Billy v Base Development Project Company Ltd [2018] SBHC 41; HCSI-CC 252 of 2016 (29 March 2018)

STEPHEN BILLY (Claimant)

V

BASE DEVELOPMENT PROJECT COMPANY LIMITED, NEW WORLD LIMITED (1st 2nd Defendant)

HIGH COURT OF SOLOMON ISLANDS
(BROWN J)
Civil Case No.252 of 2016

Date of Hearing: 14 March 2018
Date of Judgment: 29 March 2018

J. Taupongi for claimant
G. Suri for defendant

Ruling in relation to contempt of court order application and for determination of claims for damages for trespass as a consequence of logging operations.

Brown J:
For the reasons I have given in the absence of orders perfected in terms of the court’s grant of application for injunction, and in absence of service of such perfected orders on the respondents sought to be charged with the obligation to desist from the acts complained of, I dismiss the application for contempt. The defendants shall have their costs of the application.

The maps relied upon by both parties when the timber rights hearings were concluded by the Provincial Government were those maps prepared for registration under the Customary Land Records Act, it would seem in the 1970s. Mr. Suri argues since the recording was not proceeded with, it would be a mistake to accept the maps as delineating the concession logging lands by reference to LR 696 and LR697, rather the court should place weight on found customary boundaries at the time of the timber rights hearings, when describing custom lands, Katova and Korighole. The court does not agree for throughout the various forms and documents required pursuant to the Forest Resource and Timber Utilisation Act both the claimants and the defendants have relied on and included the description of their respective logging concessions by reference to LR 6964 Katova land and LR 6974 Korighole land. The court accepts these two land references are shown by the coloured map, exhibit SB-9 to the statement of Stephen Billy sworn on 21 November 2016. By SB-10, the map purports to show the disputed land coloured Orange, which the claimants allege these defendants have illegally logged as a consequence of their trespass.

By JS-13, the map [attached to John Sia’s statement of 8 July 2016 of the defendants] shows the whole extent of LR 696, lots one and two as the concession belonging to them. When I look at the map which I accept shows the boundaries of both LR 696 and LR 697, I see the boundary separating these two parcels corresponds with the boundary of the claimants land in SB-10. There would seem then to be intrusion by these defendants into LR 697.

As a consequence of the two timber rights hearing the defendants’ and claimants’ trustees or representatives found by the Province represent all the landowners in the respective portions. These “representatives” primarily are persons determined by their clans or groups to stand for the clan or group in these timber rights proceedings which are wholly matters concerned with logging governed by the Act. In the absence of appeal in accordance with that Act I accept the particular representatives are duty-bound to represent all those landowners in their respective parcels, LR 696 and LR 697.

In July 2016 the Zabana House of Chiefs in proceedings concerning particular customary land, Tupiapau demarcated with particularity in that determination the customary land parcel. The decision dated 17 August 2016 involved both these parties, for the defendants relied on the timber rights agreement executed by the Taraoa clan of the Katova landowners and the claimants [in this proceeding here] were named defendants as Belama clan.

The Chiefs determination specifically marked customary land which by these proceedings in this court are within LR 697 as belonging to be Zinana Rogisi Taraoa clan.

The decision has been appeal by these claimants to the local court. No hearing of the appeal has been fixed as I understand but this High Court is unable to make a final determination in relation to this area of land described by the chiefs’ findings until the appeal process is exhausted. In other words this court accepts the responsibility of the representatives to account for the proceeds of logging royalties to those landowners found to be customary owners of the logging concession. In this case, the custom owners of land shortly described as Tupiapau on the face of the chiefs decision now include Zinana Rogisi Taraoa clan, not only as previously accepted, the Belama clan.

Unless and until final appeal process determines the correctness or otherwise of the Chiefs decision, the representatives of the Korihole land more particularly described as LR 697, are liable to those newly found landowners for their share of the proceeds of royalties from timber harvesting on the Tupiapau land.

Since the chiefs determination followed the earlier timber rights hearing, and in the absence of appeal over the boundaries of these land registration parcels, I am not satisfied the claimants had made out a case for trespass. Any action by these persons found entitled by the Chiefs against the LR 697 representatives is one in personam for a share of royalty proceeds and cannot be a claim in in rem. They have a present right to a share of the royalties, a right stayed pending determination of the appeal to the local court or subsequent CLAC determination. That right is one which may be quantified once detailed material from forestry concerning the area logged is furnished the parties.

For all these reasons the claimants’ case must fail. Since the chiefs findings postdated the earlier Provincial Government determination and in the absence of appeal pursuant to the Act, the defendants claim for costs of these proceedings is refused. This order does not affect the order earlier made concerning the cost of the failed contempt application. The earlier court orders given ex parte (but not taken out) are for caution discharged.

__________________
BROWN J