IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 315J OF 2003S

BETWEEN:

BULOU VILISI MATAITOGA
of Lot 6 Ivitavaya Road, Laucala Beach Estate, Civil Servant.
(1ST PLAINTIFF)

BULOU ELENOA QALOMAIWASA
of Lot 23 Kinova Road, Kinoya, Domestic Duties.
(2ND PLAINTIFF)

BULOU AMALAINI QALOMAIWASA
of Lot 94 Waila Housing, Nausori, Civil Servant.
(3RD PLAINTIFF)

BULOU OLIVIA MATANISIGA
of Vuda, Veiseisei, Receptionist, Tanoa Hotel, Nadi.
(4TH PLAINTIFF)

BULOU SULUETI MATAI
of Waisalima, Nakasaleka, Kadavu, Domestic Duties.
(5TH PLAINTIFF)

BULOU ALISI VAVAILAGI
of Vuci Road, Nausori, Domestic Duties.
(6TH PLAINTIFF)

AND:

NATIVE LAND TRUST BOARD
a statutory body that is established under the 
Native Land Trust Act Cap. 134
(1ST DEFENDANT)

NUKUBALAVU BEACH ESTATES LIMITED
a locally registered company. That deals with the
subdivision and Sale of Land
(2ND DEFENDANT)

Counsel for the Plaintiffs: T. Fa: Tevita Fa & Assoc.
Counsel for the 1st Defendant: P. Dalituicama: NLTB Legal Division
Counsel for the 2nd Defendant: P. Knight: Cromptons

Date of Judgment: 18 May, 2007
Time of Judgment: 9.30 a. m.

JUDGMENT

The Plaintiff are six (6) sisters in all and daughters of Ratu Inoke Qalomaiwasa No.1, Turaga ni Yavusa and Mataqali Lomanikoro, of Nakasaleka in Kadavu. Ratu Inoke Qalomaiwasa since deceased was the agnate descendant of Ratu Napolioni Qaranivalu, the owner of an area of native land of 214 acres Known as Waisalima, being Lot 53 on Native Land Commission Sheet reference No: P/13-3. The whole area, according to the Native Lands Commission ("NLC"), was reserved to the owners at the Reserve Commission sitting at Nakasaleka in 1961. The ownership of the land is recorded in the Register of Native Land as follows:

"The Agnate descendants of Ratu Napolioni Qaranivalu whose names are enumerated in the Register of Native Land owners of the Province of Kadavu, Tokatoka No. 444A are recorded….as the proprietary unit owning that piece of land…"

All the Plaintiffs' names appear in the Register of Native Land owners or "Vola ni Kawa Bula" ("VKB") under Tokatoka No.444A. Also included in the VKB is Ratu Orisi Qalomaiwasa the brother to the Plaintiffs.

In May 1989, Ratu Orisi applied to the 1st Defendant to lease a 5 acre piece of land from the reserved Mataqali land on which he intended to build "a diving shed and 10 Fijian bures for tourist accommodation." As the land requested falls under native reserve, the consent of the majority of the native owners pursuant to section 16(2) of the Native Land Trust Act ("the Act") was required. According to the Register of Native Land owners, at the time of the lodging of the application, there were 13 living members of the mataqali of which 9 were adult. The majority of the adult members, including five (5) of the Plaintiffs, signed the consent form agreeing to the lease of 5 acre block to Ratu Orisi. However, as the intention by Ratu Orisi of the land use was for tourist business, and therefore falls outside section 16(2), the native owners, including the Plaintiffs, further applied to have the land de-reserved under section 17.

The original proposal meanwhile had, through discussions with Ratu Orisi and his non-indigenous partners, the NLTB, the district administration, and the local authority, grew into a full blown tourist project and a resort requiring a further 40 acres for a total of 45 acres altogether of mataqali Lomanikoro land. The de-reservation of the 45 acres was approved in July 1991 by the Board and published in the Gazette (FRG No.65 Vol. 5: 13 September 1991). A 99-year Class1 - Special Tourist lease was then offered to Nukubalavu Resort & Dive Centre Limited, of which Ratu Orisi was a director and a 50 per cent shareholder. The other two directors were Clarence Hemstra and Darlene Hemstra, husband and wife. The agreement to lease was issued in January 1992. The shares of Mr and Mrs Hemstra were in July 1992 transferred to David Charles Miller and Mark James Hinton respectively. On 30 November 1993, a variation of the lease was executed, allowing sub-division and allotments of the land, with the right to the lessee. Nukubalavu Resort and Dive Centre Ltd, to sell lots and return the sold lots to the native owners. The land after survey, was sub-divided into 32 residential lots (DP 7435 and 7437) and 4 lots comprising the tourist resort (D.P. 7436) and a formal lease (No. 22832) registered with the Registrar of Titles.

On 4 August 2000, the lease was transferred to Nukubalavu Beach Estate Ltd, previously known since its incorporation in June 1999 until 8 June 2001, as Waisalima Beach Resort Limited. The tourist resort comprising Lots 1, 2 and 4 on DP 7436 has subsequently been sold to another Company, Santoro Limited.

This is the Plaintiffs' application by Originating Summons seeking the following:

(i) A Declaration that the purported dereservation of 45 acres of native reserve land on Lot 53 on Native Lands Commission Sheet Reference No.P.13-3 at Waisalima, Nakasaleka, Kadavu by the Native Land Trust Board as claimed in the Board's letter of 25.07.03 without the written consent of the majority of the owners who are the surviving agnate descendants of the late Ratu Napolioni Qaranivalu who are over the age of 21 years old and who are registered as such in the register of native landowners or Vola ni Kawa Bula with the Native Lands Commission office was done contrary to the provisions of the Native Land Trust Act Cap. 134 and therefore done illegally.

(ii) A Declaration that the 45 acres in question are still native reserve in accordance with the Reserves Commissioner's decision of 1962.

(iii) A Declaration that the purported leasing of 45 acres of native land at Waisalima, Nakasaleka, Kadavu on Native Lands Commission Sheet Reference No. P/13-3 which the first Defendant issued the Second Defendant is illegal on the ground that the native land in question is native reserve over which no lease could be issued to a non-indigenous Fijian without the said native land being first dereserved according to law.

(iv) An Injunction restraining the First Defendant whether by itself, its servants or agents from issuing any lease or licence on any part of the aforesaid 45 acres in question to anybody including the Second Defendant or any nominee or assignee of the Second Defendant.

(v) An Injunction restraining the Second Defendant whether by itself, its servant or agents from continuing to occupy, develop, sub-divide or arranging to lease any part of the aforesaid 45 acres at Waisalima, Nakasaleka, Kadavu to any person until proper dereservation has taken place according to law.

Issues

The central and first issue to be decided is whether the 40 plus 5 acres of native land now subdivided and described in Native Lease No. 22832 and in Deposited Plans 3435, 3436 and 3437, had been excluded and de-reserved in accordance with the Native Land Trust Act ("the Act").

The other issues identified in paragraph 1 to 10 of "Matters/Issues to be Resolved by the Court" in the Minutes of the Pre-Trial Conference, are reliant on the Court's determination of the first.

The Scheme of Native Reserve under the Act

Native land known as native reserves are dealt with in Part III of the Act. "Native reserve" under section 2 "means land set aside and proclaimed as such under the provisions of this Act." Setting aside land as native reserve is made either under section 15 or section 18 of the Act. Section 15 is concerned with setting aside of ordinary native land to native reserve. It states:

"15(1) It shall be lawful for the Board by notice in the Gazette, to set aside any portion of native land as native reserve.

(2) Every such notice in the Gazette shall also be published in a newspaper published in the Fijian language and circulating in Fiji."

In the present day situation, the action of the Board under section 15, is normally precipitated by the recommendation of the Reserve Commissioner acting under the Native Land (Native Reserves) Regulations.

Section 18 deals with Crown or state and or any other land being set aside as native reserve. In here it is the Governor-General (now the President) that is empowered to do so. But there is a qualification that has to be met before the land is reserved. Section 18 states:

"18 (1) If the Governor-General is satisfied that the land belonging to any mataqali is insufficient for the use, maintenance and support of its members it shall be lawful for the Governor-General by proclamation to set aside such Crown land, or land acquired for or on behalf of Fijians by purchase, or in his opinion may be required for the use, maintenance or support of such mataqali. Any area so set aside shall be deemed to be a native reserve.

