Grace Logging Ltd v Attorney General [2021] SBHC 154; HCSI-CC 252 of 2020 (18 November 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Grace Logging Ltd v Attorney General
Citation:
Date of decision:	18 November 2021
Parties:	Grace Logging Limited, Chief Lijie Seama v Attorney General
Date of hearing:	20 August 2021 (Further closing written Submission)
Court file number(s):	252 of 2020
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	23.1 The withdrawal of the PB money is not ultra vires, not sub judice and not denial of claimants’ right to natural justice. 23.2 Decline to order refund of the PB money. 23.3 Costs follow the event.
Representation:	Mr. Ngaingeri and Mr Seuika for the 1st and Second Claimants Ms P Rofeta for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Forest Resources and Timber Utilization Act (Cap 40) s 39 (1) s 39 (2)
Cases cited:	Associated Provincial Holdings Limited v Wednesbury Corporation Limited [1947] EWCA Civ 1; (1948) 1 KB 223, Lixia v Attorney-General [1999] SBHC 14, Attorney General v Solomon Islands Airway Ltd [1986] SBHC 3, Whiteside v Attorney General [2016] SBHC 84

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 252 of 2020

BETWEEN

GRACE LOGGING LIMITED
First Claimant

AND:

CHIEF LIJIE SEAMA
(Representing himself and his Vato Tribe of Sasalo Customary Land in Choisuel Province)
Second Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest)
Defendant

Date of Hearing: 20 August 2021 (Further Closing Written Submission)
Date of Decision: 18 November 2021

Counsel; Mr Ngaingeri and Mr Seuika for the 1^st and 2^nd Claimants
Counsel; Ms P Rofeta for the Defendant

Keniapisia; PJ

JUDGMENT

Introduction

1. Grace Logging Limited is the contractor operating under its own felling license A101869. The said license was granted over Sasalo Customary Land. Chief Seama is one of the timber right grantors over Sasalo Concession Land. Sasalo Customary Land is said to be owned by Vato Tribe. Mr. Seama is said to be a chief of Vato tribe. There is no issue about ownership of Sasalo Customary Land in this claim.
2. Grace Logging Limited’s felling license A101869, covers Sasalo Customary Land, North East Choiseul, Choiseul Province. The license is valid until 19/11/2023. There is no issue about the license in this claim.
3. The Commissioner of Forest (“COF”) issued felling license A101869 to Grace Logging Limited on 19/11/2018. The license has 32 terms and conditions in it. Condition Number 8 (“CN 8”) becomes an issue and is at play in this dispute. The COF acted under CN 8 of the license to order the payment of the Performance Bond (PB) to be released to two neighbouring tribal land groups, for what the COF says was a breach of CN 3 of the license.
4. What happened was, Grace Logging Limited (“GLL”) was operating under its felling license inside its concession land (Sasalo). And there were complaints from neighbouring tribes that GLL felled trees beyond its concession into Kobolutu and Manuku Customary Lands. These two tribal lands share common boundary with Sasalo tribal land consented under GLL felling license.
5. Following receipt of complaints about trespass, the COF sent his representative to carry out a field survey to verify the extent of the trespass allegations. The representative compiled a field assessment report (the report). The report found that there was trespass into the two neighbouring tribal lands - Kobolutu (K) and Manuku (M). And the report called upon the COF to take disciplinary actions against GLL.
6. Acting on the report’s recommendation to punish GLL, the COF utilised CN 8 of GLL’s license, to withdraw the PB money of $250,000.00 and paid equally in compensation to K and M tribes for the trespass and damages to their tribal lands occasioned by GLL’s encroachment.
7. Grace Logging Limited disagreed and say that the COF’s action to lay his hands on the PB money was unlawful, in that the money cannot be used to pay compensation to third parties. Grace Logging Limited also say, it was not afforded an opportunity to make its representation on the allegation of trespass. Furthermore, there are pending cases in the High Court as well as a pending appeal to the Minister of Forest. So the COF should have refrained from touching the PB money.

The issues

8. Parties have agreed on the facts and issues. Without repeating the agreed facts, I will be mindful not to tamper with the agreed facts. But let me repeat the agreed issues because there were only 3 agreed issues: -
   • (i) Whether the COF decision to withdraw the PB money was justified and lawful?
   • (ii) Whether or not GLL was denied right to natural justice?
   • (iii) Whether or not the time for the PB money withdrawal was pre-mature as there were pending appeals to the Minister of Forest and pending cases over the subject land before the High Court?

