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Lauhana v Attorney General [2024] SBHC 164; HCSI-CC 8 of 2022 (4 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 8 of 2022

BETWEEN:

SIMONINA LAUHANA, ELIA LAUHANA, PETER KUTU and JAE GODLYN
(representing themselves and members of Kakau-Roha Tribe of Tandai, Guadalcanal Province)
Claimants

AND:

ATTORNEY GENERAL
(representing the Minister of Mines, Energy and Rural Electrification)
First Defendant

AND:

SOLOMON ISLANDS WATER AUTHORITY
Second Defendant

Date of Hearing: 1 August &9 September 2024
Date of Decision: 4 November 2024

Mr John Taupongi for the Claimants
Mr Nickson Ofanakwai for the First Defendant
Mr Andrew Radclyffe for the Second Defendant

JUDGMENT

1. The issue in this proceeding emanated from a declaration by the Minister of Mines, Energy and Rural Electrification pursuant to LN 42/1995. The Claimants commenced this proceeding for a determination that the Regulation only applies to the area between the new water pump in parcel number 191-064-1 and the old water pump near White River suburb.
2. It is further their position that the customary lands situated to the south of Kongulai including Tabuti, Matagugulu, Ora, Tavulaha, Tamuni, Tohodani, Poitaoa, Poipipi, Tolugo, Tangituga and Manuhasi (the disputed lands) are not affected by the declaration. The summary of their case is that the disputed lands are outside of the White River catchment area. They therefore are entitled to use the disputed lands without any interference from the Attorney General and Solomon Island Water Authority (SIWA). The Claimants claim damages from them for trespass and for their alleged interferences.
3. The Attorney General and SIWA deny their claim. They are jointly of the view that the disputed lands are part and partial of the White River Catchment Area. They therefore have the right to restrain the Claimants and members of their tribe to enter the catchment area including the alleged disputed lands and conduct activities that would prejudice and cause the water supply to Honiara residents unsafe.
4. I have perused the Claimants’ claim. There are several declaratory orders sought. It also contains relief for injunction and consequently compensation. They also claim damages for trespass. A consequential relief sought is that if the legal notice covers the disputed lands, it does not extinguish the customary rights of the Claimants.
5. Having said that, I am of the view that the crucial issue for me to determine first and foremost is whether or not LN 42/1995 of the Solomon Islands Water Authority (Catchment Areas) Regulations included the disputed lands.

The Claimants case

6. The only evidence that was adduced by the Claimants in support of their claim are the sworn statements of Ms Simonina Lauhana. They can be found on pages 19 to 142 and pages 156 to 163 of the court book. She also appeared in court to be cross-examined upon her sworn statements.
7. There is no issue that the Commissioner of Lands has a lease over parcel number 191-064-1. An old water pump was initially constructed in the 1970s by the Water Unit. She is aware that from about 1983, the COL registered and holds a lease on behalf of Water Unit. Around that period of time, a new water pump was constructed on the land at a place named Vuratapiu. That facility was used by Water Unit to supply water to Honiara city.
8. In 1992, the SIWA Act was enacted. The Water Unit was abolished and SIWA was created and took over the functions of Water Unit. In 1995, the First Defendant made the SIWA Regulations. It was published in the Gazette on 28 May 1995 as Legal Notice 42/1995. Under the regulations, certain activities were prohibited to be carried out in any water catchment area.
9. The current dispute came into being from the above declaration. The effect of the regulation is that members of her tribe can no longer use and enjoy their rights over the disputed lands. Those lands had become part of the White River catchment area. Ms Lauhana says that they were not informed of the existence of the regulation. They were not consulted by the Attorney General and SIWA before and after the regulation was enacted. They only became aware of its existence when their use of the disputed lands was restricted in about 2019 and made enquiries.
10. Even with their enquiries, they are still of the view that the disputed lands are outside of the White River Catchment Area. They say that the Attorney General through the Minister responsible did not by order made, the declaration in LN 42/1995 and is invalid.
11. They say that they have used and enjoyed benefits from the lands without interference from SIWA and the Attorney General since the construction of the old water pump by the Water Unit. In previous years from the 1980s, they have even conducted logging and other commercial activities therein. They have benefitted from those activities.
12. They say that their use of the disputed lands only became an issue to SIWA in about 2019. As a result, their intended commercial ventures have ceased subsequent to unresolved issues between them. Thereafter restraining orders were made against them and they have suffered loss of income and damages.
13. They further say that if the declaration in LN 42/1995 is effective, then they must be paid compensation for SIWA’s use of the disputed lands since the date of the making of the said declaration. In summary therefore, it is the Claimants case that the orders sought in their claim should be granted with cost.
14. At this juncture, it must be noted that Mr Taupongi of counsel for the Claimants did not file any closing submissions as directed. He was also not present in court to make oral submission on the date scheduled. He informed the Registrar that he was sick and was also on compassionate leave. I proceeded to hear submissions on the ground that Mr Taupongi has not complied with my direction for the filing of closing submission. He gave no reason for non-compliance of my orders.

