Barnabas v Solomon Islands Resources Co. Ltd [2023] SBHC 45; HCSI-CC 578 of 2022 (21 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Barnabas v Solomon Islands Resources Co. Ltd
Citation:
Date of decision:	21 July 2023
Parties:	Chief Stanley Barnabas v Solomon Islands Resources Company Limited, Pacific Nickel Mines Kolosori Limited, Attorney General
Date of hearing:	29 June 2023 & 1 July 2023
Court file number(s):	578 of 2022
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Bird, PJ
On appeal from:
Order:	In view of the strike out order under rule 15.3.20, I need not rule on the application for restraining orders filed on 22nd June 2023. I hereby order accordingly.
Representation:	Mr Lazarus Kwaiga for the Claimant Mr John Taupongi for the first Defendant Mr Lappy Hite for the Second Mr Harara for the Third Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r15.3.18r 15.3, r15.3.18 (d),r 15.3.20 Mines and Minerals Act [cap 42] S 11 (b) and (c) , S 20 (6), S 30,S 31 (1), S 32 (1), S 32 (2) and S 36
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 578 of 2022

BETWEEN

CHIEF STANLEY BARNABAS
(Representing himself an and his Iputu of Bugotu, Isabel Province)
Claimant

AND:

SOLOMON ISLANDS RESOURCES COMPANY LIMITED
First Defendant

AND:

PACIFIC NICKEL MINES KOLOSORI LIMITED
Second Defendant

AND:

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

Date of Hearing: 29 June 2023 & 1 July 2023
Date of Decision: 21 July 2023

Mr Lazarus Kwaiga for the Claimant
Mr John Taupongi for the First Claimant
Mr Lappy Hite for the Second Defendant
Mr Harara for the Third Defendant

Ruling on chapter 15 conference & Application for Restraining order

Bird PJ:

