Posted by Hiuare
on 27/8/2008, 3:24 pm
202.151.24.241
Perhaps this one will trigger you to discuss on the above subject matter. Paper below is one posted to Ysabel province after this matter is assign to me for preliminary opinion on the issue of who owns minerals in SI? I reserve my right to answer that and substitute it with the issue of ascertainment of sub surface rights to minerals on customary land.
Bye for now
Hiuare
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Sub Surface Rights on Customary Land? What is it?
Introduction
Briefly this article intends to reiterate the phrase that “the law assists those who are vigilant, not those who sleep over their rights”. Without prejudice, all landowners, while struggling to have access to ownership, control and management of all resources, every one is equally responsible to pursue possible rights through the Parliament and the legal system.
No doubt, mining developments for Ysabel Province, is high on Government’s agenda. It is upon Ysabel National leaders, Provincial members, Chiefs and landowners to work together with all parties’ under the Mines and Minerals Act, and no doubt would trigger possible amendments.
The key challenge is who owns minerals in SI, customary landowners and the Government of Solomon Islands or Government of SI itself? Section 2(1) of the Mines & Mineral Act states that
All minerals of every description in or under all lands of whatsoever ownership or tenure or in whatsoever possession or enjoyment they may be, are and shall be deemed always to have been, vested in the people and the Government of Solomon Islands.
The Mines and Mineral’s Act and subsequent amendment do not elaborate on the meaning of this section 2(1).
Solomon Islands Court of Appeal and High Courts’ interpretations of Statutes
When it comes to statute interpretations, courts adopted different rules in order to ascertain true and specific meaning. In Solomon Islands, High Court has to start with section 9 of the Interpretation and General Provisions Act Cap 85 where it states that
(1) An Act speaks from time to time.
(2) Each Act is intended to be read as a whole.
(3) Each Act shall be deemed to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
In Huniehu –v- Attorney general and others Civil Appeal No. 5 of 1996, adopted the case of The Speaker –v- Danny Philip (Appeal No. 9 of 1990”) where the Court of Appeal stated that
In interpreting the laws, the judges are urged to use judicial
ingenuity in appropriate cases, to do justice. One consequences of its approach to interpretation is that the Court should not fail to give a provision the effect it considers the parliament intended, by applying a literal or plain meaning test nor should it attribute to the legislature an intention to produce a capricious or unjust result … ( Kearney J in the State –v- The Independent Tribunal Ex parte Sasakila [1996] PNGLR 491 at 506-507)
In Waena –v- Attorney General Civil Case No. 42 of 1989 the Court held that
The words in a statute must be given their ordinary and natural meaning unless there is some ambiguity. It has also long been accepted that the meaning of a statute and the intention of the legislature when enacting it can properly by ascertained by a consideration of the statute as w hole to arrive at a consistent plan.
Section 2(1) of the Act, is the crux of the matter. It states that all minerals under or whatsoever nature tenure shall always be vested upon the people and the Government of Solomon Islands.
Employing the literal and ordinary meaning of this section, it is the people and the Government of SI that owns minerals in SI. However, when section 2(1) is read together with the rest of the Act, and subsequent amendment, the word people remains vague. Hence, the implication of this section is open for interpretations like who are the people indicated here? Does it refer to ordinary citizens of SI or customary landowners upon which minerals rested on their customary lands? Again, there is no express section or part that states that mineral ownership vested upon customary landowners. The Government practices and what transpired from the whole Act is that ownership is vested upon the Government of SI, inclusive of lesser rights of control, management and administration of mining industry in Solomon Islands.
Of course, all individuals have our own interpretations to assert what each one believes in as the correct interpretation. However, without prejudice, in all legal issues touching national interest, the proper and right authority to determine which interpretation is correct or wrong is the courts. Hence, the assertion that landowners own minerals in SI, and bearing in mind the national interest, which implies, state’s overriding interest, and policies, therefore, I reserve my right to answer this issue at this stage, and prefer the right persons, and proper forum are our politicians both at national and provincial to take this matter further to the Parliament House for possible deliberations.
The irony of this matter which the writer intends to contribute towards this subject matter is that how if large portion of mineral deposits on Ysabel Island rested on sub surface area of customary lands? Does it mean landowners have to claim for sub surface rights? The Act only recognizes surface access rights, section 21(1) of the said Act, and landowners entitle to surface access fees and compensation for damage section 25(1) of the Act. No doubt sub surface rights would include burial grounds, underground water, bore, well, spring, cave, agriculture land for farming, subsistence, and kava industry etc which own by landowners. These are landowners properties' and resources that mining development would disturb or destroy. Do landowners on Ysabel Island, have any cultural rights in order to claim sub surface right of ownership to mineral deposits? Though the common law states that the occupier and owner of private land, owns what is under and above it, section 2(1) does not show any regard to it. Or does the Parliament have to amend section 2 (1) to the effect that any mineral found on the sub surface area belongs to landowners? Or the Government of Solomon Islands has to agree that irrespective of ownership, landowners entitle to sub surface right access fees and compensation for damage inclusive of values of mineral loss. In the present case, though access fees and compensations to damage are awarded, that is limited to surface access rights only. It does not extent and covers loss of values of minerals rested on the sub surface area, since landowners not the owners of minerals in Solomon Islands.
Conclusion
Needless to explain further, first, section 2(1) of the Act, is a matter for the Parliament to consider when affected persons want to pursue justice. Secondly, whether sub surface rights to be included under section 2(1) of the said Act, and whether landowners would claim for values of mineral loss, are matters of substance worth considering under the present 3 prospecting licences granted to mining developers.
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The intention of this opinion is limited to deliberating on this subject matter to the people of Ysabel, and landowners as a whole, and after all it’s a state’s matter of national interest where, affected persons or people have to table possible claim with the government of SI through the parliamentary process and the legal system. Hence, this opinion is not intended to any particular person or entity to rely and act upon it. Any reliance, thereon, is not of the writer. Any response or contact: hiuarelaw@yahoo.com. The writer Mr. Willy Hiuare is a Suva, Fiji based Solicitor. Dated 25/08/2008
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