Iputu Development (SI) Ltd v Attorney General [2023] SBHC 123; HSCI-CC 554 of 2022 (9 November 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Iputu Development (SI) Ltd v Attorney General
Citation:
Date of decision:	9 November 2023
Parties:	Iputu Development (SI) Limited, Chief Stanley Barnabas v Attorney General, Pacific Nickel Mines Kolosori Limited
Date of hearing:	19 October 2023
Court file number(s):	554 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I am satisfied on the balance that the First and Second Claimants have met all of the requirements of r. 15.3.18 of the rules and the matter will progress to trial. And since the outstanding issues are issues of law, this proceeding can conveniently be disposed of through submissions from respective counsel on the issues stated. I order cost to be in the cause since the legal issues raised in this ruling were never addressed by any of the parties to this proceeding.
Representation:	Mr Lazarus Kwaiga for the First and Second Claimant Mr Ofanakwai for the First Defendant Mr Lappy Hite for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007 r15.3.18 (a) and (b), r 15.3.18 (d) and (c) Mines and Minerals Act [cap 42] S 11 (a), (b) and (c), S 20 (5), S 20 (6) Stamp Duties Act [cap 126] S 9
Cases cited:	Austree Enterprises PTY Ltd v Guo [2012] SBCA 19

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 554 of 2022

BETWEEN

IPUTU DEVELOPMENT (SI) LIMITED
Claimant

AND:

CHIEF STANLEY BRANDAN
(Presenting himself and his Iputu Tribe of Bugotu Isabel Province)

AND:

ATTORNEY GENERAL
(Representing the Minister of Mines, Rural Electrification and Energy, the Director of Mines and the Mines and Minerals Board)
First Defendant

PACIFIC NICKEL MINES KOLOSORI LIMITED
Second Defendant

Date of Hearing: 19 October 2023
Date of Decision: 9 November 2023

Mr Lazarus Kwaiga for the First and Second Claimants
Mr Ofanakwai for the First Defendant
Mr Lappy Hite for the Second Defendant

RULING ON CHAPTER 15 CONFERENCE

Bird PJ:

1. A claim for judicial review was filed by the First and Second Claimants on 25 November 2022 together with the sworn statement of Chief Stanley Barnabas and an Affirmed sworn statement of Peng Han. The First and Second Defendants have filed their respective defences to the claim. They have also filed respective sworn statements. On 19 October 2023, this matter was listed before the court for a chapter 15 conference pursuant to rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). By leave of court an Amended Claim for Judicial Review was filed in court on 28 September 2023. In the amended claim the reliefs sought are the following:
   1. An order quashing the decisions of the Mines and Minerals Board approving the issuance of Mining Lease No. ML 02/22 to the Second Defendant over Havihua Kolosori in Bugotu District, Isabel province having been made contrary to sections 11 (a), (b)and (c) and section 20 (5) of the Mines and Minerals Act (cap 42) and as it covers Kolosori customary land owned by the Second Claimant and his tribe;

1 A) An order quashing the decision of the Minister of Mines granting Mining Lease No. ML 02/22 to the Second Defendant over Havihua Kolosori without there being any executed Surface Access Agreements or Surface Access Rights Agreements executed over Kolosori customary land owned by the Second Claimant and his tribe;

2. In the alternative, a mandatory order that the Director of Mines, the Mines and Minerals Board and the Minister of Mines excise from the area covered by Mining Lease No. Ml 02/22, Kolosori customary land owned the Second Claimant and his tribe;
3. Consequential to orders 1, 1A or 2:
   • 3.1 A declaratory order that the Mining Lease No. ML 02/22 issued to the Second Defendant on 14 September 2022 does not cover Kolosori customary land owned by the Second Claimant and his tribe;
   • 3.2 A further declaratory order that Mining Lease No. 02/22 issued to the Second Defendant wherein it encroaches into Kolosori customary land is null and void and void ab initio;
4. Costs on indemnity basis;
5. Any other orders that court may deem fit in these circumstances.
2. In a chapter 15 conference, the court must be satisfied of all the requirements contained in r.15.3.18 of the CPR before the case can proceed to trial. I set out r. 15.3.18 of the rules:
   • r.15.3.18The court will not hear the claim unless it is satisfied that:
   1. The claimant has an arguable case;
   2. The claimant is directly affected by the subject matter of the claim;
   100. there has been no undue delay in making the claim; and
   4. there is no other remedy that resolves the matter fully and directly.
3. During the hearing on 19 October 2023, Mr Ofanakwai of counsel for the First Defendant and Mr Hite of counsel for the Second Defendant jointly confirmed that the contested issues would be the requirements of r. 15.3.18 (a) and (d) only. From that concession by the First and Second Defendants, I can find that issues under r. 15.3.18 (b) and (c) are not contested and are proved. I need not hear submission on those issues.