1. The claimant in this case filed a claim for judicial review on the 16th December 2022. The second and third defendants have filed their respective defences to the claim. The first defendant did not file any defence in contravention of the direction of the court on the 16th May 2023. A number of sworn statements were also filed by the claimant and the second and third defendants. There was no sworn statement filed on behalf of the first defendant.
2. This matter is listed before me for a chapter 15 conference under rule 15.3 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (CPR). In a chapter 15 conference, the court must be satisfied of all the requirements contained in r.15.3.18 of the CPR. They are:
   1. The claimant has an arguable case;
   2. The claimant is directly affected by the subject matter of the claim;
   3. There has been no undue delay in making the claim;
   4. There is no other remedy that resolves the matter fully and directly.
3. It is submitted by Mr Kwaiga of counsel for the claimant that his client satisfies all of the requirements of r.15.3.18 of the CPR. He relies on the following documents namely:
   1. Claim for judicial review filed on the 16th December 2022;
   2. Sworn statement of the Chief Stanley Barnabas filed on the 16th December 2022;
   3. 2nd sworn statement of Chief Stanley Barnabas filed on the 22nd March 2023;
   4. Sworn statement of Jasper Boiregia filed on the 22nd March 2023;
   5. Sworn statement of Ambrose Selo filed on the 22nd March 2023;
   6. Sworn statement of Peter Thompson Maniasi filed on the 27th March 2023
   7. Sworn statement of Jimmy Biriki Manedika filed on the 6th April 2023;
   8. Sworn statement of Eric Gnokro filed on the 15th May 2023.
4. The claim of the claimant is for judicial review seeking the following orders:
   1. An order quashing the decision of the Mines and Minerals Board approving the issuance of Mining Lease No. ML 01/22 to the first defendant over Suma in Bugotu District, Isabel Province having being made contrary to section 11 (b) and (c) of the Mines and Minerals Act (cap 42) as it covered Kolosori customary land owned by the claimants and his tribe.
   2. An order quashing the decision 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 section 11 (b) and (c) of the Mines and Minerals Act (cap 42) as it covered Kolosori customary land owned by the claimant and his tribe.
   3. 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 01/22 and ML 02/22 the customary land known as Kolosori customary land owned by the claimant and his tribe.
   4. Consequential order 1:
      1. A declaration that Mining Lease No 01/22 to the first defendant on 14 September 2022 does not cover Kolosori customary land owned by the claimant and his tribe;
      2. A declaratory order that Mining Lease No 02/22 issued to the second defendant on 14 September 2022 does not cover Kolosori customary land owned by the claimant and his tribe.
      100. A further declaratory order that Mining Lease No 01/22 to the first defendant and Mining Lease No 02/22 to the second defendant on 14 September 2022 wherein the said Mining Leases encroaches into Kolosori customary land is null and void ab initio.
   5. Indemnity cost against the defendants.
5. On behalf of the claimant, Mr Kwaiga submits that the court must be satisfied with all four requirements under r.15.3.18 to progress the matter to trial. On that note, Mr Kwaiga argues that his client has an arguable case pursuant to r.15.3.18 (a) of the rules. It is submitted that a significant portion of his client’s Kolosori customary land is covered by Mining Lease No 01/22 of the first defendant and Mining Lease No 02/22 of the second defendant. It is also submitted that their tribal secretary had submitted a letter, a of copy which is annexed to the 2nd sworn statement of Chief Stanley Barnabas filed on the 22nd March 2023 in exhibit marked “SB – 4” seeking removal of portions of Kolosori customary land included in the applications by the first and second defendants. Notwithstanding, the Surface Access Rights Agreements (SARA) were signed with the first and second defendants on the 11^th and 12^th July 2022 respectively.
6. It is submitted by Mr Kwaiga that the said exhibit had attached a number of cases that confirmed ownership of the subject land on his client’s tribe. It is further argued that those issues were not taken into account by the Director of Mines even though that letter was addressed to him. It therefore follows that the third defendant had failed to properly conduct themselves in accordance or within the ambit of its functions under section 11 (b) and (c) of the Mines & Minerals Act (cap 42) (the Act). Section 11 (b) and (c) provides:s.11 (b) & (c)The functions of the Board shall be –
   1. .....
   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, licences and lease to negotiate with landowners or landholding groups in order to enable such holders to gain access to affected land and carry out reconnaissance, prospecting or mining operations.
7. It is therefore submitted by Mr Kwaiga that despite having powers to excise (remove) the disputed land under s. 20 (6) of the Act, the Director of Mines had failed to so exercise that power imposed upon him. It is therefore submitted that the claimant has an arguable case.
8. It is further submitted by Mr Kwaiga that as per the requirement of r. 15.3.18 (b) of the rules, it is clear that his client is directly affected by the subject matter. Mining Lease No. 01/22 and Mining Lease No. 02/22 had both encroached into his tribe’s Kolosori land and as such that requirement is sufficiently met through the evidence adduced by his client.
9. The next requirement is whether or not there was undue delay in making the claim. It is submitted by Mr Kwaiga that there was no undue delay in the filing of the claimant’s claim. The respective Mining Leases complained of were issued by the third defendant on the 14^th September 2022 and the claimant’s claim was filed on the 22^nd December 2022, just over three months after the event.
