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Bresmana v Isabel Provincial Executive [2015] SBCLAC 1; CLAC App 07 of 2011 (23 April 2015)

IN THE ISABEL CUSTOMARY )
LAND APPEAL COURT

CLAC App. Case No: 07 of 2011

Timber Right Appellant Jurisdiction

IN THE MATTER OF:
THE FOREST RESOURCES AND TIMBER UTILISATION ACT [CAP 40]

AND:

THE FOREST RESOURCES AND TIMBER UTILISATION [APPEALS] REGULATIONLN 22/1905

IN THE MATTER OF:

ESI CUSTOMARY LAND TIMBER RIGHT APPEAL

BETWEEN:

ISMAEL BRESAMANA & OTHERS
Appellants

AND:

ISABEL PROVINCIAL EXECUTIVE
1st Respondent

PATTESON KHANA for Kefu tribe
2nd Respondents

AND

CASPER TANORONGO for Pau tribe
3rd Respondents

JUDGMENT

Introduction

1. This is a timber right appeal filed from the decision of the Isabel Provincial Executive (IPE) over ESI customary land timber rights. The timber right hearing on that said customary land was held on the 3rd of June 2011 at Galatha village, Hograno district in the Isabel Province, and the IPE determination was delivered on 6th day of June 2011.
   
2. All parties to this CLAC sitting were served by way of notice to attend the hearing at Buala Police station court house on the 22nd of April 2014 without failed. In responding upon the notice, both parties appear.
   
3. On preliminary hearing, parties to the hearing are represented as follows:
   
   • - Ishmael BRESAMANA standing for the Appellants,
   • - Dadley VUNAGI stands for Isabel Provincial Executive (IPE) as the 1st Respondent,
   • - Patteson KHANA for Kefu tribe, as 2nd Respondent,
   • - Casper Tanorongo standing for Pau tribe, as 3rd Respondent and,
   • - Jeremiah MUKURU for Kome tribe as 4th Respondent.
     

Brief history of this case

4. On the 3rd day of June 2011, a public hearing was held at Galatha village, Hograno district in the Isabel Province where the ISbel Provincial Executive (IPE) has undertaking to determined over an application made by ESI land holding group to negotiate Timber Rights over a portion of land referred to as ESI customary land under section 7 of the Forest Resources and Timber Utilisation Act (FRTUA).
   
5. The IPE has determined and rejected the application on the basis that the application was objected by a member of the Esi tribe, and it indicated in the map displayed with the application that the concession was encroached into customary land claimed by other tribes like Pau tribe, Kefu tribe and Nakmerufnei tribe. The IPE has recommended to the Commissioner of Forest on this rejection pursuant to section 9 (1) of the Forest Resources Timber Utilisation Act (FRTUA)
   
6. From that determination, the Applicant was aggrieved and filed an appeal to the Isabel Customary Land Appeal Court (ICLAC) in accordance to section 10(1) of the FRTUA, where "Any person who is aggrieved by the determination of the council made under section 8(3)(b) or (c) may, within one month from the date public notice was given in the manner set out in section 9(2)(b), appeal to the customary land appeal court having jurisdiction for the area in which the customary land concerned is situated and such court shall hear and determine the appeal.
   

Ground of Appeal

The Isabel Provincial Executive is wrong to fully object and defeated the appellant's application based on one objector who is a member of Esi tribe, and boundary issues which can resolve among the Esi tribe and the other landowners.

The IPE determination did not reflect their findings.

7. Mr Ismael BRESMANA on behalf of the ESI tribe submits that the ownership of Esi customary land remain on the tribe alone. The undertaking on the proposal was a collective agreement from the entire members of the Esi tribe. He further submitted that the Esi tribe has been consulting its own people before submitting their application to the IPE.
   
8. In his oral and written submission, he further contended that during the timber right hearing on the 3rd of June 2011, the only issue raised by the objectors from other tribes is based on boundaries. He confirmed that he had resubmitted the map and identified the demarcation of disputed boundaries with Kefu tribe, Pau tribe and so forth. There was no indication to suggest that Esi tribe owns or claims to own part of Pau tribe, Kefu tribe and other tribes' portion of land.
   
9. Another issue which IPE has based their determination is the objection raised by John Mark LOMUKANA a member of the ESI tribe. His objection is based on the size of the Esi concession. We submit that it is for the Esi tribe land holding group to decide on it. Whether to accept the proposal or reject it. However, the Esi tribe land holding group agrees to pursue on their proposal for logging operation on their portion of land restricted to Esi customary land.
   
10. In responding to the appeal Mr Dudley Vunagi who appears on behalf of the Isabel Provincial Executive read from a written submission prepared by John Mark LOKUMANA the acting provincial secretary. Mr LOKUMANA is one of the objectors in the timber right hearing and he is a member of the Esi tribe. In his submission, he confirmed the determination of IPE as in the minutes available in court.
    
11. The second Respondent contested and response on behalf of the Kefu tribe. In his submission Mr Patteson KANA has confirmed the basis of the IPE determination. He basically support the IPE determination is on the basis that the map displayed with the public notice was defeated as the boundary shown has encroached into customary land also claimed by other tribes including Kefu tribe. He further contested that the appeal ground submitted by the Appellants is a gross misunderstanding and misinterpretation of the IPE determination.
    
12. Mr Casper TANORONGO who speaks on behalf of Pau tribe submits as the 3rd Respondent in this appeal. He was speaking from a written submission. In his submission he confirmed the issues rose during the timber right hearing on the 3rd of June 2011. He further confirmed that his tribe objects the application based on boundary issues. On cross examination he agrees that he has no objection if Esi tribe would restrict or confine to their original boundaries.
    
13. One of the Respondent who was not in the record of appeal book, however, appearing as representative of Khome tribe. In his oral brief, he indicated that he did not attend the timber right on the 3rd of June 2011. His intention to appear before this court is to indicate that the Khome tribe had disputed the boundary on Tuape River on the western end of the land in question. On cross examination, he agrees that he has no objection has the concession of Esi tribe restricted to their own land boundary.
    
14. After a careful consideration given to all submission from both parties, the court concluded on the following:
    
    • - The issues raised in the timber right do not reflect the final determination of the Isabel Provincial Executive to advice the commissioner of forest and object the application.
      
    • - Both objectors except for the provincial executive representative were agree during cross examination that they do not object to the proposal logging project of Esi tribe if their boundary is demarcate out from their proposed concession. This has indicates that the objectors did not object the application however, they disputes the boundary line indicated in the map.
      
15. Base on the above findings, this court is of the view that the appeal is granted and makes the following order.
    
    1. The appeal is granted,
    2. The IPE determination on 6th of June 2011 is set-aside
    3. Appraisal; that Ismael BRESAMANA, Gregory PITA and the Esi land owning group to proceed with logging proposal within their land boundaries.
       
       • - Proper consultation among the Esi tribe,
       • - Exclude land boundaries own by Kefu tribe, Pau tirbe and Khome tribe.
         
    4. We decline to make any order as to cost.
       

Right of appeal is extended

Decision was verbally pronounce on the 23rd of April 2014, written judgment was made available on dated 9th of May 2014.

Signed: