Qopoto v Attorney General [2023] SBHC 120; HCSI-CC 563 of 2022 (16 October 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Qopoto v Attorney General
Citation:
Date of decision:	16 October 2023
Parties:	Cromwel Qopoto v Attorney General, Attorney General, Manold Tia, Enock Sokeni, Boaz Sirikolo & Myknee Sirikolo
Date of hearing:	2 October 2023
Court file number(s):	563 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird ; PJ
On appeal from:
Order:	I am satisfied that the Claimant in this case has satisfied the requirements of r. 15.3.18 (a), (b) and (d) of the rules but for the requirement under sub-paragraph (c) therein. As I am not satisfied that the Claimant had sufficiently met the requirement of r. 15.3.18 (c) of the CPR, I hereby refuse to hear the Claim and strike it out pursuant to r.15.3.20 of the rules with cost. I order accordingly.
Representation:	Mr Gregory Muaki for the Claimant Mr Philip W Kelesi for the First and Second Defendant Mr James Kaboke for the Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Protected Areas Act 2010 S 10, S 10 (2) (f), S 10 (2) (a), (b), (c), (d)and (e), Protected Areas Regulation 2012, regulation 17 (1), 12 (2), S 10 (4), 12 (1) Customary Land Records Act [cap 132] S 13
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 563 of 2022

BETWEEN

CHIEF CROMWEL QOPOTO
(Representing the Kavaku Clan of Sikipozo Tribe, South Choisuel)
Claimant

AND:

ATTORNEY GENERAL
(Representing the Director, Environment & Conservation Division)
First Defendant

AND:

ATTORNEY GENERAL
(Representing the Minister, Ministry of Environment Claimant Change, Disaster Management & Meteorology)
Second Defendant

AND:

CHIEF MANOLD TIA, ENOCK SOKENI, BOAZ SIRIKOLO & MYKNEE SIRIKOLO
(Representing the Qilakau Clan of Sikipozo Tribe, South Choisuel)
Third Defendant

Date of Hearing: 2 October 2023
Date of Decision: 16 October 2023

Mr Gregory Muaki for the Claimant
Mr Philip W Kelesi for the First and Second Defendant
Mr James Kaboke for the Third Defendant

RULING ON CHAPTER 15 CONFERENCE

Bird PJ:

1. A Claim for Judicial Review was filed by Claimant on 7 December 2022 together with his sworn statement. The orders sought are the following:
   1. A declaratory order to the effect that the recommendation made by the First Defendant to the Second Defendant on which the Second Defendant declared the Vuri customary land a protected area pursuant to section 10 of the Protected Areas Act 2010 is void and of no effect;
   2. A declaratory order to the effect that the declaration made by the Second Defendant on 18 March 2022 for Vuri customary land to be a protected area pursuant to section 10 of the protected Areas Act 2020 is unlawful;
   100. Consequential to orders 1 and 2 hereof a mandatory order directing the Second Defendant to revoke by order in the gazette the Vuri protected area in South Choiseul;
   4. An order that the Third Defendants be restrained from entering the purported Vuri customary land until such time the boundaries of the said land are accurately demarcated and surveyed or by further orders of the court;
   5. The First, Second and Third Defendants shall pay the cost of and incidental to this proceeding on indemnity basis;
   6. Any other orders that the court deems fit in the circumstances.
2. The facts of the case is that the Claimant and the Third Defendants are members of the Sikipozo Tribe of South Choiseul. The Claimant is from the Kavaku Clan and the Third Defendants are from the Qilakau/Vuri Clan. These two clans have ownership rights over their clan lands within the tribal land. Because they originate from the same tribe, the lands belonging to each of them share the same land boundary.
3. Sometime in 2018, the Vuri Clan applied to have their land protected under the Protected Areas Act 2010. In their application, they have included about 7 hectares of the Claimant’s clan land to be declared protected area. In or about April 2022 and upon representation from the Claimant, the Third Defendant assured them that the boundary would be sorted. They failed to do so and thus the filing of this claim. The First, Second and Third Defendants have filed their respective defences and sworn statements in support of their respective positions.
4. During a Chapter 15 Conference, the requirements that the court must be satisfied with before the case can proceed to trial are those contained in rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). That rule states:
   • r. 15.3.18 The court will not hear the claim unless it is satisfied that:

a) the claimant has an arguable case; and

b) the claimant is directly affected by the subject matter of the claim; and
c)there has been no undue delay in making the claim; and
d) there is no other remedy that resolves the matter fully and directly.