The position of the Attorney General

15. The Attorney General’s case is that the orders sought by the Claimants should be dismissed with cost. In their defence they admitted that no order was made in respect of LN 42/1995. Nonetheless, it is their case that the Minister’s declaration in the River Waters (Mataniko and White River) Order in LN 146/1967 and the Schedule applies.
16. Regulation 3 of LN 146/1967 expressly states: - ‘Except to the extent that its operation is limited to a controlled catchment area, this part applies to all catchment areas or parts thereof including the areas identified in the Schedule’.
17. They further say that pursuant to the Schedule, White River is part of the list of the Spring Source Catchments. The Schedule to the Minister’s stated declaration in LN 146/1967, also defines and provides the coordinates of the boundary of White River Catchment upon plan number 1470 deposited in the office of the Commissioner of Lands.
18. That plan is attached to the sworn statement of Scravin Tongi as exhibit ‘ST1’. That plan delineated the whole of the Mataniko and White River Catchment Areas as per LN 146/1967. It is therefore the case for the Attorney General that the plan exhibited as ‘ST1” was not challenged in cross-examination by the Claimants. It should therefore be taken as the only evidence depicting the boundary of the White River Catchment Area. From the plan, it can be seen to have included the disputed lands.
19. In summary therefore, the Attorney General says that the Claimants have not made out their case to the required standard and the proceedings must be dismissed with cost.

The position of SIWA

20. SIWA’s argument basically is the Claimants have failed to prove their case on the balance of probabilities and therefore they are not entitled to any of the reliefs sought.
21. The only evidence adduced in support of the Claimants claim are the two sworn statements of Ms Lauhana. Certain matters deposed to her sworn statements occurred when she was a child or a very young woman. The matters deposed to could not have meant much to her during such periods in time.
22. She is also a person that is only able to read and understand a little of the English language. The sworn statements are made in English. Having told the court in cross-examination that she can only read and understand a little English, it is SIWA’s case that her evidence must be treated with caution. In any event, the evidence adduced is of no assistance to their case.
23. It is also their case, that their evidence was unchallenged during trial. Their witness Mr Tongi was not cross-examined. The plan exhibited in his sworn statement is therefore unchallenged. The disputed land are partly within the red edged lines in the plan.
24. It is further their case that SIWA did not raise issues about the Claimants intension into the catchment area before 2019 as those activities did not have serious effects on what they are required to do under statute. They imminent closure of the water pumps were becoming regular because of light turbidity and the continuous supply of safe and clean water to Honiara City was affected.
25. In view of their position as discussed above, the reliefs sought by the claimants are not proved to the required standard and must be dismissed.

Discussion

26. As discussed above, this proceeding emanated from the declaration by the Minister responsible in LN 42/1995. They allege that the declaration has extended the White River Catchment Area and could be seen to have included the disputed lands without their knowledge.
27. From the defences and the supporting sworn statements of the Attorney General and SIWA, it is obvious that the disputed lands were in effect included in LN 146/1967. I am of that view because the delineation of Mataniko and White River Catchment Areas was made way back in 1967. The Claimants did not make or raise any issue of the delineation of the plan and the affected areas including the disputed lands.
28. What LN 42/1995 did was merely to prescribe restricted activities within the catchment areas. It also provide for application for permits by individuals or interested persons to use portions of the catchment area. The boundary depicted in plan number 1470 was never changed nor was it extended from 1967 onward.
29. In light of the above, the challenge by the Claimants regarding LN 42/1995 is misconceived and bears no relevance to their claim. The legal notice which would have been relevant to their complaint was LN 146/1967. That order was made in 1967, some 57 years ago. How could a challenge be made at present with that delay. The provisions of the Limitation Act (cap 18) becomes relevant here. They are time barred from bringing any claim now.
30. During trial, I have noted that Ms Lauhana’s age is 58 years. In 1967, she would have been about one (1) year old. Her predecessors had never complained nor raised any issue on LN 146/1967. In fact absolutely nothing was done until now.
31. I have also noted during trial that she can only read a little English when she was cross-examined. Her sworn statement are very lengthy and are both inscribed in the English language. It could have been prudent if counsel or the witnessing officer had used rule 4.16 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
32. I have further noted the some of her sworn statements are very technical. It is possible that she could not have fully understood and or fully comprehend what the sworn statements are referring to.
33. It is essential during trial that I must be satisfied with the evidence adduced on the balance. Having heard Ms Lauhana in court giving oral evidence and having noted the contents of her sworn statements, I am not satisfied that she could have fully understood what is deposed to in her sworn statements. I am further not satisfied that the Claimants have proved their claim on the balance of probabilities.
34. The issue of an application for a permit could also be relevant here. There is provision for an application for a permit under LN 42/1995. If the Claimants have a genuine claim for development for the benefit of their tribal members, why have they not applied for a permit from SIWA. Their interests could have been resolved amicably through negotiations. They did not take up that option but had opted to challenge the validity of the Regulations.
35. In any event, the Regulation and all other legal documents are public documents. They could be readily assessable for public information and use. They also have not utilised that.
36. In view of my discussions above, I am not satisfied that the Claimants have proved their case on the balance of probabilities. The claim is hereby dismissed with cost. I hereby order.

THE COURT
Justice Maelyn Bird
Puisne Judge