Court Analysis
GLL paid the PB money as security

9. Felling license Condition Number 3 (“CN 3”) obliged GLL to operate only within the areas of land to which the license applies, boundaries of which are marked in red on the map, scale 1: 50,000 attached to the license. That map is at pages 103 and 104 of court book. The map shows that Sasalo (S), K and M are located adjacent to each other. The map read with the report and evidence (oral and written) of the COF shows that GLL’s operation inside of S concession land encroached into K and M.
10. The COF being satisfied on the report that there was trespass beyond the concession boundary of S into K and M then went ahead and withdrew the PB money. Grace Logging Limited paid the PB money as security and is regulated by CN 8 of the license. Condition Number 8 of the license relevantly stated: -
    • 8.“Before commencing carrying out any operations under the license, the licensee shall enter into, and give to the Commissioner of Forests Resources a copy of, a performance bond of $250,000 that shall –
    • (a) Be in the form of a bank guarantee or equivalent instrument acceptable to the Central Bank of Solomon Islands; and
    • (b) Provide security for –
      • (i) Payment of taxes, duties, levies, fees, royalties, rent, compensation and other charges or amounts that may be payable by him as licensee to the Government or the relevant provincial government under this Act or a provincial ordinance; and
      • (ii) Payments arising from contravention of the conditions of the license, the Act and subsidiary legislation made under the Act; and
    • (c) Be enforced by the Commissioner of Forest Resources against the issuing bank, insurance company or other authority if the licensee fails to pay a sum secured by it.” (Underlining my emphasis).

COF has power to authorise the PB money to pay for compensation claims?

11. The first relevant question to start with is “Does the COF have power under the license to authorise the withdrawal of the PB money, invoking CN 3 read with CN 8 and Regulation 10 (h)^[1] to pay the PB money to K and M tribes for the alleged trespass?” The starting point is the field assessment report that COF used to base his decision to withdraw the PB money and to order the money to be paid in compensation to K and M tribes for trespass.
12. The report upon which the COF based his decision is at pages 33 – 121 of court book. The report concluded that there was trespass into K and M. The report shows that all relevant parties were present and joined the survey team. The relevant parties are: -
    • (i) Forestry Officer (Regulator) - Mr. Kelvina Luse.
    • (ii) M land representatives (Complainant) - David Sogavare, Babean Sogavare, Alex Jewin and Harold James.
    • (iii) K land representatives (Complainant) - Rod Mathias, Mathias Deve, Lethan Mathias, Caleb Mathias and Clazi Mathias.
    • (iv) Sasalo land (Consenter/2^nd Claimant) – Chief Loji Seama, Veleke Seama, Marklyn Seama, Marvin Seama, James Pidry, Tony Caloteni, Patterson Pagu and Nathan Hobara, Korovoso Janes, Levan Dopogo, Libias Norma, Norlan Sale, Junior Ben and Markpai Ben.
    • (v) Contractor representatives (GLL) - Camp Manager, Mr Cheng, Mechanic Mr Jonnie and Chief Surveyor, Mr James Pidri. I asked Mr. Cheng if he was aware of the report and his answer was “Yes”. I asked again whether he was a party to the field survey as stated in the report and his answer was “No”. I asked again about trespass and he denied trespass as stated in the report, only saying GLL confined its operations within its S concession land. I asked whether he protested against the report and though I repeated three times, his answer was not directly addressing my question, only repeating they operated within their concession. I was satisfied claimants participated in the joint field survey because Mechanic Jonnie and Surveyor James did not deny being on the survey team. Mr. Cheng was avoiding my most relevant question, which I asked 3 times.
13. The most important piece of evidence is the concession map, at pages 103 and 104, court book. It is the map that was supposed to reflect the boundary of S concession land. The COF described the map as mere drawings. The map GLL used when it lodged its application for timber rights acquisition. The map went through the timber rights acquisition process and eventually was attached to the license. To ascertain the veracity of the trespass allegation, COF gave oral evidence that a field visit was necessary to verify on the ground, using GPS, to determine against the map, whether or not operation went beyond the concession boundary on the map.
14. The report talked about use of GPS, to shoot the demarcation on the map, having toured the land. And confirmed by oral evidence from COF. The report says, the parties were interviewed and visits made to rivers showing boundaries. The report says documents on ownership were before the COF. I was not interested so much on land tribunal documents like Chiefs decision. For the Ririo House of Chief’s decision dated 6^th October 2020, did not make a finding on GLL’s trespass inside of K and or M land.
15. I am of the considered view that there are two systems from which we can establish boundary and the alleged trespass beyond the S concession boundary. The more reliable and primary system is the land tribunals – Chief, Local Court, Customary Lands Appeal Court, High Court and Court of Appeal on points of law only. The other system is the COF and the concession map boundary that the COF used as the Regulator. This is the system that the COF used to determine trespass in this matter. The COF issued license A101869 to GLL. The said license has terms and conditions attached to it. One of the important condition terms of the license is the concession boundary map. There are consequences for breach of the condition terms. The license at CN 3^[2] imposed a condition term on GLL to confine its felling activities within the concession map boundary only.
16. The COF can determine whether GLL’s operations have gone beyond the concession map boundary using its skills and expertise. Using those skills and expertise, the COF had toured the land, used GPS to shoot on the ground and measure against the concession map. And was satisfied that GLL had felled trees beyond the S concession boundary into K and M lands. The COF explained in oral evidence that, trespass is established in terms of the concession map boundary as follows:
    • (i) Concession Map is at page 104 of court book.
    • (ii) Pink colour – S.
    • (iii) Purple colour – M.
    • (iv) Green colour – K
    • (v) Surveyor toured the land, and shoot the GPS coordinates from spots on the ground and noted onto the map. The GPS coordinates appearing as red dots on the map shows where the operation reached, right into K and M.
    • (vi) One red dotted GPS point shows that operation reached the green portion of the map, which is K.
17. Court cannot pretend that it has the responsibility over the concession maps, like the Regulator. Court cannot pretend that it has the resources, skills, knowledge and expertise to interpret the concession map when issues of trespass arise. Only the COF as the Regulator has all the resources. And knows how to use the resources to establish trespass in terms of concession maps. And when the COF, as the Regulator has made a decision that there was indeed trespass, the Court cannot just overturn that decision which is technical in nature (use and interpretation of concession map, GPS shootings to determine trespass, field visit and interview with all parties concerned). Court cannot presume that it knows better than the COF. Court can only rely on the expert evidence supplied by the Regulator (COF). As a result, I cannot overturn the decision of the COF on trespass. There is no other expert evidence to discredit the expert evidence (the report) that COF used to make his decision.

