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Greenland Enterprises Ltd v Attorney General [2025] SBHC 13; HCSI-CC 88 of 2024 (11 February 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case 88 of 2024

BETWEEN:

GREENLAND ENTERPRISES LIMITED
Claimant

AND:

ATTORNEY GENERAL
(Representing the Commissioner of Forest Resources)
First Defendant

AND:

PREMIER OF CHOISEUL PROVINCE
(Representing the Choiseul Provincial Executive)
Second Defendant

Date of Hearing: 22^nd January 2025
Date of Ruling: 11^th February 2025

Mr. L. Chite for the Claimant
Mr. J. Devesi for the First and Second Defendants

RULING ON CHAPTER 15 CONFERENCE

AULANGA, PJ:

1. On 6^th November 2024, the Claimant filed a Further Amended Claim for two declaratory orders pertaining to the decision of the First Defendant over a Form 1 document, issued under the Forest Resources and Timber Utilisation Act, as consent for a logging company called Everwind to negotiate with the Second Defendant and landowners of Robroy Island to enter into timber rights for logging operations in Robroy Island in Choiseul Province.
2. The first declaratory order is to nullify the Form 1 application lodged respectively by Everwind in January 2024 and revalidated in June 2024 and second, to quash the decision of the First Defendant in the issuing of the Form 1 document to the Second Defendant to facilitate the timber rights acquisition process between the landowners of Robroy Island and Everwind.
3. Briefly, at the time of this hearing, there is a pending appeal in the Court of Appeal in CAC No. 2/2024 regarding a timber rights determination over the same Robroy Island between the Claimant and some members of Robroy. That determination was made by the Choiseul Provincial Executive (“CPE”) on 17^th March 2021, endorsing only a portion of the Robroy Island for logging operations. It was appealed to the Western Customary Land Appeal Court registered as: WCLAC 2/2021, 3/2021 and 4/2021. The WCLAC set aside the CPE determination. The Claimant and its landowners then brought the matter on judicial review to the High Court in HCSI CC No. 515/2021. The High Court matter was somehow withdrawn by two rogued landowners which eventually resulted in the discontinuance of the matter. The appeal in CAC No. 2/2024 which is pending before the Court of Appeal is in relation to the High Court’s decision in HCSI CC No. 515/2021.
4. Like in all conference hearings, also known as Chapter 15 Conference hearing, it is a requirement under Rule 15.3.16 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (“Rule”) that, as soon as practicable after the defence has been filed and served, the court must call for a conference. At this conference, the court is required under Rule 15.3.18 to be satisfied as to the four matters before it can hear the claim. In other words, the court will dismiss the claim unless it is satisfied with these four matters namely;
   • (a) the claimant has an arguable case;
   • (b) the claimant is directly affected by the subject matter of the claim;
   • (c) there has been no undue delay in making the claim; and
   • (d) there is no other remedy that resolves the matter fully and directly.
5. In Bavare v Nerapa [2011] SBCA 22, the court held that if all the matters required in Rule 15.3.18 are not satisfied, the claim will inevitably be dismissed without trial.
6. In submissions, both counsels have addressed this court on a number of issues surrounding those four matters. I have considered those submissions. In my view, I am satisfied that the claim has satisfied the matters or conditions in (a) to (c). That is for condition (a), there is an arguable case, namely, the processing of another timber rights application and the giving of consent in the Form 1 document by the First Defendant over the Robroy Island while the unresolved timber rights determination is still pending before the Court of Appeal.
7. Counsel Devesi for the First and Second Defendants submits that the appeal in CAC No. 2/2024 only concerns the notice of discontinuance and not the substance of the matter. That submission is not entirely correct. If the appeal is successful, the outcome will render the continuity of the High Court matter for full determination of the unresolved timber rights dispute over the Robroy Island. The converse will also occur if it is not successful. As such, it raises a potential duplication of the timber rights process over the Robroy Island which in itself is an arguable case. Whether the Claimant can pursue this matter at this court or in another tribunal, is another matter subjective to the findings in Rule 15. 3.18 (d).
