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Leketo v Kulasaru [2013] SBCLAC 1; CLAC27.2013 (4 October 2013)

IN THE WESTERN CUSTOMARY
LAND APPEAL COURT

CLAC No: 27 of 2013

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: MAMALA CUSTOMARY LAND TIMBER RIGHT APPEAL

BETWEEN:

CHIEF LEO LEKETO & OTHERS
Appellants

AND:

JEFFERY KULASARU
ROMANO ZESAPA & OTHERS
Respondents

JUDGMENT

Introduction

1. This is a timber right appeal filed against the decision of the Choiseul Provincial Executive (CPE) over MAMALA customary land timber rights hearing held on the 3rd day of May 2013 at Taro sub-station.
   
2. On preliminary hearing, the Appellants party was represented by Chief Leo LEKETO as spokesperson, and Jeffery KULASAU who represent the respondent's party as their spokesperson.
   
3. All parties to this CLAC sitting were served by way of notice to attend the hearing at Gizo magistrates' court on the 3rd of October 2013 without failed. In responding upon the notice, both parties appear.
   

Brief history of this case

4. On the 3rd day of May 2013, a public hearing was held at Taro sub-station where the Choiseul Provincial Executive (CPE) has undertaking to determine over an application made by Delta Timber Company to negotiate Timber Rights over a portion of land referred to as MAMALA customary land under section 7 of the Forest Resources and Timber Utilisation Act (FRTUA).
   
5. The CPE has determined and granted timber rights to the so called Mamala tribe represented by Rence PIRUKANA, Chief Charlie NASUKANA and other members as the right people to grant timber right over Mamala customary land.
   
6. From that determination, the objectors during the Timber Rights, filed an appeal to the CLAC (Western) 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.
   

Grounds of Appeal

Ground 1.

The Choiseul Provincial Executives is erred to identify the person in their Form II determination as the persons entitled to grant timber right over the purported Mamala customary land.

7. Chief Leo LEKETO on behalf of the Bapoqo tribes submits that the members of the Virusipa and Bapoqo clan of Bakobangara tribes have their share over the portion of land claimed as Mamala customary land. They did not agree or willing to negotiate their resources to the applicant, the Delta Timber limited. He further claimed that the people whose name appeared in the Form II have no right to grant timber right over their land. The land purported to be Mamala is not the portion of mamala, however, the portion of land demarcated was Bakobangara customary land mother land.
   
8. The appellant claimed that his party raised their objection during the timber right held at Taro sub-station. However, the CPE refused to consider their objection.
   
9. Another point raised by the appellant to support his contention is that there have been three consecutive timber rights over the same portion of land, which he had objected to it on the same ground. The first timber right in 2003 was not granted, another timber right in 2006 was not granted. In 2013, the timber right was granted despite his submission on the same objection history over the same portion of land.
   
10. In responding to the appeal ground one, Mr Rence PIRUKANA for the respondent contested that he did not know any tribe known as Bapoqo tribe. He urged the court to look at the CPE minutes on page 7. He further claimed that the appellants are not members of Bakobagara tribe as shown in the genealogy at page 3 of the Choiseul Provincial Executive minutes.
    
11. Mr PIRUKANA further submits to the court that after the Timber right hearing, the appellant undertaking and refers the land matter to the Ririo House of Chief sitting to determine over the portion of the subjected land. The outcome of the Chief hearing was in favour of his tribe.
    
12. Both parties were given opportunity to proceed on cross examination process, which the CLAC panel asking questions to the representatives of the parties.
    
13. The court has the opportunity assess the whole process of the representation from both parties, and opportunity to assess the minutes of the Timber right held on the 3rd of May 2013. After considering the evidences from both parties, the court concluded on the following findings.
    
    • - These are the questions that the court normally ask on timber right cases, that whether or not the provincial government is erred to grant timber right to the respondent, or
    • - Whether or not the people who grant timber right are the right person?
    • - Whether or not the Provincial Executive is error to accept any claim of right which are not in accordance to the provisions under section 9 of FRTUA.
      
14. After considering the whole weight of evidence and reasoning submitted by both parties, the court is satisfied that the Choiseul Provincial is erred in law to determine and grants timber right over a land or resources that claim of right is in question.
    
15. The evidence reveals from both parties, are as follows:
    
    • - The Appellant submits that they have claim of right on some portions on the land which was claimed to be Mamala customary land.
    • - The tribe they belong is one of the tribe within the perimeters of Mamala land or Bakobangara customary land, which is the mother land. The Bapoqo clan is an existing clan within the Bakobangara tribe.
    • - The respondent denies that there is no such clan as Bapoqo existence within Mamala tribe or Bakobangara tribe.
    • - Both submissions were confirmed in the Timber right minutes.
      
16. In cross examination process, both parties confirmed that they were related or blood related. Both parties agree in principal that there is possibility to settle this dispute on other customary means of settlement.
    
17. The court could not able to consider the determination of the House of Chief since it was made after the CPE determination.
    
18. The appellant has submitted five grounds of appeal in support of his summary submission. The court has considered dealing with as a single ground of appeal that would determine the whole subject of the appeal.
    

Conclusion

19. Base on the above findings, this court is of the view that the appeal is granted on the bases that the land in question has claimed equally by both parties. This court is not considering who lawfully owns the land; however, the court is considering the right people to grant timber rights over this purported Mamala customary land. When accessing the whole evidence of this appeal, the court has concluded that the CPE is erred to grant timber right over a portion of land which was lawfully claimed by parties. The element of denial of tribes and clans is very sufficient when considering who the right people to grant timber right. In this case, the court is satisfied that both the appellants and the respondents are blood related.
    
20. The court grant the appeal and ordered as follows:
    
    1. The appeal is granted,
    2. The WPE determination on 12 of June 2013 is set-aside
    3. Afresh; that both parties to proceed further on customary means of settlement before venturing on logging operation.
    4. We decline to make any order as to cost.
       

Right of appeal is extended

Decision was verbally pronounce on the 4th day of October 2013, written judgment delivered and make available on dated 15th day of November 2013.

Signed: