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Mas Solo Investment Ltd v Nesa [2021] SBCA 3; SICOA-CAC 33 of 2019 (1 February 2021)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

A. Introduction

1. This is an appeal filed on 29^th August 2019 against a judgment of the High Court delivered on 31 July 2019 in favour of the Respondents.
2. The judgment ordered the Appellant to pay damages in the amount of $3,200,000.00 (plus interests) for the harm caused to the Respondents’ livelihood by the Appellant’s failure to adhere to its statutory duty not to intrude into buffer zones on a customary land the Respondents reside, live and occupy.

B Appeal relief sought

3. The appellant seeks the following judgment in lieu of that appealed from:
   • (a) That the appeal be allowed;
   • (b) That the High Court judgment delivered on 31 July 2019 be set aside;
   • (c) That the claim (civil claim No. 492 of 2017) be dismissed;
   • (d) That the Respondents pay the Appellant’s costs of this appeal and the costs below on indemnity basis to be assessed if not agreed.

C. Background

4. The area of land which is the subject of the claim in the court below and this appeal is the Bobokana (also referred to as Block B) (“Bobokana”) which is an area within the larger Gonogano customary land (“Gonogano”). Gonogano is situated in Isabel Province.
5. The other area or part of Gonogano (referred to as Block A) is not the subject of this appeal.
6. Bobokana is customary land and is owned by the Gonogano B Land Holding Group represented by Elliote Havilegu (“Landowners”).
7. The landowners were not a party to the claim in the court below nor are they a party in this appeal.
8. Furthermore, the question of ownership of Bobokana or Gonogano was not an issue in the claim in the High Court nor is it an issue in this appeal.
9. The Appellant is a limited liability company carrying on the business of logging in the Solomon Islands and holds a valid felling licence, Licence No. A101174 (“Licence”) to carry out logging on Gonogano (both Block A and Block B).
10. The Licence was issued following the completion of the timber rights acquisition process prescribed under the Forest Resources and Timber Utilisation Act [CAP. 40] (“FRTU Act”) and after the execution of the necessary agreements with the Landowners and the granting of the relevant Development Consent by the Ministry of Environment.
11. The Respondent Mayson Nesa represents himself and the residents of three villages (Galatha, Momotu and Riusisi) which are located within Bobokana customary land (the Respondents).
12. The logging operations on Gonogano by the Appellant commenced on or about 16 December 2015 and ceased in or about June 2017.
13. On 19 October 2017, the Respondents filed the claim CC492/17 in the High Court seeking a declaration that the Appellant had breached the conditions of the Licence and claiming damages for trespass, nuisance and environmental damage.

D. Judgment appealed from

14. On 31 July 2019, the court delivered its judgment on the claim in favour of the Respondents and ordered the Appellant to pay damages in the sum of $3,200,000.00 (plus interests) for the harm caused to the Respondents’ livelihood by the Appellant’s failure to adhere to its statutory duty not to intrude into buffer zones.

E. Grounds of appeal and submissions

15. Against this judgment, the Appellant has filed this appeal on 29 August 2019 advancing four (4) grounds of appeal; however, appeal grounds 1, 2 and 3 are now abandoned. The only remaining ground is ground 4 which is set out below.
16. Appeal ground 4 is that the learned judge erred in law and in fact in awarding $3,200,000.00 as damages for injury caused to the land and environment in Bobokana lands and such an amount has no basis in law and/or is unreasonably excessive in the circumstances of this case.

