HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 227 of 2007

FATHER JOSEPH RAKATAU
(Representing the Tikopian people residing on Vanikoro Island)

-v-

VANIKORO LUMBERS LIMITED,
EARTHMOVERS SOLOMONS LIMITED,
COMMISSIONER OF FORESTS (Represented by the Attorney-General),
THE PREMIER (for and on behalf of the Temotu Provincial Executive)

Date of Hearing: 30 July 2007
Date of Ruling: 30 July 2007

P. Tegavota for Plaintiff/Applicant

RULING on ex parte application for interim injunctive orders restraining logging.

REASONS

Brown, J:

1.	The ex parte summons relied upon an affidavit by Father Joseph Rakatau who claimed to represent people of Tikopia residing at Vanikoro Island anxious to stop the 1st and 2nd defendants from continuing to log Vanikoro Island. While annexing a document headed "Minutes of a Timber Rights Hearing Meeting. Buma Village [Vanikoro]"[JK4], Father Joseph alleged his people were excluded from attendance. The argument about JR4 seeks the court to presume the record is not what on its face it says it is. That is, a timber rights hearing. When I read the minutes I am left in no doubt that the minutes are those of a timber rights hearing.

2.	Mr. Tegavota says in relation to JR5, [the letter to the Commissioner of Forests dated 28 December 2004] it acknowledges, in effect the breach of the time requirements set out in the Forest Act. The letter seeks to justify and explains why steps were taken because of the transport difficulties about Vanikoro. The purpose of the Act is to ensure persons likely to be affected have the requisite notice and by virtue of that letter, I am satisfied that notice was adequate and in terms of the Act complied, for it actually exceeded the minimum time allowed on the 16 September following the meeting held on 23 August 2003; the Provincial Executive was at Santa Cruz distant some 300 miles by water from Vanikoro and consequently not easy of access to those at Vanikoro and it determined in accordance with s. 8(3)(b) those able to grant timbers rights on the material before it. There is no merit to that argument.

3.	That Executive decision is susceptible to appeal but a certificate of no appeal dated 31 January 2005 was issued by the appropriate officer. There is then no appeal in terms of s. 10(1) of the Forestry Act. This applicant is clearly out of time if he says he disputes the findings of the Provincial Executive. Over 2 years have passed and his rights have been extinguished by effluxion of time.

4.	I do not propose to consider further argument about the manner in which the timber rights hearing and the subsequent Executive’s decision was made for, as I have shortly shown, the process followed the Act and no appeal was lodged within time.

5.	Mr. Tegavota relies on both affidavits of Father Joseph Rakatau who is of Tikopian descent. The Tikopians have resided on Vanikoro since 1960, well after "Taim faite". His assertions of ownership by occupation are matters which I am sure would be in issue were the matter to proceed to hearing. There is no evidence by the Vanikoro persons named as able to grant timber rights, of any right in these Tikopians of a claim to those rights. That is also apparent from the denial by the Reverend Father of any permission to attend the timber rights hearing.

6.	The issue of locus standi in so far as the timber rights process and grant of logging licence is concerned, cannot arise in these circumstances. The Reverend Father says the Tikopians came to Vanikoro and reside, apparently with the consent of the Vanikoro landowners, and no evidence of relinquishment of landowning rights to the Tikopians is apparent on the affidavits before me. In fact the opposite is the case as I have touched on the refusal of right in the Tikopians to attend the hearing. The time limited to bring proceedings to question the timber rights process has long expired.

7.	Reference to my earlier decision in cc 181/07 cannot help, for in that case those seeking to be let in to argue, were members of clans claiming rights to the land in question. That case may be distinguished on the facts.

8.	Mr. Tegavota says on the sufficient interest test espoused by the Court of Appeal in Gandly Simbe’s case, that the plaintiff has shown by the long term possession of this land at Vanikoro the test has been satisfied. Possession in these circumstances may not afford these outsiders [the Tikopians] rights to argue the logging arrangements agreed to by those nominated to represent landowners under the Forestry Act.

9.	Occupation and possession are different concepts and in custom may give risk to varying rights and obligations amongst the occupiers and owners.

10.	I am not satisfied the plaintiff has standing to come to court to question the validity of the timber process, the logging licences or the logging plan approved by Forestry.

11.	By para’s 14, 15, 16 & 17 of Father Rakatau’s affidavit it is apparent there was a meeting by the Tikopians the logging company and Vanikoro Lumber Ltd represented by John Nabu and Ezekiel Tamoa. There would seem on the material in those paragraphs to have been an agreement reached between the Tikopians and the Vanikoro Lumbers Ltd in relation to parts of the licence area which was not to be logged. That is plain from a reading of para. 17.

12.	On the 28 February it seems Mr. John Nabu resiled from that agreement, an agreement subsequent to the grant of the licence to log particular areas.

13.	It is plain then the plaintiff is also relying on this alleged breach of agreement. That is an issue to be tried.

14.	In the circumstances taking account of the balance of convenience (since the logging arrangements have long been in place) and the apparent absence of standing of the plaintiff in any event, I refuse the application for injunctive orders.

15.	The writ of summons shall proceed in the usual manner by service for there is on the matters which I have raised not-withstanding absence of proper pleading in the statement of claim, an apparent breach of agreement between the plaintiff’s group and the company detailed in the affidavit. The plaintiff may see fit to amend the statement of claim having regard to those allegations in the affidavit, for while the affidavit may be read today it would be proper were the pleadings to be amended to include any breach of agreement so that a defendant may properly plead by way of answer.

16.	The summons of the 13 June 2007 is struck out. The originating process is stayed pending amendment to the statement of claim for the plaintiff’s assertion as landowners is but that and standing has not been established on the pleadings. 

THE COURT