Land & Law

The legal framework used by landowners to negotiate commercial forestry deals has been more trouble than it's worth. This is the view of a Honiara lawyer with experience in natural resource litigation.

"Cases where logging actually contributes to community advancement are very few," says Philip Tagini, a partner in the firm Global Lawyers. "The framework for harvesting forestry creates more conflicts and frictions among communities - and particularly tribal members - than is justified by the economic gains."

Dr Tagini is referring to the complex procedures resource owners need to follow under the Forest Resources & Timber Utilisation Act. Disputes come in different forms but Dr Tagini believes the most common ones stem from disagreement and resentment over the distribution of benefits. Often in-fighting over the division of revenue, he says, is presented in court as environmental concerns or  allegations that the procedures of the Act have not been followed.

Lack of agreement within the landowning group is no impediment to moving the process forward. If a tribal group is not prepared for the regular flow of income that a logging agreement provides, the Act doesn't make it any easier because it requires just one member of the landowning group to agree to a logging application for the process to be activated. The law, however, does provide a forum to air the many grievances that arise, not least of which are challenges to the ownership of so-called 'timber rights'. Dr Tagini says those opposed to the application do themselves no favours when they often do not turn up to the timber rights hearing, forfeiting their right to take their claim to the Customary Land Appeal Court.

Even those that do attend the hearing can dispute the outcome. Challenges to granting licences can end up in the High Court and be bogged down for years

 
 

So that the application cannot be rushed through, the Act provides for two months' notice before a hearing can go ahead but this is often not complied with. In addition, in 2007 the then Commissioner of Forests complained that while the provinces administered these hearings, they had no budget to do so. The logging companies who apply for licences fund the hearings in whose outcomes they have a direct interest.

 
 

The long-term trend in the regulation of Solomon forests since independence has been a weakening of central control. Attempts to control both resource owners and loggers for the sake of future (sustainable) forest use have met with counter-claims that landowners must control their own destiny. But unrevised laws have often allowed empowered landowners to be separated from their resource. The Act, despite its various changes, is a mechanism for splitting up landowners between those who own 'timber rights' and those who don't. The courts have dutifully followed this logic as one judge spelt out in 1989: ”The right to grant the timber rights and the identification of the people with that right is entirely separate from any mention of the landowners.”

 
 

Alternatively, logging companies can be spared the trouble of applying for a licence themselves if they can find a landowner willing to set up a development company and sub-contract tree felling to them. These business arrangements have tended to be short-term and have not delivered the hands-on checks-and-balances that forestry officers answerable to Honiara have struggled to provide. Such landowner enterprise has again more often than not divided clan members; in southwest Isabel it has also led to accusations of undermining the matrilineal system of land inheritance.

 
 

In this case at Allardyce tract, a landowner company obtained a licence to log registered land. The customary land had been registered by landowners as trustees. Those members of the landowning group who oppose the private deals entered into by their relatives have been cut out of any benefits. But the ability of local companies to gain logging licences does not cancel out the customary rights of those who have been sidelined. In fact, company directors must still fulfill their obligations as trustees for the landholding group. According to law lecturer at The University of the South Pacific's Port Vila campus, Joseph Foukona, the rights of trustees do not override customary law. 

 
 

"In circumstances where trustees abuse their rights or obligations, non trustees or customary owners could challenge this," he said. But according to Dr Tagini, in internal clan disputes there is a reluctance to do so. 

 
 

"In a few instances when these are sued, the disagreement are couched in such a way that it is not seen as direct conflict between blood relations," he said. "This is an example of where the law would provide redress, but obtaining the redress would be contrary to customary principles."

 
 

Another trend in recent decades has been to bring provincial governments into the business of resource development. The above example from Isabel shows what happens when local resource owners encroach on provincial land and create competition for the same revenue stream. Recent criticisms of the inequitable deals that resource owners are left with are nothing new. Revenue-hungry provincial politicians are in the business of contracting foreign firms to log land they control just like customary landowners. But they are locked into the same model of extraction that saw over a million cubic metres of timber move offshore last year, the vast bulk of it as unprocessed round logs.

 
 

"Provincial governments are no better than landowners at extracting terms equitable to the amount of resources extracted," Dr Tagini said. "The level of knowledge of the parties is just assymetrical [and] it is hard to leverage any deals."

 
 

The Forests Minister in on record as favouring a drop in yearly exports by 25% but admits that under current laws the government has no power to achieve this result. But a forest bill drafted in 2004 and designed to overhaul the entire sector has still not yet made it to parliament. Ineffectual and unenforceable government policy such as the requirement that 20% of timber destined for export be milled locally is no closer to being realised since the withdrawal this month of the Timber Development and Marketing Authority Bill. The proposed law is designed to redistribute much of the value of raw logs to Solomon Islanders by adding value to them prior to export.

 

© Telinga Media. Unauthorised reproduction prohibited

 

 

The legal framework used by landowners to negotiate commercial forestry deals has been more trouble than it's worth. This is the view of a Honiara lawyer with experience in natural resource litigation.

 

"Cases where logging actually contributes to community advancement are very few," says Philip Tagini, a partner in the firm Global Lawyers. "The framework for harvesting forestry creates more conflicts and frictions among communities - and particularly tribal members - than is justified by the economic gains."

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