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Supreme Court of Vanuatu |
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IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> (Ciurisdiction)
Civil Case No.89 of 2000
IN THE MATTER OF an plication by Samuel Job, Mob, Moses Kahu,
Henry Konali, Tom Shem, Nokham Posen and Peter Namaulul,
as past and/or present members of the Board of Directors of
Nengau Entany Management Company Limited or trustees of
the Nengau Entany Trust
for leave to apply for Orders of Certiorari and Prohibition
AND I MATTER Of THE PRESERVATION OF SITES AND ARTIFACTS (AMENDMENT) REGULATION No. 38 of 1997
BETWEEN:
SAMUEL JOB, MOSES KAHU, HENRY KONALI,
TOM SHEM, NOKHAM POSEN and PETER NAMAULUL,
as past and/or present members of the Board of Directors of
Nengau Entany Management Company Limited
or trustees of the Nengau Entany Trust
Plaintiffs
AND:
THE ATTORNEY GENERAL
Defendant
AND:
CHIEF KALANGA SAamp; OTHERS
Interested Party
Coram: R. Marum MBE J.
Mr. Nigel Morrison for the applicants
Mr. George Nako for the Attorney General
and will abide by the decision of the Court
Mr. George Boar for the Interested Party
JUDGMENT
This was an application for order of orari and Prohibition in respect to the Preservation tion of Sites and Artifacts (Amendment) Regulation No. 38 of 1997 by way of seeking the following declarations: -
1. & &nsp; &nbssp; &nbssp; A an>A declaration that teservation of sites and Artifacts (Amendment) Regulation No. 38 of 1997 made on or abor about the 17th September 1997 was made ultra vires the power of the Minister purporting to make the said regulation.
ass="MsoBoMsoBodyText" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 2. &   &nbp; larecion that the preserviserving sites and Artifacts (Amendment) Regulation No. 38 of 1997 was of no effect ab initio.
The evidence in support of such motion is upon affidavits as filed. No oral evidence taken apart from hearing of submission.
ISSUE
Was the Preservation Site and Artifacts Regulation No.38 of 1997, made within the proper exercise of discretionary power and in accordance with principles of natural justice?
The Supreme Court has jurisdiction under Article 47 in addition to n to its other powers to conduct Judicial reviews on the exercise of powers by Ministers in making regulations to ensure such exercise made fairly and within the law. This function reflected the principle of democratic governing of the people where there is a check and balance on exercise of powers. And as submitted by the Plaintiffs counsel, which I agree that Judicial Review is concerned not with the decision of which review is sought but with the decision making process (R v Chief Constable of North Wales Police, ex p. Evans, the Times July 24, 1882, H.L.)
Summary
The plaintiffs are directors past and present of Nengau Entanyntany Management Co. Ltd. or trustee of Nengau Entany Trust.
Prior to 1992 the Yasur Volcano, Tanna IslanIsland, was at different times under the control of various bodies or committees on Tanna. There were various dispute and allegations of mismanagement, resulting to Civil Case No. 74 of 1992 where the Supreme Court made the following orders: -
a) &&nsp;;&nspp;&nssp; &nbp;
b) & &nsp; &nbssp; &nbssp; Foan>Forming a committee to be known as Tanna volcano committee. That committee to comprise nine members, three each to point
1) &nbbsp; &nbbsp; &nbp; &nbp; &nb p; /span>Neprew commitommittee
an"> 2) &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; p; Thee Sand Sand Area Co
3) &nnsp;&&nsp;;&nspp;&nssp;&nsp;   pan>Nikoletan Coun Council of Chiefs
On the 13th May 1993, the Preservatirvation of sites and Artifacts Regulation No. 13 of 1993 was made by the Minister declaring Yasur Volcano site. The Regulation provides for; the general management and control of the volcano to be vested in the Council of Chief of Tanna; for a trust to be formed and to be known as Nengau Entany Trust, to manage the volcano for the benefit of the Tanna people. The trust was joined by the deed dated the 1st December 1993. The deed provided for the formation of a company called Nengau Entany Management Company Ltd to assist in the management of trust, and provides for directors of company to consist of nine members, 3 from the Neprew Committee, the White Sand Area Council 3 and the Nikoletan Council of Chief 3. The deed and formation of the company was in line with the Supreme Court decision Civil Case No. 74 of 1992. However, the amendment No. 38 of 1997 was made amending Regulation No.12 of 1993 amending only section 3 and section 1 & 2 remain. This amendment changes the management structure of the Nengau Entany Trust as provided for by the �Trust Deed� made in accordance with the decision of the Supreme Court in Civil Case No. 74 of 1992 and right of ownership by Land Court Appeal case No.12 0f 1984. The decision of the Land Court of Appeal is as follows;
�In my opinion, the evidence is so conflicting regarding the land on which the volcano stands, that I cannot accept that either of the parties or their ancestors owned the land. Accordingly, the customary ownership is with the chiefs and the people of Tanna and I so hold�.
