Mataitoga v Native Land Trust Board [2007] FJHC 147; HBC 315J.2003S (18 May 2007) 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.