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Maeriua v Tohutarahu Timber Holdings [2012] SBHC 55; HCSI-CC 229 of 2011 (16 July 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)

Civil Claim No. 229 of 2011

BETWEEN

WILSON MAERIUA, GAD NAOHANE, JACOB ARUMAE
WILSON TAPARAOHANA and BENJAMIN AITOROI
Claimants

And

TOHUTARAHU TIMBER HOLDINGS
First Defendant

And

SAMLIMSAN (SI) Ltd
Second Defendant

And

ATTORNEY GENERAL
(Representing Commissioner of Forests)
Third Defendant

Mr Keniapisia for the Claimants
Mr Firigeni for the Third Defendant
No appearances for the First and Second Defendants

Date of Hearing: 2nd July 2012

Date of Judgment: 16th July 2012

Judgment

1. The Claimants sue in their personal capacities as individuals who own customary land rights over Su'upaura land in East Are'are, Malaita Province. The First and Second Defendants took no part in the hearing because judgment has already been given against them on 20th April 2012 for failing to comply with directions and orders and became effective following an unless order. Agreed facts were filed on 14th February 2012.

2. There are several issues to deal with. They relate to a felling licence issued by the Third Defendant on or about 19th August 2009. The issues can be briefly summarised as follows. If the "trustees" of Su'upaura did not sign a timber rights agreement were the First and Second Defendants acting illegally by carrying out logging on the land; and secondly did the licence issued by the Third Defendant cover Su'upaura land?

3. The facts as agreed are relatively straight forward. The First Defendant wanted to obtain a felling licence. In accordance with Part III of the Forest Resources and Timber Utilisation Act [Cap. 40] ('the Act") an application was made to the Commissioner of Forests (section 7(1)). He in turn forwarded the application to Malaita Provincial Government (section 7(2))^[1]. After a bit of a delay, in accordance with section 8(2) the Provincial Secretary published a notice advertising a timber rights hearing^[2]. The hearing was held and minutes taken^[3]. The Malaita Provincial Executive ("MPE") made a determination as they are required to do by section 8(3). MPE then issued a Form II certificate and published it (section 9(2)(a) and (b)). An incomplete copy of the certificate and notice is to be found at pages 100 to 102 of the court book. It is not argued that there was any appeal to the appropriate Customary Land Appeal Court in connection with the determination.

4. Section 11 of the Act sets out the next steps to be taken by the Commissioner. It is worth setting out the section in full:

11. On receipt of the certificate issued under section 9 and on being satisfied that—

(a) the period for lodging an appeal under section 10 has lapsed;

(b) if an appeal has been lodged, it has finally been disposed of; and

(c) the agreement for the granting of the timber rights referred to in such certificate has been duly completed in the prescribed form and manner and that the parties to, and the terms and provisions of, such agreement accord with such certificate or, where there has been an appeal under section 10 with the order of the court determining such appeal,

the Commissioner shall recommend to the appropriate Government to grant approval to such agreement.

That is pretty straightforward and for this case the crucial part is that set out in sub section (c). The Act envisages the Commissioner having sight of the agreement (as everyone is no doubt aware, the form of the agreement is set out in the Act as Form IV) and making sure it complies with the requirements of sub section (c). The determination by MPE in this case involved a number of landowning groups and each group was to sign an agreement. The Commissioner was required to check the agreements were in the prescribed form and that the parties to them were as set out in the determination.

5. The next step in the process is following the Commissioners recommendation the appropriate Government, in this case MPE, issues a Form III, the "certificate in the prescribed form" as required by section 12(1). MPE were required to send the Form III (one for each agreement entered into) to the Commissioner who then notifies the parties to the agreement. It is only then the Commissioner can issue a felling licence.

6. It is not entirely clear why but it is agreed there was no Form IV agreement signed in respect of Su'upaura land. If there was no agreement, the Commissioner could not do what was required of him by sub section (c). He could not make a recommendation to MPE and they could not issue a Form III in respect of Su'upaura land. If there was no Form III for Su'upaura land the Commissioner could not issue a felling licence covering Su'upaura land.

7. There is no copy available but apparently that is exactly what happened. A licence was issued and Su'upaura land was included in it. The First and Second Defendants went ahead with the logging. Without a valid licence covering the land any logging activity on Su'upaura land was made illegal by the provisions of section 4 of the Act.

8. Objections were raised to the activities of the Second Defendant (who were contracted to do the actual logging by the First defendant) on Su'upaura land. They carried on logging anyway relying on the licence issued to them. After more protests and objections the penny finally dropped and the Commissioner wrote to the First Defendants requiring them to show cause why their licence should not be suspended. It is clear from the letter ^[4] the Commissioner had realised there was no agreement and no Form III certificate. On 29th July 2010 the Commissioner wrote to the First Defendant suspending the licence^[5]. He did so because there had been no representations made in response to the "show cause" letter. Any activity purportedly carried out under the authority of the licence was illegal from that date.

9. What happened next is somewhat confusing but it appears that the persons determined by MPE as being entitled to grant timber rights over Su'upaura land did sign an agreement, it was then approved by the Commissioner and MPE issued a Form III in respect of it^[6]. According to his evidence ^[7] the Commissioner then "issued the current licence A10737 ('amended licence')". It is dated 18th November 2010. To add a little more confusion the licence bears the same number as the one issued in August 2009.

10. Given those facts it appears plain that any logging activity on Su'upaura land before 18th November 2010 was illegal. There was no effective licence covering the land until that date.

11. The Claimants argue the suspension of the licence, effective from 29th July 2010, could not be lifted without an appeal being heard by the Minister pursuant to section 39(2) of the Act. I do not believe that is correct. Section 39(1) allows the Commissioner to suspend (or cancel) a licence but he must first give the holder of the licence, "an opportunity of being heard". If he suspends or cancels the licence "Any person aggrieved" by the decision may appeal to the Minister (section 39(2). It should be noticed the holder of the licence must be given a chance to respond to a show cause letter but anyone aggrieved by a decision to suspend or cancel can appeal to the Minister. The section does not go on to preclude the lifting of any suspension by the Commissioner until an appeal is lodged. If the Minister allows the appeal then the Commissioner must lift the suspension or re-instate the licence but the section does not remove any discretion he has to do so even if no appeal is lodged.

12. In summary then I find there was no effective felling licence in respect of Su'upaura land until 18th November 2010. Any logging activity on the land before that date was illegal. Any logging activity on any of the lands named in the licence dated 19th August 2009 from 29th July 2010, when the licence was suspended, until the issue of the "amended licence" on 18th July 2010 was illegal.

13. There is no allegation of trespass against the Third Defendant. There is a judgement against the First and Second Defendants. There is no need to consider the third issue set out in the "Agreed Facts and Issues".

Chetwynd J

^[1] See page 86 of the court book
^[2] See pages 92 and 93 ibid
^[3] See pages 95 to 98 inclusive ibid
^[4] See page 57 ibid
^[5] See page 59 ibid
^[6] See pages 179 to 192 inclusive ibid
^[7] The sworn statement of Moven Reeves filed 25^th March 2012 shown starting at page 76 of the court book