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Rae v Rabi Council of Leaders [2025] FJHC 793; HBM73.2025 (31 December 2025)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION


CIVIL CASE NO: HBM 73 OF 2025


BETWEEN:
ITINTERUNGA RAE
of Uma Village, Rabi Island in Fiji


APPLICANT


A N D:
RABI COUNCIL OF LEADERS
A body corporate having its registered office on Rabi Island in Fiji


RESPONDENT


Counsel: Mr. S. Fatiaki Law for the Applicant

Mr. V. Filipe for the Respondents

Ms. N. Narayan with Mr. J. Chand for the Attorney General’s Office


Date of Hearing: 3rd September 2025

Date of Judgment: 31st December 2025


JUDGMENT


Introduction


  1. The Applicant, Itinterunga Rae, issued this Notice of Originating Motion pursuant to Section 44(1)(a) of the Constitution and Rule 3(1) of the High Court (Constitutional Redress) Rules 2015, seeking the following orders:
    1. A Declaration that the Respondent is a public office as contemplated under Section 25 of the Constitution of the Republic of Fiji,
    2. A Declaration that the Applicant is entitled to the right to access information held by the Respondent, as guaranteed under Section 25 of the Constitution of the Republic of Fiji,
    3. A Declaration that the Respondent has contravened the Applicant’s constitutional right to access information by refusing and/or neglecting to provide the said information without lawful justification, in breach of Section 25(1) of the Constitution of the Republic of Fiji,
    4. An Order directing the Respondent to provide the information specified in the table marked as Annexure RB-12 to the Applicant within seven (7) days of this Order,
    5. An Order that the Respondent pay general and/or punitive damages, as the Court deems fit, for the violation of the Applicant’s constitutional rights,
    6. An Order that the Respondent pays costs to the Applicant on an indemnity basis,
    7. Such further orders as this Honourable Court deems just and appropriate in the circumstances.
  2. The Notice of Originating Motion was supported by an Affidavit of the Applicant setting out the background and material facts of this application. Upon being served with this Notice of Motion, the Respondent and the Attorney General filed their respective affidavits in opposition. Mr Apete Bauleka, a Legal Officer of the Attorney General’s Office, filed an affidavit in opposition that was disappointingly unsatisfactory and unhelpful. It was apparent that the Counsel who initially appeared for the Attorney General’s Office did not properly appreciate the importance of Rule 5 of the High Court (Constitutional Redress) Rules, as well as Section 44(8) of the Constitution. The Court must express its gratitude to Ms Narayan, the Counsel who replaced the previous Counsel for the Attorney General’s Office, for taking the initiative to file, with the leave of the Court, a supplementary affidavit of Mr Filipe Bainimoli, which provided materially essential facts relevant to this application.
  3. Subsequently, the Court heard the oral submissions of the learned counsel for the parties and then directed them to file their respective written submissions. Only the Applicant and the Attorney General’s Office filed their respective written submissions as directed; the Respondent did not. Having carefully considered the respective affidavits and oral and written submissions of the parties, I now pronounce the Judgment in this matter.

Background


  1. The Applicant, a rights activist for the Banaban people, sought information regarding possible mining activities on Banaba Island from the Respondent, who is the Administrator of the Rabi Council of Leaders, appointed under Section 6C(4) of the Banaban Settlement Act 1970. As deposed in the Applicant's affidavit, the Respondent refused the Applicant access to this information, which the Applicant claims is a breach of his right of access to information as guaranteed under Section 25 of the Constitution.
  2. Initiating this application under Section 44(1) of the Constitution, the Applicant seeks, among other relief, an order granting access to information set out under thirteen headings in the annexure marked IR 12 to the affidavit in support, which I reproduce below:

Information relating to Contrex


(1) Any agreement signed between Rabi Council of Leaders (RCL) and Centrex dealing with exploration of phosphates on Banaba Island,

(2) RCL letter to Centrex’s Managing Director dated 15 August 2023,

(3) RCL records of its consultations with Banabans regarding the Centrex agreement prior to its execution,