8. There is also no dispute that as a result of the action of the First Defendant, the Claimant, as one of the parties that signed an agreement with the landowners for the timber rights over Robroy Island in that unresolved court matter, is directly affected by the subject matter of this proceeding. This has satisfied condition (b).
9. I am also satisfied that there is no undue delay in the making and filing of the claim. The claim was filed well within time as required for filing of a judicial review proceeding. Counsel Devesi did not dispute this aspect of the case and accordingly, condition (c) has been satisfied by consensus.
10. In relation to the last matter or condition (d) on whether there is no other remedy available to resolve the matter fully and directly, counsel Chite submits that only the High Court has the inherent power to overturn the decision of the First Defendant through this proceeding. Counsel relies on the purported lawfulness of the First Defendant’s decision in entertaining the Everwind application for the timber rights over the Robroy Island and the issuing of the Form 1 document to the Second Defendant in the light of the pending appeal in CAC No. 2/2024 as being the basis that only this court has jurisdiction to intervene. Counsel further refers to the case of Peroshma Land Purchase Co-Op Society v Attorney General [2023] SBHC 85 to support his submission. In that Peroshma case, the High Court held that there was a Land Board established under the Land and Titles Act to deal with the claim brought by the claimant as opposed to pursuing a judicial review claim. The claim was dismissed since the matters required in Rule 15. 3.18 (a) and (d) were not satisfied.
11. Counsel Chite continues to submit that before the interim injunction was granted in this proceeding, the First Defendant had forwarded the Form 1 document to the Second Defendant to proceed with scheduling of the timber rights public hearing. That somehow did not eventuate as a result of the court’s intervention through the interim injunctive orders and for that reason, counsel submits that there is no alternative remedy to resolve the matter except for this court.
12. The overall tenor of his submission, as I understood it, is that the First Defendant commits an error of law when it accepted the Everwind’s application for timber rights and the eventual granting of the Form 1 document to the Second Defendant to commence the timber rights acquisition process with the other parties over the Robroy Island. That was done despite the pending appeal in CAC No. 2/2024 that should be corrected by way of judicial review. Unfortunately, I cannot agree with this submission. The issue at this stage of this hearing is not whether the First Defendant has erred in accepting Everwind’s application for timber rights and the eventual granting of the approval in the Form 1 document to the Second Defendant to commence the timber rights acquisition process with the other parties for the Robroy Island despite the pending appeal in CAC No. 2/2024. The issue here is whether the Claimant has another remedy available to resolve its grievance or claim as required under Rule 15.3.18 (d).
13. For this issue, it is my view that there is still a process for raising an objection against the grant of a new timber rights over the Robroy Island that the Claimant can utilise under section 8 (3) of the Forest Resources and Timber Utilisation Act (Cap. 40). Under section 8 (3), issues regarding whether the resource owners or interested persons are willing to enter into negotiation for the disposal of their timber rights as a result of the pending timber rights determination before the Court of Appeal can be raised to the Second Defendant for determination. The Second Defendant can then consider whether or not it is proper to grant the timber rights over the Robroy Island. Any appeal against that determination can be lodged to the customary land appeal court as provided under section 10 (1) of the Forest Resources and Timber Utilisation Act. In that regard, I am not satisfied that no other remedy is available to resolve the matter fully and directly. Consequently, it must mean that Rule 15.3.18 (d) has not been satisfied.
14. The judicial review claim herein is dismissed with costs against the Claimant on a standard basis, to be taxed if not agreed.

Orders of the Court

1. The claim does not fully satisfy Rule 15.3.18 of the Solomon Islands Courts (Civil Procedure) Rules 2007 and is dismissed.
2. Costs to be paid to the First and Second Defendants on standard basis, to be taxed if not agreed.

THE COURT
Hon. Justice Augustine S Aulanga
PUISNE JUDGE