COF acted lawfully to release the PB money?

18. Next relevant question is “Whether the COF was justified and acted lawfully, in releasing the PB money to pay for the trespass, having satisfied there was trespass? This involves legal issues for interpretation. So the Court can dwell and conclude on it. I have read and thought about CN 3 as read with CN 8. And my conclusion remains substantially the same. The same conclusion is that the COF licensed GLL to operate only within the boundary of its S concession land (See CN 3). And if GLL fails to operate within its concession boundary (map) then that amounts to breach of CN 3 of the license. And when GLL is in breach of its license condition, the COF as the Regulator may use the security money (PB), for claims arising from breach of the conditions of the license. In other words, the purpose of the security money (PB) is to pay for claims arising from breach of license conditions. In here claims for compensation arose from breach of CN 3, whereby landowners of K and M alleged trespass into K and M. The COF had verified that there was trespass beyond the concession map boundary into K and M lands. I think the COF’s decision was justified and lawful in terms of CN 3 read with CN 8 (a) (b) (ii). I see no reason to interfere with that lawful decision. I will return to this later under application of judicial precedent (law) below in paragraphs 22 and 23.

COF heard GLL’s side of the story before deciding to withdraw the PB money?

19. The other issue claimants raised is denial of natural justice. That the COF did not give opportunity to the claimants to make representation on the withdrawal of the PB money. But the documentary evidence available did not support such a contention. Seven day notice to withdraw the PB money was given to GLL on 6^th May 2020^[3]. Grace Logging Limited had made representation on 8 May 2020^[4]. And on 19^th May 2020, COF decided to withdraw the PB when he wrote to POB on 19^th May 2020. In addition, the relevant facts on representation were agreed as follows: On or about 6^th May 2020, the defendant caused a 7 days’ notice to the 1^st claimant for the withdrawal of the PB money under felling license No. A101869. On or about 8^th May 2020, the 1^st claimant responded to the said 7 days’ notice of which the defendant acknowledges receipt of the said response^[5]. Furthermore there was the joint assessment report that claimants were party to (See paragraph 12). So I am satisfied GLL was given opportunity to be heard. And GLL did make representation, on 8^th May 2020, before the COF made the decision to withdraw the PB money on 19^th May 2020. And GLL also participated in the joint assessment report.