(2) Any such land set aside under the provisions of subsection (1) shall be fully described in the proclamation by stating the boundaries and area thereof and the name of the mataqali or other division or subdivision of the natives for whose use, maintenance or support such land is set aside, and such proclamation shall be published in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji."

The President must be satisfied that a mataqali does not have sufficient land to use or generally for the members support before he is moved to set aside any land to be native reserve for the benefit of the mataqali.

These land set aside as native reserves from both sections 15 and 18 are registered under the mataqali or other subdivision of natives identified as owners, and the record is kept by the Reserve Commissioner.

Land in native reserve are kept, as the name suggests, in reserve, until it is ultimately required for use by its owners. Nevertheless it may, in the meantime, be allowed by the Board, to be leased to another Fijian (section 16), or de-reserved and leased out to others including non-Fijians (section 17).

The scheme under section 16 allows native reserves to be leased out but only to other Fijians and the Land Development Authority. Even in the case of the latter, lease conditions are very restrictive and allowed leasing and subletting to a Fijian only.

The Process of De-Reservation

The exclusion of land from native reserve, or de-reservation, is dealt with under section 17 of the Act. The section provides as follows:

"17(1) The Board may, upon good cause being shown and with the consent of the native owners of the land, exclude either permanently or for a specified period any portion of land from any native reserve.

(2) Every such exclusion as aforesaid shall be published in the Gazette and in a newspaper published in the Fijian language and circulating in Fiji.

(3) When any native land has been excluded from a native reserve for a specified period such land shall upon the expiration of such period resume the same character and incidents as were attached to it before its exclusion from the reserve." (emphasis added)

The primary consideration before the Board decides to de-reserve a native reserve land is there must exist "a good cause." What exactly constitutes a good cause? To answer this one has to have an appreciation of the objects and reasons of the Act.

The Act came into existence in June 1940 in the form of the Native Land Trust Ordinance. It has since been amended no less than 20 times. However the main objective of the legislation has remained the same throughout, and that is, the protection and preservation of native land in the hands of native owners. To oversee and administer this, the Native Land Trust Board was set up and constituted under section 3 and given the powers under section 4(1) which states:

"4- (1) The control of all native land shall be vested in the Board and all such land shall be administered by the Board for the benefit of all Fijian owners."

Obviously then the "good cause" under section 17 must be "for the benefit" of the Fijian landowner under section 4. It is therefore safe to assume that any activity that, in the view of the Board, will be of benefit to the landowner, maybe deemed "a good cause" that unlocks the door to the de-reservation of native reserve land. There are nevertheless two corollaries to this conclusion. First, is that when I speak of a landowner it, in the concept of the Fijian land ownership system, means the collective ownership in the land be it by the "tokatoka" or "mataqali" or "yavusa", whatever appropriate land ownership unit it maybe. Second, and even more important, is that the concept of a native or a Fijian landowner, in the context of the Native Land Trust Act, means ownership of a piece of native land by a land-owning unit, in perpetuity. Subject only to section 5, (alienation to the Crown) native land cannot be alienated. This means that the Fijian landowner today or at any time, holds the land in trust for future generations. At the very most therefore, a Fijian landowner is only entitled to a beneficial life tenancy of the land in his name. He does not have the legal capacity to give it away except temporarily through licences and leases, but even then only through the trusteeship of the Board (Section 8).

In the opinion of this Court, given its observation above, the Board in reaching the decision to de-reserve under Section 17, the "good cause" consideration must not only include the well being of all the present and existing members of the land-owning unit but also of the future generations of that unit. This means that in any land development ensuing from de-reservation the Board must treat the interests of the unborn in equal measure with those of the living.

