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Alevangana v Kegu [2012] SBHC 1; HCSI-CC 466 of 2011 (23 January 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 466 of 2011

BETWEEN

JOHN ALEVANGANA and HENRY HIDI KAMA
(Representing the Ratadonga land holding group)
Claimants

And

JACK KEGU, WARREN QIRI and JOHN NGORO
First Defendants

And

BULACAN INTERGRATED WOODS INDUSTRY
(SI) COMPANY LIMITED
Second Defendant

Mr Keniapisia for the Claimants
Mr Tegavota for the First and Second Defendants

Date of Hearing: 14th December 2011
Date of Judgment: 23rd January 2012

Reasons for refusal to grant interim injunction

1. A Claim was filed on 24th November 2011. Briefly, the Statement of Case avers the Claimants are the Customary landowners of Reregana Island in Roviana lagoon, Western Province. It is said the First and Second Defendants have carried out logging on the island when they have no right to do so and without obtaining a Development Consent pursuant to the Environment Act 1998. The Claimants have been granted a special permit under section 4(1)(c) of the Forest Resources and Timber Utilisation Act [Cap. 40] ("the Act"). The Claimants say they have the benefit of a decision by the Roviana House of Chiefs that the island of Reregana is owned by the Ratadonga tribes.

2. It is perhaps worth remembering the words of the Court of Appeal from the well known and often cited case of Gandly Simbe;

Timber is, for the Solomon Islands, a vital resource, in the exploitation of which both the national and provincial governments as well as the customary landowners and the logging companies all have interests, which are nevertheless not necessarily or always congruent. Part IIA involves an attempt to ensure that the landowners, who ordinarily reside and depend for their subsistence on the land in question, are adequately consulted and that their wishes are accorded priority. Logging may not take place without obtaining their agreement to the entry, felling and removal of the timber. Authority to exercise rights of that kind is, as already mentioned, conferred not by the licence issued by the Commissioner under s.5(1A) but only by an "approved agreement", which by s.5A means an agreement approved under the provisions of Part IIA. See Qurusu v. Attorney-General CC 4/93 [87]; and Cape Esperance Company Ltd. v. Emery & Sullivan (1995) (CA 7/1994).

The process under Part III of the Act is comprehensive, somewhat complex, but even it cannot guarantee adequate consultation and an end to disputes. When logging is carried out under the authority of a declaration made by the Minister of Forests pursuant to section 4(1)(c) of the Act the complex process under Part III is by-passed. I am not being asked by any of the parties in this case to review the Minister's decision and so I will simply make the observation that a declaration under the section covering a large area of customary land seems almost certain to lead to disputes.

3. In this case the Claimants asked, by an application dated 24th November 2011, for an interim injunction. The application was accompanied by a certificate of urgency and an undertaking as to damages. It first came before the court on 30th November. Mr Tegavota appeared for the Defendants on very short notice. An interim order was made in respect of the proceeds of sale of some 2000 cubic metres of timber and the application was adjourned for a full inter-parties hearing to 6th December. In the short time between hearings a sworn statement was filed on behalf of the Defendants. As a result the application had to be adjourned to allow detailed instructions to be obtained from the Claimants. The interim order continued. The matter came back into court on 14th December. After detailed argument was heard the order asked for was refused and the interim order discharged. I said I would give full written reasons.

4. It is apparent from the evidence the land subject to the Minister's declaration comprised three islands, Reregana, Honiavasa and Kosianae. These are not tiny islands, they cover quite an extensive area. There were differences of opinion and difficulties right from an early stage. The original letter of "approval" dated 27th April 2011 from the Commissioner of Forests was deemed to be defective. Why it was thought the Commissioner needed to grant approval is not clear, section 4(1)(c) refers only to the Minister. In any event a "new" approval was issued in August. Prior to that, some landowners entered into a "Memorandum of Agreement for the Sale of Timber Rights in Customary Land" [1] with the Second Defendant. Of course it was nothing of the sort, in order for there to be timber rights to sell the process under Part III would first need to be completed. At best it could only have been a contract between the landowners and the Second Defendants for the Second Defendants to carry out logging operations. By the time the "new" approval was sent out there was a clear difference of opinion amongst the landowners as some did not want the Second Defendant involved. They entered into an agreement with another company, Pacific United Ltd [2]. This followed a meeting held, apparently, at Baraulu village on 17th August. At the meeting it is said there was agreement that the Second Defendant would log all of Kosianae Island and half of Honiavasa and Pacific United Ltd would log all of Reregana and the other half of Honiavasa.