(4) All formal correspondence between RCL and Centrex with respect to the exploration of phosphates on Banaba Island,

(5) Information regarding any form of payments made by Centrex to RCL and/or its associates in respect of the exploration of phosphates on Banaba Island, including accounting records,

Information relating to the RCL

(7) The Terms of Reference or any document outlining Mr. Iakoba Karutake’s engagement as the Rabi Administrator which specifies his roles and responsibilities,

(8) Any agreements that the RCL has executed relating to the sale of pinnacles from Banaba to any third parties,

(9) RCL’s records of consultation and approval provided by the people of Tabwewa and Uma villages as stated in RCL’s Facebook Press Release dated 20 November 2024,

(10) All village meeting minutes since September 2023 to date,

(11) Records of all land leases which RCL have facilitated in 2024,

(12) Records and minutes of all discussions on the Banaban Airport includes feasibility studies and Environment Impact Assessment,

(13) Records of Banaba Trust Fund audits and information pertaining to mismanagement of this fund that resulted in the dissolution of the RCL in 2013.
  1. In his affidavit in opposition, the Respondent stated that the proposed project by Centrex Limited to recover and restore phosphate reserves on Banaba Island was put on hold due to objections. He further asserted that the Administrator was appointed by and directly answers to the Minister responsible for Rabi Island matters, that is, the Prime Minister; hence, the Applicant must seek access to this information from the office of the Prime Minister.
  2. In his supplementary affidavit, Mr Filipe Bainimoli, the Senior Project Planning Officer at the Office of the Prime Minister, deposed that their records do not show any executed agreement between the Rabi Administrator and Centrix Limited. Mr Bainimoli further stated that the Office of the Prime Minister received a proposal from Centrix Limited on or about 12 September 2022 concerning the possibility of re-mining on Banaba Island. The Department of Mineral Resources and the Department of Environment in Fiji sought clarification from Centrix Limited regarding the proposed mining activities, but Centrix provided no such clarification; hence, the matter did not proceed any further.

Section 25 (1) (a) of the Constitution


  1. Appraising the factual background of this application and the positions of the parties, I shall now turn to discuss the scope of the right of access to information held by a public office as stipulated under Section 25 of the Constitution. Section 25 (1) (a) of the Constitution states:

“Every person has the right of access to-


  1. Information held by any public office;
  1. The right of access to information is not an absolute right, as its scope may be limited by law, as set out in Section 25 (3) of the Constitution, which states:

“(3) To the extent that it is necessary, a law may limit, or may authorise the limitation of, the rights set out in subsection (1), and may regulate the procedure under which information held by a public office may be made available.


  1. Undoubtedly, the right of access to information is essential in a democratic society and is vital to the full enjoyment of the right to expression. In the context of this application, I do not wish to engage in a detailed discussion of this right; rather, I will focus on the scope and boundaries of the information held by the public office that is available for access under section 25(1)(a) of the Constitution.
  2. Section 25(1)(a) of the Constitution does not establish a broad right to access all information. Instead, it concerns 'information held by the public office,' meaning information controlled by, or lawfully accessible to, the public office in the performance of its duties under the law. The section does not cover information outside the custody, control, or statutory responsibility of that office. It also does not require the public office to create, compile, explain, or seek information from third parties.
  3. The majority of the information the Applicant seeks concerns the possible exploration and mining of phosphate on land on Banaba Island. Under Section 132 and Schedule 2 of the Constitution of Kiribati, Banaba Island forms part of the territory of the Kiribati Archipelago. The preamble of the Constitution of Kiribati further states that the natural resources of Kiribati are vested in the people and their Government. Accordingly, it is important to determine whether the information concerning the possible exploration and mining of phosphate on Banaba Island falls within the meaning of “information held by the Rabi Council of Leaders’ as stated under Section 25 (1) (a) of the Constitution.