The secondary consideration in the process of de-reservation, is the requirement of consent by the landowners. Under Section 17(1), the Board must seek the "consent of the native owners of the land". This is a mandatory requirement. What constitutes consent? This is answered in Regulation 2 of the Native Land (Miscellaneous Forms) Regulations. It states:

"Form of Consent of native owners

2. The consent of native owners  to any matter or thing in respect of which such consent is required to be given under the Act or any regulations made thereunder shall be given in such manner as evidenced in such form as the Board may consider appropriate and such consent shall be deemed to have been given if a majority of the adult native owners shall have signified their consent." (emphasis added)

Court's Consideration

There were two (2) separate de-reservation applications in this case. The first was for the 5 acres, which Ratu Orisi intended to be developed and in which 10 Fijian bures and a diving shed were intended to be built for tourists. In this first application, it is conceded by the Plaintiffs, they were signatures for its de-reservation. The issue of consent does not arise, although the Plaintiffs, in their prayers, insist on a declaration of illegality over the whole leasehold.

It is to the second de-reservation application that we must turn to address the Plaintiffs' case, namely the claim of illegality.

The second de-reservation involving 45 acres, which also included the 5 acres, the subject of the first de-reservation, was approved by the Board on 19 July, 1991. The increase in the land required for de-reservation was the result of a series of consultations in meetings between the Board, the local authorities, the investors and Ratu Orisi between 1989 to 1991, which saw the development grow from a "10 bure" project to a tourists resort. The Board's approval appeared in the Gazetted (FRG No. 65 Vol.5) of 13 September 1991 as follows:

EXCLUSION FROM NATIVE RESERVE

"By Resolution dated 19.8.91, the Native Land Trust Board approved the parcels of land listed hereunder be excluded from Native Reserve on specified given terms:

N.L. Waisalima - N.L.T.B. Case Ref. C/25829

The Board approved an area of 45 acres (subject to survey) owned by the Agnate Descendants of Ratu Napolioni Qaranivalu on NLC Lot 53, Plan No. P/13, 3. Reserve Claim No. 986 in the Tikina of Nakasaleka, Province of Kadavu, to be excluded from Native Reserve for a term of 99 years with effect from 1 January 1992 for Tourism purposes."

The Issue of A Good Cause

The requirement under Section 17(1) that the Board be first satisfied of the existence of "a good cause" before agreeing to de-reserve, was no argued by the Counsel for the Plaintiff. It may well be because of the common perception that what constitutes a good cause, is the exercise of the Board's sole discretion, However, given the Court's interpretation above of the extent and reach of Section 17, the exercise of this discretion, is not beyond review. While the law does not interfere with the proper exercise of the discretion of the Board, it may certainly set limits and bounds and under the circumstances, I am of the view that it can intervene if the discretion is exercised improperly or mistakenly. For example, a land development project that will benefit only the present landowners, while leaving desolate landscape for their children and future generation, may not, in my view, be considered a good cause for the purpose of Section 17.

In this instance, the project where it was first hatched, was for tourist development with the issuance of "Class 1 Special Tourism Lease" and with the main theme being "Resort Accommodation and Diving." It is evident from the affidavit of Savenaca Ralagi on behalf of the Board, that the interests and welfare of present and future landowners were fully discussed in their meetings. The parties agree that the project would benefit all landowners, present and future. The Board revealed that between 1992 when the lease was issued, to October 2003, a total of $67,000.00 had been received by the landowners representing the lease money for the land. It would therefore appear that the Board has satisfied the good cause requirement under Section 17(1). This conclusion, must however he read together with the Court's reflection given what has transpired since. I will revert to it later.

The Consent of the Native Owners

The second pre-requisite for de-reservation of a native reserve land is the consent of the native owners. The Court has already observed above that the consent is mandatory and under Regulation 2 of the Native Land (Miscellaneous Forms) Regulations, means "the consent" of the majority of the adult native owners. Who is a native land owner? He or she must be registered in the Register of Native Land Owners, the "I Vola in Kawa Bula"("VKB") compiled and maintained by Native Land Commission, as required under section 9 of the Native Lands Act (Cap. 133).

In this case the Plaintiffs are claiming that they are native land owners who are correctly registered in the VKB as part of the proprietary unit (yavusa and mataqali Lomanikoro) that owns the 45 acres. On the strict interpretation of section 9 of the Native Lands Act, the Plaintiffs are native land owners, and given that they are all adults, their consent would have been required to make up the majority before the Board proceeded with de-reservation under Section 17(1) of the Act.