10. In relation to the requirement under r.15.3.18 (d), it is submitted by Mr Kwaiga that there is no other avenue available to the claimant that would resolve the matter fully and directly. Only the High Court in its inherent jurisdiction, is the avenue available to the claimant to challenge the issuance of the two Mining Leases of the first and second defendants.
11. In respect of the first defendant’s position, I have not located any defence or sworn statements filed by Mr Taupongi of counsel for the first defendant. That in my view is not an attitude that should be entertained by the court especially when directions orders were made but not complied with by a party or their counsel and without any explanation. The court is therefore entitled to ask whether the first defendant should be heard without any document filed. There was also no written submissions made by counsel to assist the court. Notwithstanding, this is a chapter 15 conference and the case will either stand or fall at this stage of the proceeding.
12. It is nonetheless submitted by counsel that the court must take cognisance of CC554/22 to this case. He said the nature of the claim in CC554/22 is almost identical to this current proceeding but in CC554/22, his client was not named as a party. It is argued by counsel that the orders sought are misconceived because the powers referred to in s 11 (b) & (c) of the Mines & Minerals Act belongs to the Board only. The Minister of Mines under s.30 of the Mines & Minerals Act is the only authorised person to issue a Mining Lease. The case therefore should be struck out under r.15.3.20 of the CPR.
13. Mr Hite of counsel for the second defendant submits that his client, raises no issue in relation to the requirements in r.15.3.18 (b) and (c) of the CPR. The contentious issues are those in r.15.3.18 (a) and (d) of the rules. He says that claimant does not have an arguable case and that there are other remedies that could resolve the matter fully and directly.
14. In support of his argument, Mr Hite started off with the history of the case. He said that on 16 March 2022, his client submitted an application for a Prospecting License (PL) to the Director of Mines. On 22 March 2022, the Mines & Minerals Board (MMB) met and deliberated on the PL application. On 28 March 2022, the Director of Mines informed his client that its PL application was approved but subjected to an excision because of a pending PL application before the MMB. The PL application pending before the MMB was submitted by Iputu Development (SI) Ltd (IDSIL), a mining company interested in conducting prospecting over Kolosori customary land. On 4 April 2022, his client signed a renewed Surface Access Agreement (SAA) with respective members of the Veragabuhi clan, Ghoe clan and Thavia clan (Havivua Trustees). These trustees belonged to the Vihuvunagi Tribe and Taraoa Tribe of Havivua/Kolosori land.
15. On 27 May 2022 the Minister of Mines issued a Letter of Intent (LOI) to his client. On 1 June 2022, the Minister of Mines issued PL No. 2/22 to his client. Also on 1 June 2022, a renewed SAA was signed between his client and trustees of Havivua. The Minister of Mines issued PL No. 02/22 to his client on the same day. On 11 June 2022, a Surface Access Rights Agreement (SARA) was signed between his client and trustees of Havivua. On 23 August 2022 the claimant’s tribe referred a Bugotu’s House of Chiefs decision in Land Case No 7/18 held on 29 November 2018 to the Isabel Local Court (ILC). The chiefs decision was to the effect that what the claimant’s tribe had claimed to be part of Kolosori land was in fact Veragabuhi land owned by one of the Havihua trustees clan. On 14 September 2022, the Minister of Mines issue Mining Lease No. 02/22 to his client the second defendant.
16. Mr Hite argues that orders 1 and 2 of the claim for judicial review filed on the 16^th December 2022 are misconceived and seeks an improper exercise of the court’s discretionary powers conferred to improperly quash a validly issued ML No. 02/22 under the Mines and Minerals Act to his client. It follows that the persons or body that exercises powers under the Mines & Minerals Act are the Director of Mines, the Mines and Minerals Board and the Minister of Mines. They have separate and distinct powers at different stages of the process where an application for a Mining Lease is lodged under the Act. An application is necessarily submitted to the director of Mines under s.31 (1) of the Act. The MMB then considers the application under s.32 (1) of the Act. It is then the function of the Minister of Mines to issue a LOI under that section. Further that under s.32 (2) and s. 36 of the Act, the Minister also has the prerogative to approve and grant a Mining Lease. The Minister may grant a Mining Lease to an applicant if he is satisfied with the requirements stipulated under s.36 of the Act.
17. In light of the above provisions, it is argued by Mr Hite that the proper relief that the claimant should have sought would have been a quashing order against the decision of the Minister of Mines for approving and granting of ML No. 2/22 to the second defendant and ML No. 01/22 to the first defendant.
18. The alternative relief of mandatory orders sought to have the Director of Mines, MMB and the Minister of Mines to conduct an excision from the mining area is also misconceived on the basis that excision is normally carried out and done at an initial stage of the process and not when a Mining Lease had already been granted by the Minister. It is submitted that excision normally applies when a new application includes or overlaps with a previous or pending application for a prospecting license. It is however submitted that even if it does apply in this case, the evidence adduced in this case do not support the granting of the order. The chiefs decision of the Bugotu House of Chiefs pertaining to land boundary is adverse to the claimant’s claim.
