Was the Preservation Site and Artifacts Regulation No.38 of 1997, made
within the proper exercise of discretionary power
and in accordance with
principles of natural justice?
The Supreme Court has jurisdiction under Article 47 in addition to n to its other
powers to conduct Judicial reviews on
the exercise of powers by Ministers in
making regulations to ensure such exercise made fairly and within the law.
This
function reflected the principle of democratic governing of the people
where there is a check and balance on exercise of powers.
And as submitted
by the Plaintiffs counsel, which I agree that Judicial Review is concerned
not with the decision of
which review is sought but with the decision making
process
(R v Chief Constable of North Wales Police, ex p. Evans, the Times July 24,
1882, H.L.)
Summary
The plaintiffs are directors past and present of Nengau Entanyntany Management
Co. Ltd. or trustee of Nengau Entany Trust.
Prior to 1992 the Yasur Volcano, Tanna IslanIsland, was at different times under
the control of various bodies or committees
on Tanna. There were various
dispute and allegations of mismanagement, resulting to Civil Case No. 74 of
1992 where the
Supreme Court made the following orders: -
a) &&nsp;;&nspp;&nssp; &nbp;
b) & &nsp; &nbssp; &nbssp;
Foan>Forming a committee to be known as Tanna volcano committee. That
committee to comprise nine members, three each to point
1) &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>Neprew commitommittee
an">
2) &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
Thee Sand Sand Area Co
3) &nnsp;&&nsp;;&nspp;&nssp;&nsp;   Nikoletan Coun Council of Chiefs
On the 13th May 1993, the Preservatirvation of sites and Artifacts
Regulation No. 13 of 1993 was made by the Minister declaring Yasur Volcano
site. The Regulation provides for; the general management and control of the
volcano to be vested in the Council of Chief
of Tanna; for a trust to be
formed and to be known as Nengau Entany Trust, to manage the volcano for the
benefit of the
Tanna people. The trust was joined by the deed dated the 1st
December 1993. The deed provided for the formation of a company called
Nengau Entany Management Company Ltd to assist
in the management of trust,
and provides for directors of company to consist of nine members, 3 from the
Neprew Committee,
the White Sand Area Council 3 and the Nikoletan Council of
Chief 3. The deed and formation of the company was in line with
the Supreme
Court decision Civil Case No. 74 of 1992. However, the amendment No. 38 of
1997 was made amending Regulation
No.12 of 1993 amending only section 3 and
section 1 & 2 remain. This amendment changes the management structure of the
Nengau Entany Trust as provided for by the “Trust Deed” made in accordance
with the decision of the Supreme Court in
Civil Case No. 74 of 1992 and
right of ownership by Land Court Appeal case No.12 0f 1984.
The decision of the Land Court of Appeal is as follows;
“In
my opinion, the evidence is so conflicting regarding the land on which the
volcano stands, that I cannot accept that
either of the parties or their
ancestors owned the land. Accordingly, the customary ownership is with the
chiefs and
the people of Tanna and I so hold”.
class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
Preservation of sites and Artifacts Regulation Noon No. 12 of 1993 Regulation No.
3 states: -
“Management
Authority
(2) ; &nsp; Subject to sub regul (1), (1), the council shall incorporate a
Trust to be known as the Nengau Entany
Trust to manage the Yasur volcano on
a commercial basis for the benefit of the people of Tanna.
(3) &nbbsp;& bsp; bsp; Thp; The composition and structure of the Trust which is set up in
accordance with sub regulation
(2) shall be composed of three members each
of the Nikoletan Council of Chiefs, the Nepreu Committee ae White Sands
Area
Coea Council and shall be subject to approval by the Minister.”
Preservation of Sites and Artifacts (Amendmeendment) Regulation No. 38 of 1997
states: -
“The
Preservation of Sites And Artifacts Regulation No. 12 of 1993 is hereby
amended in regulation 3 by deleting sub regulation
3 thereof and
substituting therefore the following new sub regulation 3: -
The composition and structure of the Trust which is set up in accordccordance
with sub regulation (2) shall be composed
of the people of Whitesands each
of whom shall represent each of those portions of land adjoining the Yasur
Volcano shown
as land portion Nos. 50, 51, 52, 56, 57, 64, 68, 70 and 71 in
the Schedule to these Regulations.
The comion of the Trust shall be s be subject to the approval of the
Minister
New development
Basing on this amendment, the parties acted upon it by taking a civil case
No. 34 of 2000 in the Magistrate’s Court seeking
to enforce the application
of the amended Regulation. This case stands adjourned on a basis of consent
orders, which
have, inter, and established an interim committee to manage
the affairs of the Nengau Entany Trust, pending the determination
of this
matter now before this Court.
Section 11 states: -
“The
Minister may by order make regulations for the better carrying out of the
provision of the Act.”
Section 2 states: -
class="MsoBoMsoBodyText" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
pan>The
Minister may, after consultation with the Board of Management of the Port
Vila Cultural Centre, classify any sites
of historical, ethnological or
artistic interest which is in the possession of any person or body coronate
domicile in
Vanuatu.”
This amendment created two enforceable legal rights in law;
l">
1. &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp;
p;
By order of the Court, in Land Court Appeal case No.12/derin rif ownp to anna e and Case4/199ering the
estabestablishmlishment
oent of thef the trus trust acct account,ount, so t so that any money collected from tourist
to be deposited to this trust
account and that a committee to be formed and
to be known as Tanna Volcano Committee comprising of 3 members each from the
Neprew Committee, the White Sands Area Council and Nikoletan Council of
Chiefs, incorporated in rule No. 3 of the Preservation
of Sites and
Artifacts Regulation No. 13 of 1993, which sets out the bodies.
2. &&nsp;;&nspp;&nssp; &nbp;
This amendment removed the benefit from the Chiefs and and the Tanna people,
from the volcano and confines it only to
the people living in those
portions.
Due to both regulations the Neprew Committee, White Sands Area Council and
the Nikoletan Council of Chiefs maintain that
they are still the recognized
group of the trust, and owners by the court order of 12/84, while the new
groups by amendment
of No. 33 of 1997 maintain that they are now the
recognized group of the trust. And therefore, there is a real dispute
between these two parties to be sorted out, created by the regulations.
The applicant’s counsel advances that the Ministinister has no power under
Section 2 to make such amendment.
On this advant, the Minister under Sect Section 2 of the Act has the
discretionary power to classify only any site of
historical, ethnological or
artistic interest, which is in the possession of any person or body
corporate domicile in
Vanuatu. To exercise this discretion, the Minister
must consult the Board of Management of the Port Vila Cultural Centre first,
nothing there to give him the power to allocate ownership. The mandate of
the Act called for preservation of sites only
and not allocation of
management of trust, as that is an incorporation matter for the parties to
decide in the formation
of the management of the Trust and to be govern in
the article of Association of the trust, as taken place already in
accordance with Regulation No.12 0f 1993. Section 11 gives the Minister the
general power to make regulation and not section
2. I can accept that
Regulation No. 38 of 1997 was an exercise of powers by the minister under
section 11.
<
Reasonsanagement and control
At least the Minister at that time in e in making Regulation No. 12 of 1993 was
guided by the: - Land Court Appeal Case
No. 12 of 1984;
civil case No. 74 0f 1992; the view of Tanna Council of Chief and the
interest of the whole Tanna people, and reflects
a fair representation of
the community, in line with the court’s decisions as to ownership and
management. As for Regulation
No.38 0f 1997 there are no record or reasons
for forming the basis or grounds for the exercise of the minister’s power to
make the regulation. Moses Kahu, a Board of Director of past and present in
his affidavit, they were not consulted before
such amendment took place with
all interested party. The interested party will be the whole people of Tanna,
represented
by the Council of Chief of Tanna divide into those three groups.
No evidence to show that all parties were represented before
the minister’s
exercise of power.
Even though the power of the minister in making regulations is n is not disputed,
the Applicant counsel advances that
the exercise of that power was;
unreasonably; in bad faith; not for the proper purpose; and not in accorded
with the
spirit and letter of the empowering Act.
I find the minister in making the regulaegulation cannot act a lone but first in
consultation with the people of Tanna,
represented by those three groups
including the Board Members of the Nengau Entany Trust established pursuant
to Regulation
No. 12 of 1993, and within the finding of the Land Court
Appeal in giving the land to chief and the people of Tanna. By not
contacting and convening meetings with these groups in taking their views
and ideas in effecting the Regulation No. 38
of 1997 will be in breach of
the principle of Natural Justice. This principle demonstrates the very
essence of the right
to be heard. If the minister did not hear their views,
and failing to adhere to the court order of 12/84 in giving legal ownership
to the people of Tanna before making the regulation, he will be acting
unfairly and even seen to be acting unfairly in
the interest of the Chiefs
and people of Tanna and against the land court order of 12/84. The Land
Court Appeal has not
been reviewed or changed and remain enforceable by the
parties as a right. The minister cannot use legislative power to take
away
the rights of ownership of the parties under the Land Court Appeal order of
12/84, as that is the final order.
The principle of making laws is mandated under article 16 (1) of the
Constitution states: -
“Parliament may make laws for the peace, order and good good government of
Vanuatu.”
Even though was for parliamentarians, tns, the minister, being a Member of
Parliament must also exercise similar representative
approach in making
regulation in regulating the rights of the people of Tanna and cannot go
outside the Land Court Appeal
findings.
minister was the only person under the parent Act empowereowered to determine
the rights, by regulations, of the people
of Tanna, including the management
of the Trust for the people. By operation of S.11 of the Act, it is assumed
therein
that such power should be exercised fairly and with due
consideration of rights and interest adversely affected. By deleting
the
other groups against their right of ownership over the land, and without
giving them a right to be heard was unreasonable
in a democratic society
govern by the rule of law, and the right to be heard as the basis for fair
decision-making. The
question one might ask is; if this law remains will the
affected people remain in peace? The answer will be no, and the pending
court case will tell it so. I find that the minister was acting
unreasonably, unfairly and without having proper regards
to the rights of
the Applicants and the people of Tanna and inconsistence with the finding of
the Court, and his decision
to make the regulation is declared
unjustifiable, unfair and not within the good spirit of the Act in
benefiting the
people of Tanna, and his decision to make such regulation to
be declared annulled and of no effect. In declaring his decision
as null and
no effect, the regulation No.38 of 1997 stand repealed. This will put the
parties back to Regulation No.12
of 1993.
lass="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
This finding does not interfere with the power of thef the minister to make
regulations on the same subject matter, as
long as all parties are heard and
within the rights of the parties in the Land Court Appeal finding giving
ownership
to the Chiefs and people of Tanna.
The intervention of the court is to ensure that the minister acts within his
powers, if not than the parties will keep
coming back to court for redress
on their rights.
The effect of this deciss for all parties to continontinue to run the trust
in accordance with the laws and deed in place
for the proper management of
the Trust for the benefit of the Tanna people.
I therefore grant the following orders as soughtought: -
1. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp;
p;
I de that that the Preservation of Sites and Artifacts (Amendment)
Regulation Noof 19de onbout the 1>th
l">
2. &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp;
p;
I declare that the Presg Sites and Artifacts (Amendment)
Regulation No. 38 of 1997 is null and void and of n of no effect.
DATED at Port Vila, this 8th day of March 2002.
R. MARUM
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/vu/cases/VUSC/2002/16.html