Historical Background of the relocation of the Banaban People on Rabi Island


  1. Accordingly, it is vital to understand the historical background of the Banaban people's relocation from Banaba Island to Rabi Island. The Court must express its gratitude to Mr Fatiaki for providing helpful materials on the historical background of the Banaban relocation to Rabi Island, including two detailed academic articles by Jane McAdam, a Professor of Law at the University of New South Wales, and Gil Marvel Tabucanon of Macquarie University.
  2. Banaba Island, also known as Ocean Island, is a small atoll in the North Pacific, approximately 300 kilometres from Nauru, and was originally inhabited by the Banaban people. Following the discovery of high-grade phosphate on the island, Banaba was annexed to the British colony of Gilbert and Ellice Islands. Excessive phosphate mining rendered the island uninhabitable. The British Authorities established the Banaban Fund to purchase another island and, eventually, to relocate the Banabans to the new location. In 1942, the British Authorities purchased the freehold title of Rabi Island in Fiji on behalf of the Banabans. The first relocation of the Banabans to Rabi Island occurred in 1945. The Banaban Settlement Ordinance 1945 and the Banaban Funds Ordinance 1948 provided the legal framework for governing the Banaban community on Rabi Island. Following Fiji’s independence, the two principal pieces of legislation governing the affairs of the Banaban community on Rabi Island are the Banaban Settlement Act 1970 and the Banaban Land Act 1965.

The Banaban Settlement Act 1970 and the Banaban Land Act 1965


  1. The title of the Banaban Settlement Act 1970 states:

“An act to provide for the settlement and government of the banaban community on rabi island and for purposes connected therewith”.


  1. Consequently, the purpose of the Banaban Settlement Act is to settle and govern the Banaban community on Rabi Island and to address matters connected with those purposes. Section 3 of the Act established the Rabi Council of Leaders, whereas under Section 5 of the Banaban Settlement Act, stipulated its powers, which are set out as follows:

“The Council shall have power to hold land in accordance with the provisions of the Banaban Lands Act 1965, to enter into such contracts as are necessary and incidental to the exercise of their powers under this or any other Act or which are for the benefit of the Banaban community, and to sue and be sued in contract or otherwise in relation to the exercise of any power given by this Act”


  1. Section 2 of the Banaban Land Act defines "Banaban lands" as the land on Rabi Island. Under Section 5 of the Banaban Settlement Act, the Rabi Council of Leaders, with the prior approval of the Minister, has the authority to make regulations for the peace, order and good government of the Banaban community. The Banaban Trust Fund, established under Section 6B of the Banaban Settlement Act, serves as the investment arm of the Banaban Community, and the net income from its investments is transferred to the Rabi Council of Leaders in accordance with the procedure set out in Section 6C of the Banaban Settlement Act.
  2. The title of the Banaban Land Act states:

“An act to make better provision for the ownership, registration and dealing with land on rabi island and land owned by the banaban community and matters incidental thereto”.


  1. Under the Banaban Settlement Act 1970 and the Banaban Land Act 1965, the authority conferred on the Rabi Council of Leaders does not extend to any rights or interests in land on Banaba Island. The Rabi Council of Leaders, under the provisions of the Banaban Settlement Act and the Banaban Land Act, exercises its power and authority over the Banaban community on Rabi Island, taking into account the traditional and customary practices of the Banaban community.

Constitution of Kiribati


  1. Having comprehended the legal framework established under the Fiji legal system, I shall now turn to the constitutional mechanism in Kiribati regarding the Banaban community relocated to Rabi Island.
  2. Section 119 (1) of the Constitution of Kiribati explicitly states that the right and interest of the Banabans in any land on Banaba Island must not be affected in any way by their residence on Rabi Island in Fiji. Section 119 (1) of the Constitution of Kiribati stipulates:

“Where any Banaban possesses any right over or interest in any land in Banaba, such right or interest shall not be affected in any way by reason of the fact that he resides in Rabi Island in Fiji.


