment of the core area onto the Koenihao tribal land area and while the Commissioner has referred to both maps and had recourse to all that other material relating to the Koenihao tribes claim to Nala land, by his sworn statement filed 2 May 2016 the Commissioner, for the reasons given [p. 118a, 119,120 of Trial Book] confirmed his non-acceptance of the claim. This sworn statement has the better coloured maps illustrating the overlap. Whilst the tabu sites may have been outside the core area, the drawn boundary of the core area is shown to transgress into the claimed custom land Nala of the Koenihao tribe. On balance, then I am satisfied the Commissioner erred in having insufficient regard to the uncontradicted evidence of the drawn map of the appellants.

The grounds of appeal 1 is allowed. I dismiss the remaining grounds. The claim is remitted to the Commissioner to assess such amount of compensation as he may think proper in accordance with S. 79(2) for the drilling activities carried out on Nala land in December 2013, land as delineated in the map, p. 119 of the Trial Book [annex NN-6 to the sworn statement of Nelson Naoapu filed 2 May 2016]. By consent of the parties, I have had regard to the various Trial Books, agreed or not agreed and the statement of the Commissioner who is the appropriate entity under the Act.
The costs of these proceedings shall be met by the respondent to the appeal.

High Court of Solomon Islands

Suhara v Attorney General [2017] SBHC 64; HCSI-CC 562 of 2015 (5 December 2017)