Leo v Mas Solo Investment Ltd [2020] SBHC 50; HCSI-CC 179 of 2018 (17 July 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Leo v Mas Solo Investment Ltd
Citation:
Date of decision:	17 July 2020
Parties:	Barnabas Heta Leo v Mas Solo Investment Limited, Lau Kiing Ting and Huong Yeu Kiong
Date of hearing:	6 July 2020
Court file number(s):	179 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Higgins J
On appeal from:
Order:	Subject than to those provisions the customary landowners are entitled to damages to be assessed for the unlawful felling and removal of Tubi from their land. Judgment accordingly with costs, I will hear argument on the form of that order.
Representation:	Whitlam Togamae for Claimant James Apaniai for First and Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Timber Utilisation Act (1996), Forest Resources and Utilisation (Protected species) Regulation 2012,
Cases cited:	Siota v Galego Resources Ltd [2016] SBMC 5 Australia in Wentworth v Woollahra Municipal Council [1982] HCA 41 Onus v Alcoa of Australia Ltd [1981] HCA 50 London Passenger Transport Board v Upson and [1949] IAIIER60 White v AG [2003] SBHC55 Lyform v Protect Security and Communication Ltd [2013] PGSC61]

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 179 of 2018

BETWEEN

BARNABAS HETA LEO
(Representing himself and Phosamogo tribe of Gonogano

AND:

MAS SOLO INVESTMENT LIMITED
First Respondent

AND:

LAU KIING TING AND HUONG YEU KIONG
Second Respondent

Date of Hearing: 6 July 2020
Date of Decision: 17 July 2020

Whitlam Togamae for Claimant
James Apaniai for First and Second Defendant

JUDGMENT

The matter in dispute can be briefly stated.

The 1^st defendant had a felling licence to harvest logs from the claimant’s land. However, by virtue of the Forest Resources and Timber Utilisation (Protected Species) Regulation 2012 that could not and did not authorise the harvesting of Tubi logs (Xanthostemon).

It follows from those provisions that such harvesting was illegal.

The Claimants contention is that they are entitled to damages for that unlawful harvesting and to the proceeds of the disposal of the product thereof.

The Defendants contention, and for this purpose the relevant party is the 1^st Defendant not its directors, is that the Act and Regulations simply provide for an offence committed by the 1^st Defendant and confer no private right upon the Claimants.

In truth the issue is not that but whether the creation of the criminal sanctions excludes the rights of property the Claimants otherwise had in the Tubi species on their land question.

The primary purpose of the legislation is such a question is to be decided upon the proper interpretation of the legislation in clearly to protect the species in question. Thus, if the land owners had sought to harvest the Tubi trees they would forfeit the logs in question (see eg. Siota v Galego Resources Ltd & Commission of Forest cc 192 of 2015. Central Magistrates Court).

That is not the present case.

In this case, the Tubi trees are the property of the Claimants subject to the restriction on their disposal provided by the Act and Regulation. They have not breached that legislation. The Respondent had, apart from the Act and Regulation, no right to harvest Tubi trees on the Claimant’s land. To do so is to commit the torts of trespass and conversion. That distinction was approved by the High Court of Australia in Wentworth v Woollahra Municipal Council [1982] HCA 41 [1982] 149CLR 672 c.f. Onus v Alcoa of Australia Ltd [1981] HCA50; [1981] 149CLR27.

In other words, the Act and Regulations do not disentitle the Claimants from claiming damages against the respondent for illegally harvesting their tubi trees and they are entitled to damages to be assessed.

Clearly, the position would be otherwise if the owners had been complicit in the illegal harvesting (ex turpi cause non action Onitur)

The Principles are well established (see London Passenger Transport Board v Upson and another [1949] IAIIER60; White v AG [2003] SBHC55; Lyform v Protect Security and Communication Ltd [2013] PGSC61]

The requirements may be summarised as follows: - a private litigant may seek relief for breach of a statutory obligation if:

1. The statute impose a duty.
2. That duty is breached
3. The statutory purpose includes protection of the right of the Claimants.
4. They have suffered damage; and
5. Parliament intended there should be a private right of action.

These conditions are met in the present circumstances.

Have the Forest Resources and Timber Utilisation ACT (1996) empowers the Minister to declare that specified species of trees should be protected (see schedule1).

By Regulation of 21 September 2013 Tubi was declared a protected species not to be “felled or removed from any land for purpose of sale or export, except for scientific research purposes” (Reg 3).

“Unless such export is expressly authorised by a licence granted under this Act” (Reg 3 LN77 2005) see further LN 113(2017)

(“Tubi can only be harvested from the Nicolle Mining tenements from Choiseul Province and Isabel Province”).

By LN 40 of 2018, Reg 10A was added permitting the “Constituency “to be authorized to export Tubi round logs. (See also Reg 10B:- remuneration.

By virtue of s.33 to 38 the unlawfully obtained timber produce may be seized by the Crown and subject to appeal by interested parties, it may be forfeit to the Crown. The customary owners’ right are otherwise preserved by s.40. (See also LN 26 of 2019)

Subject than to those provisions the customary landowners are entitled to damages to be assessed for the unlawful felling and removal of Tubi from their land.

Judgment accordingly with costs, I will hear argument on the form of that order.

THE COURT
Justice Terence Higgins
PUISNE JUDGE