class="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1">
Preservation of sites and Artifacts Regulation Noon No. 12 of 1993 Regulation No. 3 states: -
�Management Authority
(2) ; &nsp; Subject to sub regul (1), (1), the council shall incorporate a Trust to be known as the Nengau Entany Trust to manage the Yasur volcano on a commercial basis for the benefit of the people of Tanna.
(3) &nbbsp;& bsp; bsp; Thp; The composition and structure of the Trust which is set up in accordance with sub regulation (2) shall be composed of three members each of the Nikoletan Council of Chiefs, the Nepreu Committee ae White Sands Area Coea Council and shall be subject to approval by the Minister.�
Preservation of Sites and Artifacts (Amendmeendment) Regulation No. 38 of 1997 states: -
�The Preservation of Sites And Artifacts Regulation No. 12 of 1993 is hereby amended in regulation 3 by deleting sub regulation 3 thereof and substituting therefore the following new sub regulation 3: -
The composition and structure of the Trust which is set up in accordccordance with sub regulation (2) shall be composed of the people of Whitesands each of whom shall represent each of those portions of land adjoining the Yasur Volcano shown as land portion Nos. 50, 51, 52, 56, 57, 64, 68, 70 and 71 in the Schedule to these Regulations.
The comion of the Trust shall be s be subject to the approval of the Minister
New development
Basing on this amendment, the parties acted upon it by taking a civil case No. 34 of 2000 in the Magistrate�s Court seeking to enforce the application of the amended Regulation. This case stands adjourned on a basis of consent orders, which have, inter, and established an interim committee to manage the affairs of the Nengau Entany Trust, pending the determination of this matter now before this Court.
Section 11 states: -
�The Minister may by order make regulations for the better carrying out of the provision of the Act.�
Section 2 states: -
class="MsoBoMsoBodyText" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> pan>The Minister may, after consultation with the Board of Management of the Port Vila Cultural Centre, classify any sites of historical, ethnological or artistic interest which is in the possession of any person or body coronate domicile in Vanuatu.�
This amendment created two enforceable legal rights in law;
l"> 1. &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; p; By order of the Court, in Land Court Appeal case No.12/derin rif ownp to anna e and Case4/199ering the estabestablishmlishment oent of thef the trus trust acct account,ount, so t so that any money collected from tourist to be deposited to this trust account and that a committee to be formed and to be known as Tanna Volcano Committee comprising of 3 members each from the Neprew Committee, the White Sands Area Council and Nikoletan Council of Chiefs, incorporated in rule No. 3 of the Preservation of Sites and Artifacts Regulation No. 13 of 1993, which sets out the bodies.
2. &&nsp;;&nspp;&nssp; &nbp;
This amendment removed the benefit from the Chiefs and and the Tanna people, from the volcano and confines it only to the people living in those portions.
Due to both regulations the Neprew Committee, White Sands Area Council and the Nikoletan Council of Chiefs maintain that they are still the recognized group of the trust, and owners by the court order of 12/84, while the new groups by amendment of No. 33 of 1997 maintain that they are now the recognized group of the trust. And therefore, there is a real dispute between these two parties to be sorted out, created by the regulations.
The applicant�s counsel advances that the Ministinister has no power under Section 2 to make such amendment.
On this advant, the Minister under Sect Section 2 of the Act has the discretionary power to classify only any site of historical, ethnological or artistic interest, which is in the possession of any person or body corporate domicile in Vanuatu. To exercise this discretion, the Minister must consult the Board of Management of the Port Vila Cultural Centre first, nothing there to give him the power to allocate ownership. The mandate of the Act called for preservation of sites only and not allocation of management of trust, as that is an incorporation matter for the parties to decide in the formation of the management of the Trust and to be govern in the article of Association of the trust, as taken place already in accordance with Regulation No.12 0f 1993. Section 11 gives the Minister the general power to make regulation and not section 2. I can accept that Regulation No. 38 of 1997 was an exercise of powers by the minister under section 11.