19. It is also submitted by Mr Hite that the claimant’s claim against his client is confusing. He said the same claimant had initiated CC 554 /22 in which his client was sued as second defendant. Mr Hite submits that the orders sought in both matters are similar. Whilst CC554/22 is still on foot and yet to be determined, the claimant had initiated these proceeding and it is argued that it is an abuse of the process of the court. This claim is a duplication of the claim in CC554/22 and it should not allowed to stand.
20. The other contentious issue raised by Mr Hite is the requirement of r.15.3.18 (d) of the rules. It is submitted that the claimant and his tribe has referred the boundary issue of the disputed land to the Isabel Local Court. It is therefore submitted by Mr Hite that the claimant’s referral to the Isabel Local Court is an alternative remedy that would resolve the matter fully and directly. The issue of boundary which is claimed by the claimant and his tribe is yet to be finalised. At present, the boundary claimed by the claimant is disputed by the trustees of Havivua tribe. It is therefore submitted by Mr Hite that the claimant has not satisfied the requirement of r. 15.3.18 (a) and (d) of the rules and therefore the claimant’s claim for judicial review should be struck out under r.15.3.20 of the rules.
21. Mr Waiwaki on behalf of the third defendant submitted that the only requirement contested is that which is contained in r.15.3.18 (a). He does not raise any issue with the balance of the requirements under r.15.3.18. It is submitted by counsel that the functions referred to in s.11 (b) and (c) of the Mines & Minerals Act that the claimant is saying were breached are the functions of the Mines and Minerals Board. In this case, the process had gone past the stage complained of by the claimant. By the 14^th September 2022 the Minister of Mines has already exercised his powers under s. 32 (2) and 36 of the MMA. In that regard the orders sought by the claimant in paragraphs 1 and 2 of his claim for judicial review could not assist him in any positive way.
22. In relation to the order sought in paragraph 3 of the orders sought, that mandatory order could not succeed. It is submitted that the root issue of the claim is one of boundary of Kolosori land. It is further submitted that from the materials before the court in this case, they are not sufficient to assist the court in determining the boundary of Kolosori land. In fact there is a referral to the Isabel Local Court on that very issue and which is not yet finalised. It is therefore submitted on behalf of the third defendant that the first requirement under rule 15.3.18 is not satisfied by the claimant and this judicial review claim ought to be struck out under r.15.3.20 of the rules.
23. Having discussed all the respective submissions by the claimant, the first, second and third defendants as well as the claim, defences and all the materials filed, it is obvious that the contentious issue is whether or not the claimant has an arguable case under r.15.3.18 (a) of the rules. The claim of the claimants is for a quashing order against the decision of the MMB to approve the issuance of Mining Lease No. 01/22 and Mining Lease No. 02/22 to the first and second defendants.
24. In this case, the Minister of Mines have already exercise his powers under s.32 (2) and s.36 of the MMA in issuing the respective Mining Leases to the first and second defendants. The claim for judicial review filed on behalf of the claimant does not seek to quash the decision of the Minister of Mines in issuing the respective Mining Leases. The final stage of the process had been reached when the Minister of Mines issued the respective Mining Leases to the first and second defendants under s.32 (2) and s.36 of the Mines and Minerals Act. If the court is minded to grant the orders ought in paragraph 1 and 2 of the orders sought, what good will that do to the claimant when the Minister had already issued the respective Mining Leases.
25. The mandatory orders sought in paragraph 3 in my considered view will not be of any assistance to the claimant either. It is the claimant’s case that they have referred the boundary issue to the Isabel Local Court for further determination and therefore how could the third defendant conduct an excision of the disputed area. There must be clear demarcated boundaries set out by the relevant courts that could assist this court in determining the order sought. At present, I am not assisted by any evidence to say that there has indeed been encroachment into the boundary of the claimant’s Kolosori land except the various maps in the numerous sworn statements that tend to demarcate the said boundaries and the alleged encroachments. So minus any decisions from any relevant courts, I am unable at present to say that the orders sought in paragraph 3 of the orders sought could have been granted in favour of the claimant. The claimant could have amended his pleadings and the orders sought but that was not done and that proved to be fatal to his case.
26. Taking into account all of the above discussion in this case, I am not satisfied that the claimant had satisfied the requirement of r.15.3.18 (a) of the rules. I am therefore not satisfied that the claimant does have an arguable case. I strike out the claim for judicial review filed on the 16^th December 2022 with cost under rule 15.3.20 of the CPR.
27. In view of the strike out order under rule 15.3.20, I need not rule on the application for restraining orders filed on 22^nd June 2023. I hereby order accordingly.

THE COURT
Justice Maelyn Bird
Puisne Judge