5. From the court’s enquiry, it is ascertained that the requirements that are contested by the First and Second Defendants are (c) and (d). The Third Defendants contest requirements (a), (b) and (c) of r. 15.3.18 of the CPR. So in summary all four requirements are contested in this hearing.
6. On that basis, Mr Muaki of counsel for the Claimant argues that his client has an arguable case on the basis that part of his clan’s land was included in the protected area of the Third Defendants. The two clans share the same land boundary but there was no consultation between the two clans about the issue before the declaration was made. It is also the case for the Claimant that the notice failed to set out the area to be declared as required under s. 10 (2) (f) of the Protected Areas Act 2010. That section provides:
   • s. 10 (2) (f)before making any recommendations to the Minister, the Director shall –
   • a).................
   • f) Publish in a newspaper having wide circulation in Solomon Islands a prescribed public notice setting out the area to be declared and the biodiversity significance of the area.
7. It is therefore submitted that there is a flaw in the process. That flaw had caused the Claimant a real disadvantage and therefore it is argued that the Claimant has demonstrated an arguable case. There is a breach of the requirement of the law which must be dealt with at trial.
8. As to requirement (b) of the relevant rule, it is the case for the Claimant that he and his clan are directly affected by the subject matter. Part of their Kavaku land had been declared protected area and therefore they are directly affected by the declaration.
9. As per requirement (c) of the relevant rule, it is submitted by Mr Muaki of counsel that there is no undue delay in the filing of the claim by the Claimant. His client therefore had also satisfied that requirement.
10. In relation to requirement (d) of r. 15.3.18, it is submitted by Mr Muaki of counsel that there is no other remedy that can fully and directly resolve this matter. The land had been declared a protected area and had been gazetted and so the only avenue available is a claim for judicial review. It is further submitted that even the option under section 17 of the Protected Areas Regulation 2012 is of no assistance to the Claimant party because the land had already been declared a protected area.

The case for the First and Second Defendants

11. In response to the position of the Claimant, Mr Kelesi of counsel for the First and Second Defendants confirmed that they are not contesting requirements (a) and (b) of r. 15.3.18. On that basis, the First and Second Defendants concede that the Claimant has an arguable case and that he is directly affected by the subject matter.
12. In relation to requirement (c) of the rule, it is the case for the First and Second Defendants that there was a delay in the commencement of this proceeding by the Claimant. The Vuri customary land was declared as a protected area on 21 March 2022. The Claim for judicial Review was filed by the Claimant on 7 December 2022, more than 8 months after the declaration was gazetted on 21 March 2022.
13. It is therefore the case for the First and Second Defendants that the Claimant’s Claim for Judicial Review was filed outside of six months limitation as required by r. 15.3.8 of the CPR. It is further submitted that the Claimant should have applied for leave under r. 15.3.9 before commencing the substantive case for judicial review. The Claimant had failed to do that and therefore the requirement under sub-paragraph (c) has not been satisfied.
14. As to the requirement under sub-paragraph (d), it is the case for the First and Second Defendants that there is an alternative remedy available to the Claimant to resolve the issue fully and directly. That alternative remedy could be found in regulation 17 (1) of the Protected Areas Regulation 2012 as read with section 13 of the Customary Land Records Act (cap 132). The avenue stated in those provisions could have been utilised by the Claimant and he has not done so. Even if the court makes determination that this proceedings progress to trial, this court has no jurisdiction to deal with issues of boundary. It is therefore submitted by Mr Kelesi of counsel that the Claimant has failed to satisfy requirement (d) of r. 15.3.18 of the CPR and this court should refuse to hear the Claim and strike it out under r. 15.3.20 of the CPR.

The case for the Third Defendants

15. As alluded to above and on behalf of the Third Defendants, Mr Kaboke of counsel told the court that the contested issues would be the requirements of sub-paragraphs (a), (b) and (c) of r. 15.3.18 of the rules.
16. On the requirement under sub-paragraph (a), Mr Kaboke of counsel submits that the Claimant lacks the locus standi to commence this proceeding. It is submitted that a 30 days notice was published by the Director of Environment on 30 December 2019 which lapsed on 29 January 2020. No objections were received by anybody including the Claimant in this case. On that basis, it is argued by Counsel Mr Kaboke that the Claimant lacks locus to commence this proceeding. It is submitted that the Claimant had waived his right to object to the declaration.
17. It is further submitted by counsel that the Claimant is not in possession of any decision from the chiefs forum as to ownership and or boundary of the subject lands. The Claimant’s Claim is a mere assertion of ownership of the said land and its boundaries. It is therefore the case for the Third Defendants that the Claimant has failed to satisfy the requirement of sub-paragraph (a) of the relevant rule.
18. It is also submitted by Mr Kaboke of counsel that since the Claimant had failed to exercise his right to object to the Public Notice dated 29 December 2019, it also follows that he is not directly affected by the subject matter. If he was directly affected, he should have lodged his objection to the Public Notice. Requirement (b) is therefore not satisfied.
19. As per requirement (c) of r. 15.3.18, it is submitted by Mr Kaboke of counsel that the Claim for Judicial review filed on 7 December 2022 is filed outside of the six months limitation required by r. 15.3.8 of the CPR. The land in issue was declared protected area on 21 March 2022 and the Claim in this proceeding was filed on 7 December 2022 more than 8 months after it was gazetted. There was no application made by the Claimant to seek leave to extend time under r. 15.3.9 of the rules before this proceeding was commenced. That requirement also has not been met by the Claimant and it is therefore submitted that the court must refuse to hear the claim and strike it out under r. 15.3.20 of the CPR.