1. Appellant’s submissions

17. The Appellant said that the claim in the High Court (CC492/12) was not a case where the Respondents were seeking damages for trespass to their land. It was a case where the Respondents were seeking damages on the basis that the Appellant had breached the terms and conditions of its felling licence and as a result, the Respondents claimed that their livelihood had been affected.
18. The Appellant pointed out that this was a claim in public nuisance for section 4(1) (d) of the Forest and Timber Utilisation Act (FRTU) prohibits a licensee from carrying out logging in breach of the terms and conditions of his or her felling licence and imposes a penalty of $3,000.00 or imprisonment for 2 years or both in the event of a breach of the terms and conditions.
19. The appellant emphasized its point that paragraph (6) of the Appellant’s licence required the Appellant to conduct its logging operations under its licence in a manner that complies with the Solomon Islands Code of Logging Practice of May 2002 (“2002 Code”). The learned judge found that the Appellant had breached paragraphs (6) of its licence. The $3,200,000.00 was therefore awarded on the basis that the Appellant had breached paragraph 6 of its licence.
20. The Appellant noted that the $3,200,000.00 was based on the assessment contained in the Hevalao Report. In that report, $2,000,000.00 was said to be for loss of access and livelihood which were particularised at item 7.1 of the Report and $1,200,000.00 was said to be the costs of rehabilitation which was particularised in item 7.2 of the Report. The Appellant pointed out that the particulars of the items clearly show that those calculations relate to damages to the land and not personal damages or losses incurred by the Respondents or injury suffered by the Respondents.
21. The Appellant submitted that, in this case, apart from the fact that rivers have been polluted and the environment had been affected, there is no evidence of any personal damage, loss or injury suffered by the Respondents or any of them as a result of the logging activities.
22. The Appellant conceded that rivers were polluted and the forest and environment damaged but, however, there is no evidence of any personal damage, loss or injury to any of the Respondents as a result of the polluted rivers and the damage to the forest and environment due to the Appellant’s breach of the terms and conditions of its licence.
23. The Appellant submitted that the damage valued at $3,200,000.00 awarded by the primary Judge was the value of the damage caused to the Bobokana land and its forest and environment. The persons who would have been entitled to this award are the owners of Bobokana land, had they filed a claim for trespass on their land. The $3,200,000.00 is not the value of any damage, loss or injury sustained by the Respondents or any of them personally.
24. The Appellant said that no judicial precedent could be found in regards to the question where, as in this case, the Respondents are not landowners but are simply people living in the area affected by the logging activities and whose rivers are polluted and the forest or environment on which they depended for food, etc., has been damaged.
25. The Appellant observed that in actions based on public nuisance, several remedies are available, including injunctions to stop the illegal activities and damages for any personal injury or loss sustained as a result of the illegal logging activities. In this case, an injunction was no longer available as the claim in the High Court (CC492/17) was filed on 19 October 2017, approximately 4 months after cessation of logging activities on Bobokana on or about 15 June 2017. The only available remedy remaining would be to claim for damages for loss or injury suffered.
26. The Appellant submitted that the law on damages is clear. The object of an award of damages is to compensate the Respondents for damage, loss or injury they have suffered as a result of the Appellant’s conduct and to put the Respondents in the same position as they would have been in (as far as money can do so) if they had not sustained the wrong for which they are now getting their compensation or reparation.
27. The Appellant continued that where a wrong has been committed, the burden is on the Respondents to satisfy the court as to the fact of the damage, loss or injury as well as the quantum of damages payable. Where the necessary evidence to prove the fact of the damage, loss or injury, or the quantum, is not given, the Respondents stand the risk of being awarded only nominal damages as a means of establishing, determining or protecting legal rights.
28. In this case, the Appellant say that there is no evidence of personal damage, loss of injury by the Respondents or any of them. It follows that the Respondents are entitled only to nominal damages.
29. In the light of the above submissions, the Appellant urged the court to grant the relief sought in this appeal which we set them out in the earlier part of this judgment.