It is agreed that at the time of negotiation on the land and including the Board's action to de-reserve in July 1991, there were altogether 10 adult native owners, including all the Plaintiffs. At least 5 out of 10 landowners' consent would have been required by the Board before it decides to de-reserve. The paper presented to the Board in July 1991 recommending the de-reservation stated emphatically that:

"All the nine (9) eligible members of the LOU over 21 years have signed the de-reservation paper and have been verified b y the NLC."

As it turned out the Plaintiffs' consent had neither been sought nor obtained and that therefore one of the 2 pre-requisites of Section 17(1) had not been compiled with.

The 1st Defendant however, argued that the Plaintiffs' consent was not required as the land according to the NLC belonged to the "agnate descendants of Ratu Napolioni Qaranivalu," which therefore precluded the female descendants.

Who are "agnate" descendants

According to the Register of Native Lands, the 45 acres of the subject of this action is part of 214 acres of native reserve in the District of Nakasaleka, Kadavu in Plan P/13-3, owned by the propriety unit described as

"the agnate descendants of Ratu Napolioni Qaranivalu whose names are enumerated in the Register of Native Land Owners of the Province of Kadavu Tokatoka No. 444A…"

"Agnate" is defined by the Shorter Oxford English Dictionary on Historical Principles (3rd Ed. Vol. 1 as:

"1. A descendant by male links from the same male ancestor.

2. A descendant from a common male ancestor ancestor. 3. Adj. Related by the father's side Hence Agnatic a. related to the father's side. Agnatically adv. Agnation descent from a common male ancestor through male links only."

It is clear enough from the definition above that agnate descendants means male offsprings and thereafter male descendants of male heirs to Ratu Napolioni Qaranivalu. Female descendants are excluded. This means in the context of Native Reserve contained in Plan P/13-3, that ownership is limited to male descendants only.

Plaintiffs on the other hand argued that the ownership proprietary unit is described not only as the agnate descendants, but also and including those whose names are enumerated in the VKB. Since their names are entered legitimately in the VKB as being members of the land ownership proprietary unit under Section 9 of the Native Lands Act they are properly land owners defined under Section 2 of the Act and whose consent therefore needed to be sought for de-reservation purposes under Section 17(1)

Unfortunately, this Court does not share the Plaintiffs' interpretation and views of the landownership in this case. The owners of the native reserve are described as "agnate descendants of Ratu Napolioni Qaranivalu whose names are enumerated in the Register of Native Landowners ….." There can only be one possible interpretation to the phrase namely first, that the owners are limited or restricted to the male heirs only of Ratu Napolioni Qaranivalu. Secondly, such male heirs must have their names already registered in the VKB. The fact that in accordance with the general practice and the duties of the NLC, the female descendants of Ratu Napolioni Qaranivalu, including the Plaintiffs, are recorded in the VKB does not make or convert them into agnate descendants. In other words, to qualify to be an owner of native reserve P/13-3, one must be both a male heir and also registered in the VKB. The Plaintiffs can legitimately claim that their names are in the VKB, but they do not meet the first requirement. The fact that their names had been entered in the VKB under Section 9 of the Native Lands Act is not conclusive of ownership. Powers are vested in the NLC to amend their records where there had been genuine mistakes or errors made. I am very conscious however of the nature of our own Fijian traditions and customs that will tend to overlook proprietorship rights over the preservation of family ties generous old. This may explain the benefits that continue to accrue to all the members of the Yavusa Lomanikoro from the lease money, quite apart from the Board's assumption as to the beneficiaries.

In this case, the Court finds that the Plaintiffs are not agnate descendants of Ratu Napolioni Qaranivalu, and therefore their consent was not required.

Was there consent? Of the four (4) agnate descendants, 3 gave their consent at the meeting attended by the Board's representatives at Lomanikoro on 2 November, 1991. In the circumstances, the Court finds that consent was obtained from the native land owners pursuant to Section 17(1) of the Act and it must therefore follow that the Board's decision of de-reservation of the 45 acres of native reserve land, being part of P/33-3, was lawful.

In the end, the Plaintiffs' Summons seeking certain declarations that the de-reservation of 45 acres of native reserve land, part of Lot 53 on NLC Sheet Reference No. P/133-3, was made without the consent of the Plaintiffs and therefore unlawful, and the application for injunctions restraining the 2nd Defendant from continuing to occupy and develop the land in question, must fail.