  1. The Rabi Council of Leaders has been vested with the authority under Section 117(2) of the Constitution of Kiribati to nominate a member of the Parliament of Kiribati to represent the Banaban Community. As defined under Section 125(a) of the Constitution of Kiribati, the Banabans means the former indigenous inhabitants of Banaba and such other persons whose ancestor was born in Kiribati before 1900. Consequently, the definition set out in Section 125(a) includes the Banaban community on Rabi Island. The nominated member of the Parliament by the Rabi Council of Leaders falls within the meaning of public office as defined under Section 133(1)(b) of the Constitution of Kiribati.
  2. A Bill to amend the provisions of Chapter IX of the Constitution, which deals with the Banaba and Banabans, and Chapter III of the Constitution, which covers the rights of citizens and Banabans, cannot be passed in Parliament without the vote of the nominated member appointed by the Rabi Council of Leaders.
  3. The legislative authority of the Parliament of Kiribati is set out in Section 66 of the Constitution of Kiribati, which provides that the Parliament has the power to make laws for the peace, order, and good government of Kiribati, including Banaba Island, as provided for in Section 132 and Schedule 2 of the Constitution of Kiribati.
  4. Section 12 of the Constitution of Kiribati recognises the right of access to information as part of the right to expression, and Section 17 provides the enforcement mechanism for any breach or contravention of that right.
  5. Furthermore, under Section 88(1) of the Kiribati Constitution, the High Court has jurisdiction to issue a declaration or grant relief if it is satisfied that a violation or potential violation of constitutional provisions affects the rights and interests of Banabans or the Rabi Council under Chapter IX or III of the Constitution. An appeal against such High Court orders lies to the Judicial Committee of the Privy Council as of right (see Section 123 of the Constitution of Kiribati).

Sovereignty of State & Comity in International Law.


  1. Considering Kiribati’s constitutional framework regarding the rights and interests of Banabans in the lands on Banaba Island, as well as the legal structure established under the Banaban Settlement Act 1970 and the Banaban Land Act 1965 to settle and govern the Banaban community on Rabi Island, the Court, in this matter, must consider the application of Section 25 (1) (a) of the Constitution, taking into account two essential legal concepts under international law, viz. the sovereignty of the state and comity.
  2. Fiji is a sovereign democratic State, and Kiribati is a sovereign democratic republic (see Sections 1 of the Constitutions of Fiji and Kiribati). Accordingly, both States are sovereign. Black’s Law Dictionary (10th Edition at p 1611) defines a sovereign State as:

“A state that possesses an independent existence, being complete in itself, without being merely part of a larger whole to whose government it is subject.


A political community whose members are bound together by the tie of common subjection to some central authority, whose commands those members must obey”


  1. The sovereign State comprises two principal elements, i.e., territorial sovereignty and territorial integrity. The locus classicus for defining territorial sovereignty in International Law is the International Arbitral Award in the Island of Palmas case between the Netherlands and the USA (U.N. Rep. Int' l Arb. Awards 829 (Perm. Ct. Arb. 1928)), where the Board of International Arbitrators outlined at p. 838:

“Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.....”


  1. Accordingly, the State's territorial sovereignty is the exclusive legal authority to exercise jurisdiction over persons, property, and activities within its borders. Territorial integrity is closely linked to territorial sovereignty, as the preservation of territorial integrity helps safeguard territorial sovereignty.
  2. Territorial integrity safeguards a state's territory against unlawful interference or dismemberment by other States. These principles are fundamental to the international legal framework and are well established in customary international law. Articles 2(1) and 2(4) of the UN Charter explicitly recognise these crucial legal concepts within the international legal system.
  3. Black’s Law Dictionary (10th Edition, p. 1701) defined territoriality, adopting the three maxims of the famous Dutch jurist Ulrich Huber, as follows:

“Territoriality, Int’l Law. The principle that a country has the right of sovereignty within its borders.


“ Three maxim formulated by the seventeenth - century Dutch scholor Ulrich Huber, undersigned the modern concept of territoriality: (1) a state’s law have force only within the state’s boundaries; (2) anyone found within the state’s boundaries is subject to the state’s authority; and (3) comity will discipline sovereign exercises of authority so that the territorial effect of each state’s law is respected.” Paul Goldstein, International Copyright: Principles, Law and Practice 64 (2001).


