HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 245 of 2002

ALEX LOKOPIO RINGI AND JAMES KAMASAE
(On behalf of the Buti Podokana Lio Tribe)

-v-

J P ENTERPRISES LIMITED,
LETIPIKO BALESI (representing Nono Tribe) and
OCEANIA TRADING COMPANY

Honiara: Brown PJ

Date of Hearing: 1st May 2003
Date of Judgment: May 2003

Bridge Lawyers for the Plaintiff
PT Legal Services for 1st Defendant

Ruling

On the 28th October 2002, by consent of the then parties, (the plaintiff and J P Enterprises Ltd) my brother judge, Kabui PJ, made orders excluding Buti land from logging operations and ordered the defendant to account for the logs felled on that land.

The plaintiff now seeks similar orders in respect of Podokana and Lio land.

In support of his summons filed on the 24th January 2003, he read his original affidavit filed on the 17th October 2002, and his affidavits of the 24th January and the 1st April 2003. The defendants object to the orders sought. Since this Court’s order of the 28th October last, the Nono Tribe and the Oceania Trading Company have been included as defendants. The Nono tribe has obtained a felling licence in respect of Nono land, but the plaintiff argued that the description of land in the Forestry Agreement incorrectly included land known as Buti, Lio & Podokana, but that since the plaintiff had reasonable expectations that the Commissioner of Lands would correct the Agreement and felling licence issued to the defendants, the plaintiff delayed seeking the exclusion of the other two parcels Lio and Podokana from the logging licence, until now.

On the sworn testimony of Alex Likopio Ringi, whose affidavits were read, I am satisfied that the plaintiff has raised an arguable case for exclusion of these other two land blocks and that the balance of convenience requires this courts order to prevent logging on this land. If logging has commenced, then it should cease.

Since no undertaking as to damages were sought or obtained in the initial interlocutory proceedings, I do not require one at this juncture. I do not however, propose to order an account of timber, if any, taken from the two blocks, Lio & Podokana for there is no evidence that removal has commenced.

The defendants successfully showed that the negotiations between these parties have been clouded by difficulties and tarnished by landholders falling out over the benefits to be realized by this Forestry Agreement, but nevertheless, I am satisfied that the tribal meetings have supported Mr. A. Lokopio Ringi’s attempt to exclude this land from logging, even despite members of this tribes actions in siding with the logging company. The tribal decision must be given paramount consideration. 

Whether it accords with the wishes of all, from time to time is not the point, rather when duly convened, the tribe’s decision should stand until properly varied at a later meeting. It is the variability of these decisions which no doubt annoys the loggers who seek continuity, to progress their work, but this irresolution is the product of the democratic tribal process.

The plaintiffs have shown, however, a case for judicial review of the Forestry Agreement grant, for if, as alleged, due process in properly publishing the intention to log specific areas was not followed, then this Court may be obliged to intervene and find the Agreement fatally flawed, with consequences to all, not only these plaintiffs. For all these reasons, (and when the very Forestry Agreement itself may fail, so damages may not be an available remedy) I make orders including Lio & Podokana land in the interlocutory injunction preventing the defendants from logging or carrying away timber logged to date. 

The boundaries of Lio and Podokana land are commonly known, for these blocks were particularly named in the Forestry Licence to fell trees and remove timber under S.5 of the Act, No.A10102 dated 2nd July 2001.

[N.B. I should say that when I saw that an interim order had been made by my brother judge, I asked counsel whether they had objection to my dealing with the case. Since no objection was raised and the matters were separate parcels from that land the subject of the earlier decision, I proceeded to hear the case]

The cause appears ready for hearing. The defendants have filed affidavits in reply. If the Forestry Agreement is to be struck down after judicial review, it were best if it was to be done sooner, to lesson the impact on the logging company and the other defendants who, at this juncture, feel they have the Act to rely upon. If the judicial review fails, then intertribal argument must be expected.

Order

The 1st, 2nd and 3rd defendants, their contractors, servants or agents are hereby restrained from entering upon Podokana and Lio land for the purposes of logging or associated operations until further order.

The costs of this application shall be costs in the cause.

PUISNE JUDGE BROWN