Finally I return to the aim and objective of setting aside land as native reserve. Its most important purpose as set out in Section 18 of the Act, is to ensure that there is always sufficient land available and in reserve "for the use, maintenance and support" of native landowners whenever the needs arise. The legislature in its wisdom had seen it fit to put in place a scheme that will not only guarantee the availability of land for native owners, but equally important, the protection of these native reserves from alienation. It is why they may only be leased to another Fijian or the Land Development Authority, in the most stringent or circumstances (Section 16) or de-reserved at the discretion of the Board and the consent of the landowners (Section 17). The Board in my view, has the primary responsibility, once the land is de-reserved and become subject of a lease, to ensure at the very lease that the conditions that pertain to leases under Section 16 equally apply to those issued under Section 17. For example, there is a requirement under Section 16(3)(b) that no lease may be granted if the land is likely to be required by the members of the land owning unit during the currency of the lease.

In exercising its discretion in favour of "a good cause" shown to de-reserve, the Board must not only be satisfied as to the material benefits that will accrue to present and future generations, but also mindful that the need of the landowning unit for more land is not thwarted by the existence of any encumbrance on the land such as a lease.

The de-reservation in this case was generally for tourism purposes for a period of 99 years with effect from 1 May 1992. Agreement for Lease (No. 4034) between the landowners and Nukubalavu Resort & Dive Centre Ltd., further specified the preparation and lodging of plans for "a tourist resort to be constructed of substantial native materials on the land comprising of 8 Bure style accommodation units together with central facilities." A special condition to the Agreement stipulated that:

"Notwithstanding anything herein otherwise contained the following provisions shall have effect:-

(i) If the lessee decides to alienate the said lease or any part thereof by sale or transfer within five (5) years from the commencement date of the lease then the lessee shall pay to the lessor a sum equivalent to twenty five per centum (25%) of the total considerations."

On 30 November 1993, the Board and the lessee executed a variation of the lease by the insertion of three (3) more covenants to the above special condition. These allowed the lessee to subdivide and sell lots on the approved lease, the payment of 20 per centum of the gross sale price of each lot to the lessor, and the surrender back to the lessor of the sold lot to administer.

It is very obvious given the facts above, that there was a definite change in the purpose of the lease from that of a tourist resort to sub-division for residential lots for up-market overseas clientele. The original lessee transferred the lease to Waisalima Beach Resort Limited which is now known as Nukubalavu Beach Estates Limited. Part of the lease has now been transferred to Santoro Limited which I presume is also in the business of land development and sale. It certainly would appear from the evidence before the Court, that at no time was there any real effort made by the original lessees, to build a resort on the de-reserved land. The special condition in the Agreement to lease which I have cited above, was, I believe, purposefully put in as an escape provision for the lessee to pursue its own design, which together with the lease variation covenants executed on 30 November, 1993, allowed them to sub-divide the land into residential lots and sell them to foreign owners, and then returning the sold lots back to the Board. No efforts had been made to amend the assessment of rent provisions and other benefits that were to accrue to the landowners which were previously based on hotel or resort takings or gross receipts.

Instead, under the new lease covenants of 14 June 1994, the lessee, in consideration of the sum of $5,000.00 paid as rent to the landowners through the Board, was given the right to subdivide the de-reserved land and sold them as residential lots at huge profits to itself. The lessee, in effect, was merely a land developer and speculator successfully dealing in native reserve, in a way, which I suggest, was not intended by the Act. The scheme, I believe, had cleverly circumvented the strict requirements of Part III of the Act (Native Reserves) and in the end the native reserve P.33/-3, to all intends and purposes, was treated as if it was a freehold.

There is nothing illegal about the action of the original and successor lessees. They merely exploited their opportunities as availed them. It is the Board, as the trustee of native land that is given the final responsibility by law to ensure that native land, including those set aside as native reserves, are protected and administered for the benefit of the Fijian owners. It will be failing in its duty if it were to allow land schemes and land development projects affecting native land under the Act, to be exploited contrary to the objectives of the Act and ultimately to the detriment of the owners.

The Plaintiffs summons is dismissed.

I make no order as to costs.

F. Jitoko
JUDGE

At Suva
18 May 2007