  1. As outlined by Ulrich Huber’s first maxim, the territorial scope of the Banaban Settlement Act 1970 and the Banaban Land Act 1965 is limited to the Fiji Islands. In contrast to the second maxim of Huber, the Kiribati Constitution recognises the rights and interests of Banabans living on the Rabi Islands in the lands on Banaba Island as a special legal and constitutional arrangement, thereby recognising the rights and interests of the relocated Banabans in their traditional home on Banaba Island.
  2. The third maxim of Huber introduces another important concept in international law: the principle of “comity”. The United States Court of Appeals (District of Columbia Circuit) in Laker Airways Ltd v Sabena Belgian World Airlines [1984] USCADC 103; 731 F 2d 909 (DC Cir 1984) emphasised the importance of comity in the international legal system, observing:

“Comity is a necessary outgrowth of our international system of politically independent, socio-economically interdependent nation states. As surely as people, products and problems move freely among adjoining countries, so national interests cross territorial borders. But no nation can expect its laws to reach further than its jurisdiction to prescribe, adjudicate, and enforce. Every nation must often rely on other countries to help it achieve its regulatory expectations. Thus, comity compels national courts to act at all times to increase the international legal ties that advance the rule of law within and among nations” (emphasis added)


  1. In international law, comity is a discretionary practice whereby a State or its courts recognises and honours the legislative, executive, or judicial acts of another State. This recognition is not based on legal obligation but on mutual respect, convenience, and the desire for orderly international relations.

Jurisdiction in relation to the rights and interests in the lands on Banaba Island.


  1. Considering the two legal regimes of Fiji and Kiribati in light of the above-outlined principles of international law, it is clear that the authority and power of the Rabi Council of Leaders under the Banaban Settlement Act 1970 and the Banaban Land Act 1965 have not been extended to any right or interest in lands on Banaba Island.
  2. However, the Constitution of Kiribati, as outlined above, confers on the Rabi Council of Leaders, created under the Banaban Settlement Act 1970, the authority to appoint a member of Parliament to represent the Banabans, including those residing on the Rabi Islands (see Sections 117 and 125 of the Constitution of Kiribati). The member of Parliament nominated by the Rabi Council of Leaders must also represent the Banabans' rights and interests in the lands on Banaba Island, as outlined under Section 119(1) of the Constitution.
  3. Accordingly, by nominating a member to the Parliament of Kiribati, the Rabi Council of Leaders has a duty under the Constitution of Kiribati to represent the rights and interests of the Banabans, including those living on Rabi Island in the lands of Banada Island.
  4. Hence, if the Rabi Council of Leaders or the Rabi Administrator holds any information pertaining to the possible exploration and mining of phosphate on Banaba Island, it has obtained or ascertained that information in the performance of its duties under the Kiribati constitutional framework. Therefore, if the applicant seeks access to that information, he must do so under the Kiribati legal system, which provides enforcement and remedial procedures if such rights of the applicant as a Banaban are refused or breached (see: Sections 12, 17, 88, 119 and 123 of the Constitution of Kiribati).
  5. Considering the historical, cultural, traditional and emotional interests of the Banabans on Banaba Island, the court is acutely conscious of the importance of the Applicant's access to any information regarding the possible exploration and mining of the remaining phosphate on Banaba Island. However, having considered the above-outlined legal principles, this court is hesitant and reluctant to venture into a legal domain not provided for under the Fijian legal system and to grant the remedies sought from the court, knowing that the Kiribati constitutional framework has clearly recognised these rights of the applicant, which he can exercise legally, and that Banaba Island falls within the territorial sovereignty of Kiribati.
  6. Consequently, the Court lacks jurisdiction to order the Respondent to provide access to the information sought under numbers 1 to 5, 8, 9 and 10 of the annexure marked as IR 12 to the Affidavit in Support.