The facts

4. The facts of the case is that both the First Claimant and the Second Defendant are duly registered companies carrying on business in the mining sector. On 22 March 2022, the Second Defendant’s Prospecting License No. 05/19 over Kolosori tenement was cancelled by the Minister of Mines on the basis that the said Prospecting License no longer covered lands originally included in the said license and that the Surface Access Agreements the Second Defendant had executed over the said lands were revoked.
5. On the same date, the First Claimant submitted its application for a Prospecting License over Kolosori customary land referred to as “the Iputu tenement” bearing an area of 9.76 square kilometres after having paid for the required fees. On 18 March 2022, the Second Defendant lodged a fresh application for Prospecting License over Kolosori-Havihua customary land which was accepted by the Director of Mines.
6. On 27 April 2022, the First Claimant was issued with a Letter of Intent (LOI) by the Minister of Mines after excision was carried out between the two tenements. On 27 May 2022, the Minister of Mines also issued a LOI to the Second Defendant. There was recommendation that the area applied for was to be re-adjusted. On 1 June 2022, a new Surface Access Agreement was executed by the Second Defendant and the trustees and landowners of Kolosori areas and the Ministry. Also on the same day, the Second Defendant was issued with a Prospecting License No. PL 02/22 covering Havihua Kolosori customary land. On 21 June 2022, the First Clamant executed a Surface Access Agreement with the landowners of Iputu land, Dokulu land and Tenameko land. On 23 June 2022, the Minister granted Prospecting License No. PL – 04/22 to the First Claimant.
7. On the other side, and on 10 June 2022, the Second Defendant lodged its application for a Mining Lease to the Director of Mines. Upon perusing the application, it was evident that the land area covered in the mining lease did not correspond with the area in the prospecting license. The Second Defendant was then advised to amend its map and they did. On 6 July 2022, a LOI was issued to the Second Defendant by the Minister. On 11 July 2022, the Second Defendant executed a Surface Access Rights Agreement for mining lease with the trustees of Havivua Kolosori lands covered in the application. On 14 September 2022, a mining agreement was executed by the First Defendant, the Second Defendant and the landowners which then led to the subsequent issuance of Mining Lease No. ML 02/22 to the Second Defendant.

The case for the First and Second Claimants

8. Having stated the relevant facts in this case, it is argued by Mr Kwaiga of counsel that his clients have an arguable case before this court. The case for the First and Second Claimants basically hinges on the lawful processes for the acquisition of a Prospecting License and a Mining Lease and the powers conferred by the Mines and Minerals Act (cap 42) upon the Director of Mines, the Mines and Minerals Board and the Minister of Mines. With particular reference are section 11 (a), (b) and (c) together with s. 20 (5) of the said Act. I set out those sections:
   • s. 11 The functions of the Board shall be –
   1. to advise the Minister on the issue of permits, licenses or leases in respect of gold dealing, reconnaissance, prospecting and mining operations to be carried out in terms of this Act;
   2. to take such measures as it deems necessary or appropriate to inform landowners or landholding groups affected, on operations to be carried out, in terms of permits, licenses or leases, as the case may be;
   100. to assist respective holders of, or applicants for, permits, licenses and leases to negotiate with landowners and land owning groups in order to enable such holders to gain access to affected land and carry out reconnaissance, prospecting or mining operations.
   • s. 20 (5) The Director shall refuse to accept the application for a prospecting license, if at the time of submission of the application-
   1. there is pending before the Board an application for a prospecting license or mining lease in respect of all of the proposed prospecting area; or
   2. all of the proposed prospecting area is subject to an existing prospecting license or mining lease.
9. It is submitted by Mr Kwaiga of counsel that the First Claimant’s application for prospecting license was made first in time before the application of the Second Defendant. Somehow, along the way, the Second Defendant was issued with a Prospecting License No. PL 02/22 covering Havihua Kolosori customary land on 1 June 2022. The First Claimant was merely issued with Prospecting License No. PL – 04/22 on 23 June 2022 covering Iputu land, Dokulu land and Tenameko land.
10. It is therefore submitted by Counsel Mr Kwaiga, that had the Director of Mines complied with s. 20 (5) of the Act, the Second Defendant’s Mining Lease No. ML 02/22 should not have been issued to them. It is therefore submitted by counsel that the interpretation of the law is vested in this court and since the case hinges on the interpretation of the relevant provisions as stated above, the First and Second Claimants had demonstrated an arguable case in their amended claim for judicial review.
11. On the requirement under r. 15.3.18 (d), it is submitted by Mr Kwaiga of counsel that no other court is vested with the jurisdiction to interpret the law except this court. It is therefore submitted by counsel that there is no other remedy that could resolve the matter fully and directly but through a claim for judicial review to this court.