COF withdrew the PB money prematurely?

20. The last issue is whether withdrawal of the PB money was premature in view of pending appeal to the Minster and pending High Court cases over the subject lands. The COF suspended the licence on 2/04/2020, using powers COF has under Section 39 (1) of the Forest Resources and Timber Utilization Act (Cap 40). The evidence of suspension is at page 106 and 107, court book. The evidence says that license was suspended because of trespass, verified from a joint field assessment report submitted to COF on 26/03/2020. So when suspending the license, it was because of satisfaction that there was trespass. And if GLL was appealing against suspension the result would be restoration of the suspended license. The Minister could restore the suspended license acting under Section 39 (2) of the Forest Timber Resources and Utilization Act (Cap 40) – the FRTUA. But that is a different matter from the withdrawal of the PB money. The withdrawal of the PB money is not the subject of the pending appeal before the Minister. The withdrawal of the PB money was challenged in this judicial review claim. And I am reviewing the COF’s decision to withdraw the PB money herein, not the Minister. In other words, the Minister will deal with the COF’s decision to suspend GLL’s license in relation to the alleged encroachment and other issues like operating within buffer zones. This Court is reviewing the COF’s decision to withdraw the PB money, in relation to the alleged encroachment, established to the COF’s satisfaction in the report. Whether or not the COF had acted ultra vires of his statutory powers under the FRTUA becomes an issue in this case. That issue the Minister cannot resolve. It is a judicial review matter that only the Court can adjudicate. The Minister has power to adjudicate the suspension of GLL’s license under Section 39 (2) cited above.
21. There may be pending cases in the High Court about trespass but those cases will involve the other system that I talked about earlier. As I said earlier the system that the COF used was the concession map boundary. And once the COF is satisfied that the licensee has felled trees beyond the concession map boundary, then the COF as the Regulator, is justified and his actions were lawful. The High Court cases on ownership can continue. I am not privy to those cases. So I do not know exactly what those cases involved. The survey report was comprehensive. And all relevant stakeholders participated in the joint field survey. The report formed the basis for the COF’s decision.

Judicial Precedent (Wednesbury principle), Conclusion and Orders

22. According to Associated Provincial Holdings Limited v Wednesbury Corporation Limited [1947] EWCA Civ 1; (1948) 1 KB 223 applied locally in Attorney General^[6], Whiteside^[7] and Lixia^[8]; the Court will not interfere with the decision of a statutory authority, unless there was error of law, breach of natural justice and the decision was unreasonable. The Associated case relevantly stated:
    • “Courts will not intervene to quash the decision of a statutory authority, unless it can be shown that the authority erred in law, was guilty of a breach of natural justice or acted unreasonably. If the authority has considered the matters in which it is its duty to consider and excluded irrelevant matters, its decision, is not reviewable, unless so absurd that no reasonable authority could have reached it. The principle excludes the Court from substituting its own views of the facts for that of the authority.”
23. In all that I say above and in view of the principle of public administrative law, discussed briefly herein, I am satisfied that the decision of the COF to withdraw and pay the PB money for compensation was not ultra vires of the COF’s statutory powers. That the COF considered matters that must be lawfully considered. The COF did not consider irrelevant matters. And the COF decision cannot be said to be so unreasonable and absurd (Wednesbury principle) that no reasonable person could have expected the COF to make such decision. Consequently I will decline the reliefs sought as follows:-
    • 23.1 The withdrawal of the PB money is not ultra vires, not sub judice and not denial of claimants’ right to natural justice.
    • 23.2 Decline to order refund of the PB money.
    • 23.3 Costs follow the event.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Forest Resources and Timber Utilization (Felling Licenses) Regulations 2005.
^[2] CN 3 of the license is at Exhibit 2 SC-2 of further sworn statement of Mr. Steven Chien, filed 4/05/2021, at pages 260 of court book.
^[3] See page 115 court book.
^[4] See page 368 -370 court book.
^[5] See Agreed Fact No. 7 of Agreed Facts and Issues filed 4/05/2021.
^[6] Attorney General v Solomon Islands Airways Limited [1986] SBHC 3; (1985-1986) SILR 262 (8^th December 1986).
^[7] Whiteside v Attorney General [2016] SBHC 84; HCSI-CC 189 of 2013 (3^rd June 2016)
^[8] Lixia v Attorney General SBHC 14; HCSI-CC 134 of 1998 (2^nd March 1999).