Leave pursuant to Rule 3 (2) of the High Court (Constitutional Redress) Rules.


  1. Rule 3 (2) of the High Court ( Constitutional Redress) Rules states:

An application under paragraph (1) must not be admitted or entertained after 60 days from the date when the matter at issue first arose unless a Judge finds there are exceptional circumstances and that it is just to hear the application outside of that period.


  1. The Applicant acknowledged that his application was nine days outside the sixty-day time limit, as the breach occurred seven days after service of his request through his lawyer on the 27th of January 2025, seeking access to the information. However, the learned Counsel for the Applicant submitted that he was of the view that this breach does not fall within the sixty-day limitation, as it continues on each day of refusal to grant access to the information.
  2. Having considered the length of the delay, which was just nine days, the essential nature of this application to the Applicant, and the absence of substantial prejudice to the Respondent in defending this application, I granted leave to proceed with this application and concluded the hearing.
  3. Section 163(1) of the Constitution states that an office established by written law is a public office. The Council of Leaders is established by Section 3 of the Banaban Stellement Act, thereby making the Council of Leaders a public office.

Access to Information regarding the Rabi Council of Leaders.


  1. The learned counsel for the Applicant withdrew the Applicant's claim in respect of items 11 and 12 of the annexure marked as IR 12. Under item 7, the Applicant seeks access to the terms of reference or any documents setting out Mr Karutake’s appointment as the Rabi Administrator under Section 6C (4) of the Banaban Settlement Act 1970. He further seeks access to the audit report of the Banaba Trust Fund and information regarding the mismanagement of the fund that led to the dissolution of the Rabi Council of Leaders in 2013, under item 13 of the annexure marked as IR12.
  2. Neither the Respondent nor the Attorney General's Office contended that any law limits or authorises limiting access to information regarding the terms and conditions of the appointment of the Rabi Administrator under Section 6 C (4) of the Banaban Settlement Act, nor to the audit report of the Banaban Trust Fund in 2013 that eventually led to the dissolution of the Rabi Council of Leaders in 2013.
  3. The Applicant, as a member of the Banaban community living on Rabi Island, has the right under Section 3(2) of the Banaban Settlement Act 1970 to vote at the general election, as outlined in regulation 2 of the Banaban Council Regulation 1951, to elect two members from his village to the Rabi Council of Leaders. Therefore, the Applicant has an interest in accessing this information, as outlined in the preceding paragraph.
  4. The only concern is that there is no information before the Court regarding whether a criminal investigation into the mismanagement of the Council's affairs, which led to the dissolution of the Council of Leaders in 2013, is underway. However, the public interest in access to this information outweighs any concern about non-disclosure.
  5. In conclusion, I make the following orders.
    1. That the Rabi Council of Leaders, established under Section 3 of the Banaban Settlement Act 1970, is a public office,
    2. The High Court has no jurisdiction to deal with matters relating to the Banaban People’s interests and rights in the lands on Banaba Island, which lies within the territorial boundaries of the Republic of Kiribati.
    3. That the Applicant is entitled under Section 25 (1) (a) of the Constitution to access the information as set out in items 7 and 13 of the annexure marked IR12 to the Affidavit in Support.
    4. That the Respondent had contravened the rights of the Applicant guaranteed under Section 25(1)(a) of the Constitution by refusing and/or neglecting to provide the information set out in items 7 and 13 of the annexure marked IR12 to the Affidavit in Support,
    5. The Respondent is ordered to provide the Applicant with access to peruse the information outlined in items 7 and 13 of the annexure marked IR12 to the Affidavit in Support, at the Respondent’s office, within four weeks of this order, at a time and date mutually agreed by the parties.
    6. The Respondent is to pay the costs to the Applicant, which I summarily assess at $2000.


...................................................
Hon. Mr. Justice R. D. R. T. Rajasinghe


At Suva
31ST December 2025


Solicitors:
Fatiaki Law for Applicant
Tikoisuva Law for the Respondent
Attorney Generals Office


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