5. Despite the agreement, on 4th October the Second Defendants were invited onto parts of Reregana Islands. What happened is best explained by the letter dated 8th October 2011 from Kelwin Roy a Principal Forester (Operations) based at Munda [3]. He, together with some police officers, went to see what the problem was. He was told that logs felled by Pacific United Ltd had been skidded by the Second Defendant. He went to the "...area concerned or boundary, and there we saw Bulacan supporters or security (50 plus people) with their machines, skidding logs (sic) been felled by Pacific United chainsaw operators. When we arrived at the boundary or disputed area, Bulacan supporters started to throw stones at us.....". A meeting was held on 12th October. Minutes [4] of it describe it as a "Peace Meeting Between Malae Enterprise and Block Owners on Reregana Roviana Lagoon". A "common operational boundary" was agreed, being the boundary of Mr Warren Qiri's block.

6. The Claimants sought assistance from the Roviana Chiefs. A hearing was held by the Chiefs on 25th October 2011. The First Defendants were given notice of the hearing but did not take part in it. The Chiefs went ahead anyway, they considered the Second Defendants had had sufficient time to, "...have all their necessary documents and information ready...". The Chiefs heard evidence from four witnesses and decided;

"...the Reregana Island is owned by the Ratadonga Tribes. Jack Kegu, Lula Lau, John Ngoro and Warren Qiri were only given by Chief Joseph Kama and Leban. They have encroached into the True landowners land ..."

7. As indicated earlier, the Claimants decided to pursue this matter and filed their Claim and application on 24th November. It is not entirely clear whether the Claimants and the First Defendants accept the Chiefs' decision. The Claimants have introduced it as evidence so it can be presumed they do and the Defendants sort of agree because they say the Chiefs confirm their rights over the disputed land. A map has been produced and it is exhibit JA7 [5]. The Defendants say the dark green area on the map is the land described by the Chiefs. There is no real evidence or argument to indicate whether the Claimants accept that proposition. It would be difficult for the Claimants to pray in aid the Chiefs' decision and at the same time deny the First Defendants have any rights over any part of Reregana Island.

8. There is no real clue why the Claimants (and others) now want nothing to do with the Second Defendants. The agreements signed (JA4 and CB5 referred to in paragraph 4 above) seem to offer the same terms. What is clear is both sides want the land logged. This is an argument about who gets the money from the logging company.

9. There are undoubtedly some triable issues. The extent of the First Defendants' rights, if any, over Reregana land, the "boundary" of the land subject to those rights and the efficacy of the agreement between the First and Second Defendants, to mention just a few. It should be pointed out at this stage section 40 of the Act applies to licences and permits. It must also apply to permissions granted by the Minister. What the Ministers' declaration of exemption cannot do is somehow grant authority to someone to log land if that someone has no interest in the land or has interests which are subject to someone else's superior rights or sanction. However, this is not a case where an interim order should be made restraining funds. This is a clear case where damages would be an adequate remedy. Both sides want the land logged it is only a question of who should do the logging. Neither side has argued that the agreement between the First Defendants and the Second Defendant is any better or any worse than that between the Claimants and Pacific United Ltd. This is not a case where an interim order should be made stopping one side of the other from felling logs. In any event, I have little sympathy for any of the parties in this case. Everyone seems quite happy to operate on the authority of the Ministers declaration (under section 4(1)(c)) no matter that it looks suspiciously like commercial logging being carried out under the guise of agro-development.

Chetwynd J

^[1] See exhibit CB5 to the sworn statement of Clement Base filed 6^th December 2011
^[2] See exhibit JA4 to the sworn statement of John Alevangana filed 24^th November 2011
^[3] See exhibit JA6 to the sworn statement of John Alevangana filed 24^th November 2011.
^[4] See exhibit CB8 to the sworn statement of Clement Base filed 6^th December 2011
^[5] Sworn statement of John Alevangana filed 24th November 2011