2. Respondents’ submissions

30. The Respondents submitted that there are no valid grounds for interfering with the award of damages by the High Court and that the appeal should be dismissed with costs.
31. The Appellant has abandoned grounds of appeal 1, 2 and 3 in the Notice of Appeal at pages 1 and 2 of the Appeal Book. As a result, the Appellant is no longer disputing liability and the only issue is the quantum of damages which the High Court assessed at $3, 200,000.00.
32. In paragraph 2.3 of the Appellant’s submissions, it is stated that this is not a case where the Respondents were seeking damages for trespass. The Respondents’ claim, at pages 11 to 13 of the Appeal Book, does include a claim for damages for trespass as well as for nuisance and environmental damage to the land on which the Respondents reside. As stated in paragraph 1 of the claim the residents of the three villages rely on the natural resources on the land including rivers and water sources for their day to day living. As the trial judge put it at paragraph 13 of his judgment (page 7 of the Appeal Book) “it is worth noting that the environment is like a supermarket in the livelihood of Solomon Islanders”.
33. Appellate courts are cautious when dealing with appeals against awards of damages. As was stated by Daly CJ in Sukumia v Solomon Islands Plantations Ltd [1983] SBHC 8 an appellate court will only interfere if the award of the court below was “wholly erroneous”. That was a personal injuries case but it is submitted the position is the same in the present case (see page 4 of the attached judgment).
34. It is submitted that in this case, the learned trial judge has not acted on a wrong principle of law. He did not misapprehend the facts or, for other reasons, make a wholly erroneous estimate of the damage suffered. The trial judge carefully considered all the evidence and accepted the report and findings and they were not discredited in cross-examination (see cross-examination of Robson Hevalao, the expert called by the Respondents. Mr Hevalao’s report at pages 42 to 53 of the Supplemental Appeal Book). As the trial judge said at paragraph 7 of his judgment (page 5 of the Appeal Book) “So this Court can place reliance on Mr Hevalao’s report as expert evidence. That report is not contradicted in a major way by the report from the Ministry of Environment produced for the defendant”.
35. In paragraph 19 of his judgment, (at page 9 of the Appeal Book), the trial judge concluded that the Respondents had proved their case and (at paragraph 19.2) awarded damages in the sum of $3,200,000.00 based on Mr Hevalao’s report which was prepared after an inspection of the land.
36. In passing it is noted (at page 85 of the Supplemental Appeal Book) there are several references to “beaver zones”. There are not, as might be supposed, areas where large tree felling rodents operate but should be references to “buffer zones” which are areas where logging is prohibited, for example near rivers or water sources.
37. For the reasons set out above the Respondents respectfully submitted that the appeal should be dismissed with costs.

F. Discussions

38. We note from the outset that the Respondents are the people of the three villages (Galala, Momotu and Riusisi). They live, reside and occupy the customary land described as Gonogano land at Isabel Province in the Appellants’ felling licence from generations before the logging operations of the Appellant on the said land. They depended on the said land, its rivers and waters and its environment for their day to day livelihood.
39. It is not disputed that the Appellant was invited by Elliot Navilevu and Michael Lelesai of Monisa Tribe to harvest natural logs and carry out associated logging operations on the customary land described as Gonogano Land, Isabel Province. Elliot Navilevu lives at Bilure Village some 100 km away from the logging operation area and the operations do not affect him and his family directly.
40. During the course of logging operations the Solomon Islands Code of Logging Practice (SICLP) requirements were not followed by the Appellant and its agents. The Respondents reported the matter to the Office Commissioner of Forests and Permanent Secretary (PS) of the Ministry of Forestry for rectification as required but were ignored by the Appellant and little effective action was taken by those offices.
41. The matter was also reported to the Ministry of Environment Conservation and Meteorology for their actions but again assistance was slow in coming from the responsible Minister.
42. The Respondents also organised peaceful demonstrations to stop the logging operations from entering critical areas such as water sources and buffer zones but the Appellant and its agents ignored them.
43. The damage caused by the Appellant and its agents to the environment is affecting the daily livelihood of people from those three (3) villages who reside, live and occupy the said land.
44. As a result, the Respondents resorted to hiring private experts to assess the level of damages caused by the Appellant on the ground. This was the relevance of the Report provided by Mr Robertson Schmider Hevalao filed in the proceedings on 1^st May 2018 in that regard. We will return to this report later on.
45. The Appellant disputed liability in his grounds 1, 2 and 3 of the appeal, however, the Appellant abandoned these grounds (1, 2 and 3) in its appeal submissions. The only remaining issue is that of the quantum of damages which the High Court assessed at $3,200,000.00.
46. We need to say something in respect to liability in this sort of case, although, the liability issue was abandoned by the Appellant in its grounds of appeal.
47. Contrary to what the Appellant’s submissions stated at paragraph 23 of the Appellant’s submissions that this is not a case where the Respondents were seeking damages for trespass, the Respondents’ claim (at pages 11 and 13 of the Appeal Book), does include a claim for damages for trespass as well as for nuisance and environment damage to the land on which the Respondents reside, live and occupy.
48. We consider and agree with the learned trial judge’s findings that the claim was not about ownership over Bobogano customary land area. The claim was about “residents of the three (3) villages of Bobogano area, complaining about damage caused to their livelihood/environment by the (Appellant’s) negligent operation”. The learned judge continued: “Being residents of the three villages, the Respondents have standing to raise complaints about what is a concern to the three villages and their residents ... I am not saying claimants are the landowners of Bobogano land. I am saying claimants are the residents of the three villages inside Bobokana land. This is not unfamiliar for villages in Solomon Islands. People can live together in villages as a community. But they may not all necessarily, own the land they live on, as a community. Some of them may. Some of them may not. But they still live together as a community. But they still own things in that community/village. And they will depend on that environment for their livelihood (cultivation, drinking water, sea and land resources etc) ...”
49. We agree with the learned trial judge that the Respondents have standing to raise the complaints about the harm caused to their environment.
50. We accept that damages can be awarded to them to protect their damaged environment as the trial judge held in this case on the value assessment of the non-commercial damage components of the said contaminated customary land, its rivers, streams, water source, wildlife and environment.
51. We trace the origins of this concept to the public trust doctrine, legal acceptance of the concept that the government and its citizens may act as “stewards” for the environment received a significant impetus in 1972, when Justice Douglas issue his famous dissent in Sierra Club v. Morton [1972] USSC 84; [1972] 405 U.S. 727, suggesting that trees and other natural resources should have judicial standing in their own right [1972] USSC 84; 405 U.S. 727,741 (Douglas J., dissenting) [1972]. Justice Douglas reasoned that the rights of wildlife and natural resources be vindicated in court by “those people who have so frequented the place as to know its values and wonders”. As Justice Douglas explained:
    • “Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation ... Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole – a creature of ecclesiastical law – is an acceptable adversary and large fortunes ride on its cases ... So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it”.
52. We do observe that this is now generally recognised. Environment organisations have standing to sue for actual or potential non-commercial environment damage merely if its members use the land in question “for camping, hiking, fishing, and sightseeing” (See United States v Students Challenging Regulatory Advisory Procedures (SCRAP), [1973] USSC 148; 412 U.S. 669,685 (1973)). In addition to environmental groups, the rights of native american and tribal interests to sue have been recognised, especially where they are suing on behalf of the land they hold as sacred, and which provides the central focus of their cultural and historical identity (see Pyramid Lake Paiute Tribe of Indians v Morton, 354 F. Supp. 252 (DC. Cir 1972 420 VS 962 [1975].
53. In Canada, in Smith v Inco Ltd [2011] ONCA 628 [Smith CA], Ontario residents living in close proximity to a nickel refinery brought a class action for damages for loss of property values caused, inter alia, by soil contamination from the refinery’s activities over sixty – six years. Their claims were based on trespass, nuisance, and strict liability. The claim in nuisance was ultimately unsuccessful, largely due to the failure to show actual and substantive physical injury to land. Nevertheless, the Court of Appeal considered in detail the relevance of private nuisance and confirmed that private nuisance could be available in such cases for unreasonable interference with a property owner’s right, even where the activity causing the harm was lawful and otherwise reasonable at the time.
54. Negligence actions have also considerable applicability to environmental harm as a result of development projects and industrial activities. In many of these situations, an action based on trespass or strict liability is available.
55. We have perused the provisions of the Environment Act of 1998, the River Waters Act [CAP. 135] and the Forest Resources and Timber Utilisation Act [CAP. 40]. We consider the issue of pre-emption of the common law by the statutory provisions of these Acts, they are silent on the question. We are of the view that compliance with the provisions of these Acts, does not remove the need to comply with other Acts or relevant principles of the common law.
56. In the present case, the Respondents have and could have recourse to the common law causes of action of nuisance, trespass, negligence, and also the Rylands v Fletcher [1863] UKHL I, LR 3 HL 330] rule (of strict liability).
57. Sections 14 and 15 of the River Waters Act [Cap 135] attest to the rule in Rylands v Fletcher (of strict liability) as follow:
    • “Presumption
    • 14.Where any water is diverted, or any tree is felled, or any obstruction, interference or building takes place or any damage is caused in contravention of section 5, the owner and the occupier of any land benefiting from such diversion, felling, obstruction, interference, building or damage, shall, in any proceedings under this Act, be presumed, in the absence of any evidence to the contrary, to have caused or effected the diversion, felling, obstruction, interference, building or damage as the case may be”.
    • “Liability for damage
    • 15. No permit or authority granted under this Act shall exempt any person from liability in respect of any damage occasioned by such person to any property, nor shall any easement so granted exempt any person from liability in respect of any damage that does not necessarily result from the due exercise of that easement”.
58. In this case, we reject the Appellant’s submissions that there is no evidence of any personal damage, loss or injury suffered by the Respondents. The reasons being that the Respondents depended on the Bobokana customary land, its rivers, water sources and environment for their livelihood; they have “special interests” in that customary land where they reside, live and occupy and they “have so frequented the place as to know its values and wonders”; they have a right to vindicate in court the harm caused to their rivers, water sources, natural resources and the environment they depend on the said land for their day to day livelihood.
59. We also reject the Appellant’s arguments that the award of $3,200,000.00 as damages for injury caused to the land and environment in Bobokana land and environment have no basis in law and or is unreasonably excessive in the circumstances of this case for the following reasons:
    • (i) The learned trial judge considered and relied on the report of Mr Hevalao on the assessment of environmental damage including: damage to loss biodiversity biomass; loss of useful non timber plants; damage to soil fertility and water quality; intrusion of undesirable weeds and unwanted animal pests and soil acidification and human intercession in abating the effects of soil erosion (at page 6 of the judgment and page 9 of the Appeal Book). For the loss of access and livelihood, Hevalao assessed it to the quantum of $2,000,000.00 and $1,200,000.00 to the costs of rehabilitation for the areas damaged. The total damage assessed was $3,200,000.00 for the damage done to the Respondents’ livelihood and environment as the result of the Appellant and agents breaches of their statutory duty under the Forest Resources and Timber Utilisation Act [CAP. 40] and also under the River Waters Act [CAP. 135];
    • (ii) We agree and adopt the submissions of the Respondent’s Counsel that the learned trial judge has not acted on a wrong principle of law. He did not misapprehend the facts or, for other reasons, make a wholly erroneous estimate of the damage suffered. The learned trial judge carefully considered all the evidence and accepted the report of Robson Hevalao, the expert called by the Respondent. Mr Hevalao’s report and findings were not discredited in cross-examination (see cross-examination at pages 42 to 53 of the Supplemental Book). As the trial judge said (at paragraph 7 of his judgment at page 5 of the Appeal Book) “So this Court can place reliance on Mr Hevalao’s report as an expert”. That report is not contradicted in a major way by the report from the Ministry of Environment produced for the Appellant.
60. We, therefore, accept the trial judge’s conclusion that the Respondents had proved their case and they are entitled to an award of damages in the sum of $3,200,000.00 based on Mr Hevalao’s report which was prepared after an inspection of the land.

G. Disposition

61. We dismiss this appeal.
62. We order that the Respondents are entitled to their costs of and incidentals to this appeal against the Appellant on the standard basis. Such costs are to be agreed or determined.

Goldsbrough P
Lunabek JA
Member
Gavara-Nanu JA
Member