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Reasonsanagement and control
At least the Minister at that time in e in making Regulation No. 12 of 1993 was guided by the: - Land Court Appeal Case No. 12 of 1984; civil case No. 74 0f 1992; the view of Tanna Council of Chief and the interest of the whole Tanna people, and reflects a fair representation of the community, in line with the court�s decisions as to ownership and management. As for Regulation No.38 0f 1997 there are no record or reasons for forming the basis or grounds for the exercise of the minister�s power to make the regulation. Moses Kahu, a Board of Director of past and present in his affidavit, they were not consulted before such amendment took place with all interested party. The interested party will be the whole people of Tanna, represented by the Council of Chief of Tanna divide into those three groups. No evidence to show that all parties were represented before the minister�s exercise of power.
Even though the power of the minister in making regulations is n is not disputed, the Applicant counsel advances that the exercise of that power was; unreasonably; in bad faith; not for the proper purpose; and not in accorded with the spirit and letter of the empowering Act.
I find the minister in making the regulaegulation cannot act a lone but first in consultation with the people of Tanna, represented by those three groups including the Board Members of the Nengau Entany Trust established pursuant to Regulation No. 12 of 1993, and within the finding of the Land Court Appeal in giving the land to chief and the people of Tanna. By not contacting and convening meetings with these groups in taking their views and ideas in effecting the Regulation No. 38 of 1997 will be in breach of the principle of Natural Justice. This principle demonstrates the very essence of the right to be heard. If the minister did not hear their views, and failing to adhere to the court order of 12/84 in giving legal ownership to the people of Tanna before making the regulation, he will be acting unfairly and even seen to be acting unfairly in the interest of the Chiefs and people of Tanna and against the land court order of 12/84. The Land Court Appeal has not been reviewed or changed and remain enforceable by the parties as a right. The minister cannot use legislative power to take away the rights of ownership of the parties under the Land Court Appeal order of 12/84, as that is the final order.
The principle of making laws is mandated under article 16 (1) of the Constitution states: -
�Parliament may make laws for the peace, order and good good government of Vanuatu.�
Even though was for parliamentarians, tns, the minister, being a Member of Parliament must also exercise similar representative approach in making regulation in regulating the rights of the people of Tanna and cannot go outside the Land Court Appeal findings.
minister was the only person under the parent Act empowereowered to determine the rights, by regulations, of the people of Tanna, including the management of the Trust for the people. By operation of S.11 of the Act, it is assumed therein that such power should be exercised fairly and with due consideration of rights and interest adversely affected. By deleting the other groups against their right of ownership over the land, and without giving them a right to be heard was unreasonable in a democratic society govern by the rule of law, and the right to be heard as the basis for fair decision-making. The question one might ask is; if this law remains will the affected people remain in peace? The answer will be no, and the pending court case will tell it so. I find that the minister was acting unreasonably, unfairly and without having proper regards to the rights of the Applicants and the people of Tanna and inconsistence with the finding of the Court, and his decision to make the regulation is declared unjustifiable, unfair and not within the good spirit of the Act in benefiting the people of Tanna, and his decision to make such regulation to be declared annulled and of no effect. In declaring his decision as null and no effect, the regulation No.38 of 1997 stand repealed. This will put the parties back to Regulation No.12 of 1993.
lass="MsoBoMsoBodyText" style="margin-top: 1; margin-bottom: 1"> This finding does not interfere with the power of thef the minister to make regulations on the same subject matter, as long as all parties are heard and within the rights of the parties in the Land Court Appeal finding giving ownership to the Chiefs and people of Tanna.
The intervention of the court is to ensure that the minister acts within his powers, if not than the parties will keep coming back to court for redress on their rights.
The effect of this deciss for all parties to continontinue to run the trust in accordance with the laws and deed in place for the proper management of the Trust for the benefit of the Tanna people.
I therefore grant the following orders as soughtought: -
1. &nbbsp; &nsp; &nbbp;&nnbp;& &nbbsp; &nbp; p; I de that that the Preservation of Sites and Artifacts (Amendment) Regulation Noof 19de onbout the 1>th
l"> 2. &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; p; I declare that the Presg Sites and Artifacts (Amendment) Regulation No. 38 of 1997 is null and void and of n of no effect.
DATED at Port Vila, this 8th day of March 2002.
R. MARUM
Judge
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