Discussion

20. I have set out above the laws applicable and I have heard the various submissions of counsel for the Claimant, the First and Second Defendants and the Third Defendants. I have also perused the Claim, the Defences and the various sworn statements filed by the respective parties to this case.
21. The central issue in this case is that the Third Defendants have made an application to the First Defendant in about 30 July 2018 to declare their Vuri customary land a protected area under the provisions of the Protected Areas Act 2010 and the Protected Areas Regulations 2012. That application was approved by the First Defendant which then led to a Public Notice being issued on 29 December 2019.
22. According to the Public Notice annexed as “JH3” to the sworn statement of Joe Horokou filed on 1 February 2023, there is no map attached to inform the public, the extent of the area that will be covered in the said application. I would pose and reproduce the extract of section 10 (2) of the Protected Areas Act 2010.
    • s. 10 (2) Before making any recommendation to the Minister, the Director shall –
    1. conduct meetings and consultation with the owners of the area or other persons who may be affected by the prosed declaration;
    2. undertake consultation with the relevant Ministries and relevant provincial government;
    100. carry out filed study appraisal and access and evaluate the biodiversity significance of the area;
    4. verify the rights and interests in the area;
    5. identify, access and evaluate the conservation, protection and management options for the area; and
    6. publish in a newspaper having wide circulation in Solomon Islands a prescribed public notice setting out the area to be declared and the biodiversity significance of the area.
23. According to the above provision, the sworn statement of Joe Horokou filed on 1 February 2023 had failed to deal with the mandatory requirements of s. 10 (2) (a), (b), (c), (d) and (e) of the Act. I say mandatory requirement because of the use of the word “shall” under that provision.
24. I would also query the provision of regulation 12 (2) of the Protected Areas Regulations 2012 which provides:
    • r. 12 (2) The application must contain a copy of the management plan.
25. The document marked “JH1” in the sworn statement of Joe Horokou filed on 1 February 2023 is a copy of the application by the Third Defendants pursuant to s. 10 (4) of the Act and regulation 12 (1) of the Regulations. There is no copy of the management plan attached to the said application in annexure “JH1”.
26. It would therefore be obvious that the laws applicable for application to declare land as protected areas have not been succinctly complied with by the First Defendant in this case. I have decided to go further and discuss those provisions to satisfy myself that there are several triable issues in this case.
27. As I have been satisfied that there are several triable in this case, I am also satisfied that the Claimant is directly affected by the subject matter raised in this case. A big portion of his customary land has been included in the declaration dated 21 March 2022 and in order to protect the decision maker as well as the affected persons was why section 10 (2) and section 12 (2) of the Act were enacted. An oversight of those mandatory provisions by the First Defendant is the root cause of the issue.
28. In as far as requirement (c) is concerned, I am not satisfied that the requirement is met by the Claimant. The declaration by the Second Defendant by gazette was made on 21 March 2022. The Claim for Judicial Review was filed on 7 December 2022, more than 8 months after the gazette was published. The filing of the Claim contravenes r. 15.3.8 of the CPR and no leave was sought by the Claimant under r. 15.3.9 before filing the Claim.
29. As to requirement (d) of r. 15.3.18, I have taken into account the submission by Kelesi of counsel for the First and Second Defendants on an alternative remedy pursuant to regulation 17 (1) of the Protected Areas Regulation 2012 as read with section 13 of the Customary Land Records Act (cap 132). These provisions could have been available to the Claimant before the declaration was made by the Second Defendant. After the declaration was gazetted on 21 March 2022, the avenue is no longer available to the Claimant. Those provisions in my view are available at the negotiation stage and before the declaration was gazetted. I am therefore satisfied that there is no other remedy available to the Claimant but to file a Claim for Judicial Review.
30. In summary therefore, I am satisfied that the Claimant in this case has satisfied the requirements of r. 15.3.18 (a), (b) and (d) of the rules but for the requirement under sub-paragraph (c) therein. As I am not satisfied that the Claimant had sufficiently met the requirement of r. 15.3.18 (c) of the CPR, I hereby refuse to hear the Claim and strike it out pursuant to r.15.3.20 of the rules with cost. I order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge