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Sina v Vella La Vella Area Council [1995] SBCLAC 3; Western Customary Land Appeal Case (28 September 1995)

CLAC JUDGEMENT

28th September 1995

This is an appeal against the Vella lavella area council determination of timber rights made U/S 5c of the Forest Resources and timber Utilisation (Ammendment) Act 1990. The area council determination was made on 1st August 1995 following a timber right meeting held at Leona cillage, Vella la Vella on 4th July 1995 in respect of Pezoporo land.

Under section by 5 E of the Act an appeal can only be brought to this court by persons aggrieved by the determination of the council made under section 5c(3)(b) or (c) of the Act.

Subsection (b) reads - whether the persons proposing to grant Tmber rights in question are persons, and represent all persons lawfully entitled to grants such rights, and if not who such persons are; (c) the nature and extend to grant such rights, if any to the applicant; There are 4 apellants in the present case namely 1. John Sina (Sauro tribe); 2. Amos Loku (Pezoporo tribe) 3. Winston Vouku (Zapana tribe) and 4. Rezi Noibule:(Kaurabo tribe).

Having viewed the minutes of the Vella la Vella area council meeting held on 4/7/95 at Leona village, it become apparant that two of the appellants Winston Vouku and Rezi Noibule were not present as their names were not in the list of objectors. Likewise their names were not in the Form II as persons identified as lawfully entitled to grant timber rights in Pezoporo lands but who are not willing to negotiate for the grant of their timber rights.

We are of the view that if they have any claim to timbers rights within the Pezoposo land then they should attend the Timber Right meeting to assertain their rights. In our view they can not sleep over their rights and wait until the area council meets for determination but are coming to this court to claim those rights and asking this court to recognised them. Their failure to attend the Area Council Meeting or even if they attended but do not assertain their rights before the Area Council leaves the council with no option but to arrived at their determination as it so happened in this case. They can not now claim that the area council erred in its determination. Even if they do have genuine claims it is not for this court to determine that now, the appeal of Winston Vouku and Rezi Noibule must therefore be dismissed for the above reasons.

We now turn to the appeal of John Sina. This appellant was present at the timber right meeting and made objections to the granting of timber to the first respondent. His name appeared in the form II as of one the persons who is lawfully able and entitled to grant timber rights. However in his name also appeared in the second schedule to the Form II as person who will not grant timber rights to the Pezoporo Company.

At page 2 of the area council determination paragraph 1. John Sina's name also appear with the following
1. George Gado - Rauru Tribe
2. John Tiketike - Zambana Tribe
3. William Netepito - Kumbo Tribe
4. Nelson Edikera - Reresare
5 Nathaniel Luluku - Jervo Sarapaito

as persons representing other tribes who have lawful rights to grant timber rights within Pezoporo land but who are not willing to grant their timber rights to the company.

Below the names of the these people was a sentence which reads as follows: "The areas of the above persons and tribes have been exclude in the Timber Rights application by the applicant (Sasa Pezoporo).(Sic).

If that is so, we see no basis for John Sina's appeal as the his area was was excluded from timber rights application. For this reason his appeal is without basis and must also be dismissed.

We now turn to the appeal of Emos Loku. This appellant is a younger brother of Chief Monty Jale, as such he is also a member of the Pezoporo tribe. This was not in dispute. There was also no dispute as to the chieftainship of Monty Jale. The appellants was present at the timber right hearing and raise objection to the granting of timber on the basis of environmental purposes. There is no evidence that he dispute anything else such as the ownership of Pezoporo land, or the authority of chief Monty Jale over Pezoporo land, tribe and those living within Pezoporo land.

Since the appellant and the second respondent are brothers and of the same tribe the court feels that there is no land dispute between them or dispute as to Chief Monty Jale's authority.

The facts of this case in our opinion are distinguisable from the case of Hyundai & others -v- Attorney General and others civil case No. 79 of 1993. Since the objection was within the tribe we have to base our decision on the basis of who of these two brothers has authority over the Pezoporo land and tribe and those living within the Pezoporo land. The person who is found to have such authority is in our view, under section 5C(3)(b) represent all the persons who are lawfully entitled to grant timber rights in that land.

In the present case we are satisfied on all the evidence before us that Chief Monty Jale is the person with such authority and therefore represent the tribe for the purpose of granting timber rights on Pezoporo land.

On this basis we do not find that the Vella La Vella area council has erred in law, proceedure or custom in making its determination and the appeal by this appellant must also be dismissed.

The whole appeal is therefore dismissed and the determination of the Vella La Vella Area Council made on 1st August 1995 confirmed.

No Right of appeal.
President. - R. Paizovaki
V. President - J. Lilito
Member - I. Maelagi
Member - J. Zoti
Member - A. Hall
Clerk - E. Kouhota

Respondent - We will submit claim for cost in writing.