The case for the First Defendant

12. On behalf of the First Defendant, it is argued by Counsel Mr Ofanakwai that the First and Second Claimants do not have an arguable case. It is submitted by counsel that quite apart from s. 20 (5) of the Act, there is also s. 20 (6) which provides:
    • s. 20 (6) Where an application for a prospecting license is in respect of an area which includes part of the area which is the subject of –
    1. any previous application, pending before the Board for a prospecting license or mining lease; or
    2. any existing prospecting license or mining lease, the Director shall accept the application and shall excise from it that part of the area which is the subject of such previous application, license or lease.
13. It is submitted that s. 20 (5) of the Act must also be read with s. 20 (6) of the Act. By virtue of s.20 (6), the Director is empowered to accept a subsequent application and the Director also has the power to excise any part thereof if it is covered by a previous application, license or lease. In this case, it is submitted by counsel that s.20 (5) is not applicable because the subsequent application of the Second Defendant do not cover all of the proposed land area applied for by the First Claimant. He nonetheless cannot confirm in court whether or not the maps were readjusted. Notwithstanding, it is submitted by counsel that the First and Second Claimants have not demonstrated an arguable case and their amended claim for judicial review should be struck out with cost.

The case for the Second Defendant

14. On behalf of the Second Defendant, it is submitted by Mr Hite of counsel that the First and Second Claimants also do not have an arguable case and that there is an alternative remedy that could resolve the matter fully and directly. It is submitted by counsel that a verification report was compiled by a Senior Geologist of the Department of Mines dated 29 April after a site visit and survey was conducted. Apart from that report, the First Defendant was also assisted by documents submitted by the trustees of Havihua Kolosori land. Those documents included the Bugotu House of Chiefs decision in Land Case No. 1/18 held on 29 November 2018 and the Tatamba Ward House of Chiefs decision dated 25 May 2022, Case No. 3 of 2022. It is further submitted by counsel that when the Mines and Minerals Board convened its meeting on 6 July 2022 and made recommendation to the Minister to issue LOI to the Second Defendant, there was no land case referral by the Second Claimant before them to consider and take into account.
15. In respect of the relief sought in paragraph 2, it is submitted by counsel that the court is being asked to improperly exercise its discretionary powers. It is submitted that the power to excise is normally conducted during the initial stage of the process of applying for prospecting license and is done when a new application overlaps with a previous or pending application for prospecting license or a mining lease. In this case, that stage had gone past and the First Claimant and the Second Defendant had already been issued with a Prospecting License and a Mining Lease respectively. That exercise was made through the verification report dated 29 April 2022 annexed as “PM7” to the sworn statement of Pawel Misiec filed on 27 February 2022.
16. There was also a meeting arranged and held by the Director of Mines together with representatives of the disputing parties on 20 May 2022 to try and resolve the boundary issue. See paragraph 15 and annexure marked “PM15” to the same sworn statement of Pawel Misiec. So in effect, excision of the land areas applied for by the First Claimant and the Second Defendant was done by the First Defendant. It is therefore obvious that the issuance of PL No. 02/22 and ML No. 02/22 to the Second Defendant was supported by actual evidence before the Director of Mines, the Mines and Minerals Board and the Minister of Mines. There therefore is no error in law committed by them in the exercise of their respective powers under the Act.
17. On the requirement under r. 15.3.18 (d) of the rules, it is submitted by Mr Hite of counsel that since the excision under s. 20 (6) (b) have proved to have been futile between the disputing parties, the alternative remedy that would have resolved the matter fully and directly is a referral on the boundary issue to the land courts. It is submitted that a referral had indeed been made by the Second Claimant to the Isabel Local Court in Land Case No. 5 of 2022. If the said Local Court makes a determination on boundary of the disputing parties, then this court would then be fully assisted. It is argued that even if this matter proceeds to trial, this court lacks the jurisdiction to deal with any customary land boundary issues. The amended claim for judicial review should be struck out with cost.

Discussion

18. In this proceeding, the contested issues are the requirements of r. 15.3.18 (a) and (d) of the rules. The complaint of the First and Second Claimants is that the Director of Mines, the Mines and Minerals Board and the Minister of Mines have failed in their respective functions to properly deal with their application and the subsequent application of the Second Defendant for a prospecting license. S. 11 (a), (b) and (c) together with s. 20 (5) of the MMA are allegedly breached by First Defendant.
19. Section 11 (a) of the Act requires the Board to advise the Minister on several issues including prospecting of minerals. Subsection (b) deals with measures that they deem necessary and appropriate to inform landowners or land holding groups affected in the proposed development and subsection (c) is the provision whereby the Board is required to assist holders of, or applicants for permits, licenses......... to negotiate with landowners and land owning groups in order for holders to gain access to affected land.....and carry out reconnaissance, prospecting or mining operations.
20. It is the case for the Claimants that the Second Claimant is a landowner of the area covered in the Second Defendant’s prospecting license and mining lease but he did not execute any Surface Access Agreement or Surface Access Rights Agreement with the Second Defendant before they were granted PL No. 02/22 and ML No. 02/22. It is further argued on behalf of the Claimants that the renewed Surface Access Agreement allegedly executed by the Second Defendant, the land trustees and the Ministry of Mines on 1 June 2022 was so executed on the very same day, PL No. 02/22 was granted to them.
21. I have had the opportunity to peruse the Surface Access Agreement dated 1 June 2022 exhibited as “PM11” to the sworn statement of Pawel Misiec filed on 27 February 2023 for verification. I have noted that the said agreement is not duly stamped as required under section 9 of the Stamp Duties Act (cap 126). That section provides:
    • s.9 No document executed in Solomon Islands or relating, wheresoever executed, to any property situate in Solomon islands or to any matter or thing done or to be done in Solomon Islands, shall, except in criminal proceedings and in civil proceedings by a Collector to recover any duty or penalty under this Act, be pleaded or given in evidence, or admitted to be good, useful or available in law or equity unless it is duly stamped in accordance with the law in force at the time when it was first executed.
22. On the same note, I have also perused the Surface Access Rights Agreement dated 11 July 2022, and exhibited as “PM12” to the sworn statement of Pawel Misiec filed on 27 February 2023 also for verification. It is further noted that the said agreement is also not duly stamped contrary to s. 9 of the Stamp Duties Act (cap 126). So due to the non-compliance with the mandatory requirement of s. 9 of the Stamp Duties Act, what will become of the two agreements that the Second Defendant is relying upon to validate its process in obtaining a prospecting license and a mining lease.
23. The answer to that query is provided for by law. There is also Court of Appeal case of Austree Enterprises Pty Ltd & Anor v Guo & Others [2012] SBCA 19; SICOA-CAC 7 of 2012 that confirmed the position of the law in this jurisdiction on non-compliance with s. 9 of the Stamp Duties Act. The Surface Access Agreement dated 1 June 2022 and the Surface Access Rights Agreement dated 11 July 2022 are non-enforceable in law and therefore cannot confer any right to any party to the said agreements. With that said, the issuance of PL N0. 02/22 and ML 02/22 by the Ministry of Mines to the Second Defendant could be a nullity.
24. Apart from the non-compliance with the Stamp Duties Act, the authenticity of “PM11” is also an issue before this court. It is obvious on page 11 of 17 of the Surface Access Agreement, that the said agreement was not executed by any officer of the Ministry of Mines, Energy and Electrification. It was also not executed by an authorised representative of the Second Defendant and there was no proper clan/tribe names, no land block names inscribed therein. Only one trustee was named and only three signatures were seen on the document. In my considered view therefore, the document marked “PM11” is questionable under those circumstances. That issue could also affect the valid issuance of PL No. 02/22 by the Ministry to the Second Defendant. I can nonetheless distinguish that the document marked “PM12” is validly executed by the respective parties but for the stamp duty issue raised in paragraphs 21 to 23 above.
25. In light of my above discussion on the requirement of r. 15.3.18 (a) of the rules, I am certain that there are triable issues in this case that needed the intervention of this court to address. Due to the issues raised above on the validity of the issuance of PL No. 02/22 and ML No. 02/22 by the First Defendant to the Second Defendant, I can see no alternative remedy in this case but through a claim for judicial review. The issue of stamp duty and the issue of a proper executed agreement are issues of law that only this court is entitled to deal with. I also wish to state on hindsight that the Surafce Access Agreement executed by the First Claimant, the land trustees and the Ministry of Mines on 9 June 2023 will also face the same fate because the said agreement is not duly stamped under s. 9 of the Stamp Duties Act. The process of issuance of PL No. 04/22 by the Minister of Mines to the First Claimant could also be a nullity.
26. In any event, I am satisfied on the balance that the First and Second Claimants have met all of the requirements of r. 15.3.18 of the rules and the matter will progress to trial. And since the outstanding issues are issues of law, this proceeding can conveniently be disposed of through submissions from respective counsel on the issues stated. I order cost to be in the cause since the legal issues raised in this ruling were never addressed by any of the parties to this proceeding.

THE COURT
Justice Maelyn Bird
Puisne Judge